The report shows that Captain Wotherspoon retains possession of the trunk, a portion of the wearing apparel, and certain papers, which he states are of no salable value at Iloilo and are retained subject to further disposition.

Upon the receipt of the report and two packages containing the effects of the deceased forwarded to the State Department, the Secretary of State referred the original communication from Captain Wotherspoon and the packages to the War Department by letter from the Hon. Thomas W. Cridler, Third Assistant Secretary of State.

By this action it is understood that the State Department declines to assume responsibility in the further disposal of the effects of Mortimer Cook, deceased, and entertains the view that jurisdiction in the premises attaches to the War Department.

There also appears in said letter from the State Department a suggestion expressed as follows:

It would appear from an order to Captain Wotherspoon from military headquarters, which accompanies the letter, that he is performing duties similar to those performed by a consular agent, and that for that reason he signs hin.self acting consular agent.

I would suggest that the attention of Captain Wotherspoon be called to the fact that as the Philippines have been taken possession of by the United States and are now under the control of the War Department, there can no longer be either actual or acting consular officers in these islands and that no reports can properly be made by him to this Department.

By Circular No. 16, Division of Customs and Insular Affairs, issued by the War Departmt May 11, 1899, it was ordered:

Collectors of customs appointed by the military authorities of the United States at ports in territory under military government are hereby directed to perform the duties formerly belonging to United States consuls or consular officers in such territory, so far as concerns seamen, vessels, clearances, etc.

This order was necessary to enable the territories to engage in commerce with this and other nations, and I am advised that the action of the collectors in the performance of their duties as consular agents in matters relating to commerce are recognized by custom-house officers. of the United States and of other nations.

It will be observed that the order above quoted authorizes the performance of such duties as concern seamen, vessels, clearances, etc., and therefore limits the authority of such officers to matters involved in the commerce of the country, and would not authorize them to act as consular agents of the United States in administering upon the estate of a citizen of the United States.

From the papers filed herein it does not appear what action has been taken by the Treasury Department regarding the money derived from the sale of the effects of Mortimer Cook, which has been remitted to the Secretary of the Treasury. This Department has, however,

received the following letter from the Auditor of the Treasury for the State and other Departments:

Hon. G. D. MEIKLEJOHN,

WASHINGTON, D. C., February 15, 1900.

Assistant Secretary of War, Washington, D. C.

SIR: I have to request that this office may be furnished with the inventory of the effects of Mortimer Cook, deceased, together with what information has been received by the War Department in regard to the heirs of the said deceased. The Third Assistant Secretary of State informed this office on the 1st instant that the original report and its inclosures, of the estate of Mr. Cook, received from Captain Wotherspoon, Iloilo, P. I., were sent to the War Department. Respectfully,

ERNST G. TIMME, Auditor.
P. C. A.

Apparently the State Department refuses to consider the collector of the port of Iloilo as authorized to exercise the powers of a consular agent of the United States in the administration of estates of American citizens, deceased, while the Treasury Department entertained the view that he is authorized to exercise such powers.

It will be seen that the first question presented is, to what Department does jurisdiction attach? If the holding of the State Department is correct, the order of Captain Wotherspoon to proceed as consular agent was without authority and must be held as simply a direction that, as an officer exercising authority in territory subject to martial rule, he should be guided by rules prescribed for the action in such cases by consular agents of the United States, in which event I am of the opinion that the Treasury Department would not acquire jurisdiction, and the proper course would be for that Department to transmit the funds realized from the sale of the effects of Mortimer Cook to the War Department, and the further action in the matter be taken by this Department.

If the State Department refuses to recognize or consider the collector at the port of Iloilo as a consular agent of the United States possessing authority to act officially in matters relating to the estate of a citizen of the United States who dies in that collection district, it would seem that the War Department, in the absence of an Executive order conferring such authority, can not deal with this property as having been administered upon by a consular agent of the United States and thereby subjected to the rules and regulations established for the disposal of estates so administered.

I regret the necessity of being obliged to report this conclusion, for a very happy solution of the matter for this Department would be to allow the Treasury Department to assume responsibility for further action herein and terminate the proceeding in this Department by noti

fying Mrs. Farrie Cook Litchfield, at the Plaza Hotel, Chicago, Ill., and the persons who may hereafter make inquiry, where the property is deposited.

This Department, however, is charged with the duties of civil government in the Philippine Islands at the present time, and upon it primarily devolves the protection of rights and property therein.

It would appear from the papers herein that said Mortimer Cook desired to make a gift of said property to the said Farrie Cook Litchfield, either inter vivos or causa mortis. From the meager account set forth in the papers herein of what took place at the time he made known his desires to the officers attending him it does not specifically appear that he delivered the property to anyone acting as the representative of the donee. Delivery is essential to the completion of a gift either inter vivos or causa mortis. If it can be established that the deceased made a complete gift of the property, an easy solution is afforded of the entire matter by simply carrying out the requirements of the gift by delivering the property or proceeds to the donee. If the gift was completed the title passed to Mrs. Litchfield, and the property does not now belong to the estate of the deceased. If the gift was completed the gentleman accepting its delivery would act as a private citizen and not as an official, and the question of authority would not be presented. It would probably hasten the final disposition of this matter if further inquiry were made to ascertain the facts in regard to the delivery of this property.

