the inhabitants who remain and submit to the conqueror. By the surrender the inhabitants pass under a "temporary allegiance" to the conqueror and are “bound by such laws," and such only, as "he may choose to recognize and impose. ́ From the nature of the case, no other laws could be obligatory upon them; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedience. "These are well-established principles of the laws of war as recognized and practiced by civilized nations, and they have been sanctioned by the highest judicial tribunal of our own country."

The letter from the Secretary of War, which accompanied the President's message, was as follows:

WAR DEPARTMENT, Washington, July 19, 1848.

SIR: In compliance with your direction to be furnished with such information as may be in this Department, to enable you to answer the resolutions of the House of Representatives of the 10th instant, in relation to the civil governments in New Mexico and California, to the appointment of civil officers therein and the payment of their salaries, to trials for treason against the United States in New Mexico, ete., I have the honor to state that the documents from this Department which accompanied your message to the House of Representatives of the 22d of December, 1846, in reply to a request by that body for information "in relation to the establishment or organization of civil government in any portion of the Territory of Mexico which has been or might be taken possession of by the Army or Navy of the United States," contain all the orders and directions which had been issued by the War Department previous to that time and all the information then known here in regard to the form and character of the governments established in New Mexico and California, the authority by which they were established, and the appointment of civil officers therein.

The documents which accompany this communication contain all the information on the same subjects subsequently received at this Department, as well as all the orders and instructions issued from it since the date of that message.

The governments in New Mexico and California resulted from the conquest and military occupation of these territories, and were established by the military officer in chief command. They have been continued by the same authority, and whatever changes may have occurred in the office of governor have been generally made by the commanding military officer without special instructions from this Department. In respect to California instructions were given to General Kearny to proceed from New Mexico to that territory, and, on his arrival, to hold it and exercise, so far as was necessary, civil functions therein. Col. R. M. Mason, of the First Regiment of Dragoons, was afterwards sent to take chief military command of that territory whenever General Kearny, who had leave to return to the United States, should withdraw from it; and as an incident of such command to exercise the duties of temporary civil governor, or make proper arrangements for a civil government therein.

It appears by the accompanying papers that Charles Bent, who had been appointed civil governor of New Mexico by General Kearny, was murdered in an insurrection which took place in January, 1847, and the office of governor by that event was devolved on Doniciano Vigil, who was secretary of state under Governor Bent.

The appointment not only of governor but of all the other civil functionaries was left to the military authority, which held the country as a conquest from the enemy. There is no other information in this Department in relation to the changes in the civil officers of either New Mexico or California than such as is contained in the documents which accompany this communication.

It is presumed that the expenses of the civil government in both of these territories have been defrayed by revenues raised within the same. There is nothing in the

documents in the Department, nor have I information from any other source, to show that the salaries of the officers of the civil government in either have been paid from the Treasury of the United States, or that any money has been drawn therefrom to defray any part of the expenses of the civil government established in them.

By the

It appears by the accompanying documents that early in January, 1847, there was an insurrection in New Mexico, confined to that part of it which lies east of the Rio Grande, and many murders, mostly of American citizens, were perpetrated. energetic conduct of our military force it was suppressed; not, however, until after considerable loss of life on both sides. Some of the instigators of it, taken in arms, were executed by the military authority, and others deeply implicated in the crimes committed were turned over for trial to a civil tribunal called a district court of the United States." They were, in form, charged with treason against the United States, condemned, and some of them executed. In April, 1847, the person acting as district attorney on their trial addressed a letter to the Attorney-General of the United States (a copy of which is among the documents appended hereto), but it was not received until the latter part of May or the first of June of that year. By this letter it appears that objections were made at the trials by the accused to the jurisdiction of the court. It was urged by them that being citizens of Mexico before the conquest of the territory they did not become thereby citizens of, and, consequently, could not be guilty of the crime of treason against the United States. These objections were overruled, the trials proceeded and resulted in the conviction and execution of several of the accused.