If it shall appear that this property was the subject of a completed gift to Mrs. Litchfield, the Secretary of War may then elect to consider his relation to the property as being that of a private citizen whose services are sought to be utilized for the purpose of conveying said property to the donee.

If his discretion or sense of propriety prevents him from performing such service, it would seem proper to return the property to the collector of the port of Iloilo with instruction to adopt other means of delivering the property to Mrs. Litchfield.

The official relation of the Secretary of War to this property arises from the fact that Iloilo is subject to martial rule and, to quote the -language of the military commander of the district, "there being no civil functionary with appropriate powers in this city," it was proper for the military authorities to take charge of said effects and determine what disposition should be made thereof.

If this view of the matter shall be accepted by the Secretary of War it would seem that, by virtue of his powers as the head of said military government, he may consider said property as still being within the custody and possession of the military government of Iloilo, and subject to such order as he may see fit to make in regaid thereto, or the

property may be returned to the immediate jurisdiction and possession of the military authorities in Iloilo with instruction regarding their further action in exercising the powers arising from the condition of martial rule, whereupon the military authorities could determine the question as to who is entitled to receive said property and make delivery thereof.

The attention of the Secretary of War is directed to the fact that the property is now within the United States, and that a proper proceeding would be to subject it to the jurisdiction of one of the probate courts of the United States, and that the Secretary of War may, in his discretion, select the court to whose jurisdiction and custody the property shall be subjected. Upon the property being within the territorial jurisdiction of one of the probate courts of the United States, the court would be at liberty to assume jurisdiction thereover, advertise for claimants, and hear and determine the claims made thereto. In this connection attention is directed to the report of Captain Wotherspoon to the Secretary of State, wherein he says:

*

*

No heirs have presented themselves and nothing is known here as to his heirs. From the photographs found among his effects it appears probable that his wife is still living, but nothing is known of her address.

Allow me further to suggest the propriety of notifying Mrs. Farrie Cook Litchfield, at Plaza Hotel, Chicago, regarding this matter, and affording her the opportunity to take such steps as she may deem advisable to protect her interests, if any exist.

The Secretary of War decided to act in this matter as a private citizen, and thereupon turned over the property to the heirs of the deceased.

EXTRADITION OF FUGITIVES FROM JUSTICE WHO HAVE TAKEN REFUGE IN CUBA UNDER MILITARY GOVERNMENT.

[Submitted January 9, 1900. Case No. 1284, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge the reference to me of the letter from the Mexican ambassador at this capital, addressed to the Secretary of State, directing attention to the fact that there is now in the island of Cuba a person not of American nationality who is accused before the tribunals of Mexico with having committed a crime on Mexican territory, and requesting information as to whom to present a request for extradition, and whether provisional detention of the fugitive will be ordered; also, what rules are to be followed to secure extradition from said island.

The United States is maintaining a provisional government in the island of Cuba for the declared purposes of securing the pacification of said island and affording an opportunity to the inhabitants thereof to erect and maintain, for and by themselves, a government of and for said island. Pursuant to said purposes, the United States required Spain to relinquish all claim of sovereignty over and title to Cuba, and bound itself by treaty as follows:

And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

By reason of its geographical location the island of Cuba is easy of access by ordinary sailing craft from many ports of the United States, Mexico, the states of Central America, and the states of northern South America. Therefore, if Cuba is to be a "city of refuge for the criminals of these countries, to say nothing of the world at large, it will certainly render the task of pacification and the establishment of a stable government therein a most difficult undertaking. To prevent it from being an asylum for criminals is clearly a necessity, and necessity gives warrant for action on the part of military officers charged with performing the function of civil government, when the necessity directly relates to the purpose for which the military government was established.

The provisional government now being maintained in Cuba by the United States is undoubtedly authorized to exercise the "police powers" of a State, one of which is to apprehend and deliver to the proper tribunals persons charged with crime.

One of the obligations that, under international law, result from the fact of the occupation of Cuba by the United States is to promote the peace and welfare of the world. One means of accomplishing this is to enable the tribunals of various Governments to deal with violators of the law.

Every Government has a right to exclude from the territory under its jurisdiction persons who, from criminal propensities or other reasons, are unworthy its protection, or are calculated to work injury to the interests of the Government. This right is not created by extradition treaties. It exists independent of a treaty. Extradition treaties are simply agreements regulating the exercise of this right by the Government in whose territory the wrongdoer is found. Also, every Government has a right to punish the violators of its laws, and for that purpose may apprehend persons charged with such offenses, and extradition treaties are intended to regulate the exercise of that right, not to create it.

The provisional government of Cuba possesses both of these rights, and, in the absence of treaty regulations, is to be governed and con