This letter was referred to this Department by the Attorney-General with a suggestion that he would give an official opinion upon the questions presented, if, as is the legal course, it should be requested; but the error in the designation of the offense was too clear to admit of doubt, and it is only in cases of doubt that resort can be had to the Attorney-General for his opinion. On the 26th of June, 1847, I wrote to the commanding officer of Santa Fe a letter (a copy of which accompanies this communication) in which the incorrect description of the crime in the proceedings of the court is pointed out. It is therein stated that "the territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States, and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which may be adopted; they may be tried and punished for offenses. Those in New Mexico, who in the late insurrection were guilty of murder, or instigated others to that crime, were liable to be punished for these acts either by the civil or military authority; but it is not the proper use of legal terms to say that their offense was treason committed against the United States. For to the Government of the United States, as the Government under our Constitution, it would not be correct to say that they owed allegiance. It appears by the letter of Mr. Blair, to which I have referred, that those engaged in the insurrection have been proceeded against as traitors to the United States. In this respect I think there was error, so far as relates to the designation of the offense. Their offense was against the temporary civil government of New Mexico and the laws provided for it, which that government had the right and, indeed, was bound to see executed.” No copy of record of the proceedings of the court, on these trials for treason, has been received at this Department.

Very respectfully, your obedient servant,

To the PRESIDENT.

W. L. MARCY, Secretary of War.

(House Ex. Doc. No. 70, first session, Thirtieth Congress, War Dept. Cong. Doc. 521.)

The situation in New Mexico at that time was as follows: The government of New Mexico asserted sovereignty over said territory. The government of Texas also asserted sovereignty thereover. A portion of the inhabitants acknowledged allegiance to Mexico and a portion to Texas. A portion of the inhabitants acknowledged the authority of the United States resulting from the military occupation, but by far the greater portion of the inhabitants refused such acknowledgment and were attempting to expel the forces of the United States. Attention is directed to the fact that at the time these trials occurred the treaty of peace with Mexico had not been signed, but the United States has always maintained that it acquired title to Mexico and California by conquest, and not from the treaty. The treaty does not pretend to cede territory. It is a treaty of peace in which Mexico acknowledged the rights secured by the United States by conquest. The title of the United States commences with the completion of the conquest and dates from the period when the territory was occupied by the United States military forces.

The military government of Cuba has issued certain orders in respect of pardons by that government. Copies of such of said orders as have come to my notice are transmitted herewith, being Headquarters Division of Cuba, series 1900, Nos. 22, 26, 30, 37, 38, 43, 46, 48, 69, 104, 105, 111, 137, 139, 143, 156, 175, 197, 206, 240, 395, 462, 489, 498, 518. (And also of the series of 1901, Nos. 4, 5, 12, 16, 113.)

In a communication to the War Department, dated May 22, 1901, Maj. Gen. Leonard Wood, military governor of Cuba, having reference to an exercise, by the courts of Cuba, of the power to remit unexpired sentences imposed in criminal cases, says:

Under the Spanish law the sentencing court retains jurisdiction over the prisoner sentenced, as to questions of pardon, release, etc., irrespective of place of imprisonment, whether within or without the island of Cuba.

IN THE MATTER OF THE COMMUTATION BY THE COURTS OF CUBA OF THE SENTENCES HERETOFORE IMPOSED BY SAID COURTS ON PERSONS CONVICTED OF CRIMINAL OFFENSES COMMITTED IN CUBA WHEN THE CONVICTED PERSONS ARE SERVING OUT SAID SENTENCES IN PRISONS SITUATED IN TERRITORY NOW SUBJECT TO THE SOVEREIGNTY OF SPAIN.

[Submitted June 5, 1901. Case No. 277, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge and comply with your request for a report on a matter arising as follows:

Prior to January 1, 1899, certain residents of Cuba were convicted. of criminal offenses and sentenced to imprisonment. These sentences were executed by transporting the persons to Spain and incarcerating

them in penal institutions there situate. Upon the sovereignty of Spain being withdrawn from Cuba, such of these convicts as were serving unexpired sentences remained in the penitentiary in Spain to which they had been committed.

In a communication to the War Department, dated May 22, 1901, Major-General Wood, military governor of Cuba, says (1st End. Doc. No. 40, Case 277):

Under the Spanish law the sentencing court retained jurisdiction over the prisoner sentenced as to questions of pardon, release, etc., irrespective of place of imprisonment, whether within or without the island of Cuba.

The military government of Cuba has issued the following orders: No. 26.] HEADQUARTERS, DIVISION OF CUBA, Habana, January 18, 1900. The military governor of Cuba, upon the recommendation of the secretary of justice, directs the publication of the following order:

I. Hereafter, whatever time prisoners who may be condemned to any of the correctional or light punishments specified in article 24 of the Penal Code may have been held in provisional imprisonment shall be counted as a part of their term of service and deducted therefrom.

II. A like deduction, but limited to one-half the period of provisional imprisonment, shall be made in favor of prisoners sentenced to any of the punishments known as “exemplary punishment" (pena aflictiva) in article 24 of the Penal Code. [SEAL.] ADNA R. CHAFFEE, Brigadier-General, Chief of Staff.

No. 137.]

HEADQUARTERS, DIVISION OF CUBA,

Habana, April 5, 1900.

The military governor of Cuba, upon the recommendation of the secretary of justice, directs the publication of the following order:

Order No. 26, Headquarters Division of Cuba, dated January 18, 1900, being in he nature of a provision favorable to the prisoner, is, in accordance with the provisions of article 21 of the Penal Code, declared to have retroactive effect.

ADNA R. CHAFFEE,

Brigadier-General, U. S. Volunteers, Chief of Staff.

In administering said orders the courts of Cuba have remitted a portion of the sentences imposed by Cuban courts, during the time Cuba was under the sovereignty of Spain, upon Ramon Ulque Mesa, Francisco Risco Orihuela, Florentino de la Paz, Pascual Campos, Santiago Ibañez, Candido Figueroa y Acosta, Tomás Sanchez or Gonzales, and Isidoro Caballero Lozano, each of whom is now confined in a penal institution in Spain. (Doc. 40, Case No. 277.)

The military governor of Cuba requests the War Department to call upon the State Department to enter upon diplomatic negotiations with the Government of Spain to the end that the Government of Spain recognize said modification of said sentences so made by the courts of Cuba. (1 End. Doc. 40, Case No. 277.)

The question for the Secretary of War to determine appears to be: Is the Secretary of War justified in requesting the State Department to inaugurate negotations with Spain to accomplish this purpose?

The treaty of peace between Spain and the United States provides as follows:

ART. XII. Judicial proceedings pending at the time of the exchange of ratifications of this treaty in the territories over which Spain relinquishes or cedes her sovereignty shall be determined according to the following rules:

1. Judgments rendered either in civil suits between private individuals, or in criminal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgments should be carried out.

It will be noticed that judgments in criminal matters are to be considered final in those cases only “with respect to which there is no recourse or right of review under the Spanish law."

If the military governor is correct in saying that under Spanish law the court imposing sentence retains jurisdiction to pardon or release the convicted person and said jurisdiction extended to commutation of sentences, it follows that the convicted persons had a continuing right of recourse to the court in which they were convicted and sentenced, and the court had and retained the right to review the matter; therefore the judgments are not to be considered "final" as that word is used in the treaty.

I understand the purpose of paragraph 1 of Article XII of the treaty to be to preserve the jurisdiction of the courts of Cuba in matters pending before them. If so, Spain is bound to recognize the jurisdiction of the courts of Cuba to exercise the right of commutation of sentence when the right is exercised pursuant to Spanish law.

The Secretary will not fail to observe that the commutation of sentence made in the cases under consideration was made in compliance with the orders of the military government above set forth. Whether or not the Government of Spain will go back of the judgment commuting the sentence and review or consider the reasons whereby the court was induced to enter such judgment, can not be determined by the War Department.

The determination of the Spanish Government as to what it will or will not consider in connection with such commutation, will doubtless turn upon considerations relating to the comity of nations rather than the provisions of the treaty or the requirements of international law.

I understand that the Government of Spain takes the position that native Cubans now undergoing penal servitude in Spain are properly a charge upon the present government of Cuba, which should assume the trouble and expense of their further punishment, and Spain is now seeking to induce the United States to accept this view and permit the return to Cuba of such convicts now in Spain. If such is the case, it appears to the writer that compliance with the request of