plaints, and independent trials may be had thereon, it seems advisable to pursue that course. However, the determination of the several matters herein discussed is to be left, as already stated, to the local authorities of the government of Cuba. The Secretary of War transmitted a copy of the foregoing report to the military governor of Cuba inclosed in the following letter: MAY 23, 1901. SIR: I herewith transmit the report of the law officer, Division of Insular Affairs, War Department, on certain questions arising in the Neely and Rathbone cases. This report was prepared for my personal use; but it presents matters which I consider of sufficient importance to require consideration by the officials having charge of these prosecutions, and therefore the report is forwarded to you. While this report is in harmony with the views entertained by me and heretofore communicated to you, I wish it understood that the determination of the questions discussed devolves upon the officials conducting the proceedings, upon whom the responsibilities rest. Very respectfully, Maj. Gen. LEONARD WOOD, U. S. V., Military Governor of Cuba. ELIHU ROOT, Secretary of War. REPORT AS TO THE OWNERSHIP AND RIGHT TO DISPOSE OF VESSELS DISABLED AND SUNK IN THE COASTAL WATERS OF CUBA BY THE NAVAL FORCES OF THE UNITED STATES DURING THE SPANISH-AMERICAN WAR. [Submitted July 18, 1901. Case No. 2797, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge receipt of your request for report on the question of ownership and right to dispose of certain vessels disabled and sunk in the coastal waters of Cuba by the naval forces of the United States during the Spanish-American war. These wrecks are to be considered from two points of view. 1. As property having a market value. 2. As obstructions to navigation and therefore nuisances. If said vessels are to be dealt with as property having a marketable value and disposed of by exercise of the rights of ownership, then the attention of the Secretary is directed to the following provisions of section 3755, Revised Statutes of the United States: * * * The Secretary of the Treasury is authorized to make such contracts and provisions as he may deem for the interests of the Government, for the preservation, sale, or collection of any property, or the proceeds thereof, which may have been wrecked, abandoned, or become derelict, being within the jurisdiction of the United States, and which ought to come to the United States * and in such contracts to allow such compensation * * as the Secretary of the Treasury may deem just and reasonable. No costs or claim shall, however, become chargeable to the United States in so obtaining, preserving, collecting, receiving, or making available property * which shall not be paid from such moneys as shall be realized and received from the property so collected under specific agreement. * * The Attorney-General in letter to the Secretary of the Navy, dated March 29, 1900, written with reference to the wreck of the Alfonso XII, one of the vessels now under consideration, says: These wrecks all appear to be lying on the shores and in the coast waters of Cuba, and as that island is now within the jurisdiction of the United States under the treaty with Spain and in international law, although temporarily so and by means of a military government, it is my opinion that section 3755 gives to the Secretary of the Treasury complete authority in the premises. * * * * Section 3755 undoubtedly * * * extends to the property of private owners which has been wrecked, abandoned, or become direlict, and I do not suppose it would be denied on any ground that the wrecks on the coast of Cuba are the property of the United States as the victors in the war with Spain and in the various engagements in which these vessels were sunk. In said letter the Attorney-General expresses the opinion that the 'Navy Department has neither general nor special authority in law to recover and preserve these wrecks and appurtenances;" and also that the acts of June 14, 1880, and August 2, 1882, making it the duty of the Secretary of War to remove sunken vessels which obstruct the navigable waters of the United States and giving him a certain discretion respecting the sale and disposition of such sunken craft, do not apply to the coast waters of Cuba. By Department letter dated May 4, 1900, the military governor of Cuba was advised that the War Department purposed to act in accordance with the views of the Attorney-General, and a copy of his opinion was therewith transmitted. On May 9, 1900, the military governor of Cuba returned said letter and requested a reconsideration of the subject. September 15, 1900, the military governor of Cuba addressed a communication to the War Department, in which the general subject is presented as follows: I have the honor to request a decision on the following subject: There are a number of old wrecks-Spanish war vessels-scattered along the coasts of Cuba which have long since been abandoned and are rapidly rusting out. I believe that some of them could be sold and the island government derive some benefit from such action. I am constantly in receipt of applications in regard to the wrecking, removing, etc., of these derelicts, and respectfully request that authority be allowed to proceed with the work as may seem to the best interest of the public service here. In order that the Secretary may be fully advised as to the situation in which this matter now stands, it is necessary to direct attention to the proceedings had in the case of the Alfonso XII, one of said wrecks. Application was made to the military government of Cuba for the purchase of this wreck. The application was forwarded to the War Department and referred to the Navy Department. The Secretary of the Navy requested the opinion of the Attorney-General and received the letter above referred to, and thereupon informed the War Department that the Navy Department did not have jurisdiction, and advised that the matter be referred to the Treasury Department. (Doc. 5, No. 1705.) On May 9, 1900, the Secretary of the Treasury advised the Secretary of War as follows: SIR: I have the honor to acknowledge the receipt from your Department of your indorsement dated the 4th instant, upon a recommendation by the captain of the port of Habana, relative to the steamship Alfonso XII, reported to have been wrecked at Mariel, and have to state that this Department will consider a proposition made by the company referred to by the captain of the port in the correspondence, or other reputable company or companies, for the recovery of the property. The proposition should be so made as to conform to the terms of the law governing such cases, as set forth in the Revised Statutes, and it is suggested that the paper be forwarded through the office of the captain of the port, with such remarks or comments indorsed thereon as he may choose to make. Respectfully, L. J. GAGE, Secretary. On July 3, 1900, the Secretary of War addressed the Secretary of the Treasury as follows: SIR: The military government of Cuba desires to dispose of the wreck of the Alfonso XII, a Spanish vessel now lying upon the rocks off the north coast of Cuba, at the entrance of the harbor of Mariel. It is understood that the Navy Department has abandoned all intention of endeavoring to preserve the vessel. I desire to be informed whether you propose, under section 3755 of the Revised Statutes, to make any contract or provision for the preservation or sale of the said vessel. If you do not propose to make such provision, the military government of Cuba will proceed to dispose of the wreck, which has now remained as a serious obstruction to navigation for two years, and which should be removed by some one without further delay. Very respectfully, ELIHU ROOT, Secretary of War. In response the Secretary of the Treasury, on July 6, 1900, wrote as follows (Doc. 8, No. 1705): The Department has been advised that she is of no value except as old iron, and that the wreck is now a dangerous obstruction to navigation. On the 9th of May last the Department advised you that it would consider a proposition by a reputable company or companies for the recovery of the property. Nothing further has been heard of the matter, either through your Department or otherwise. Under the circumstances this Department has no objection to action in accordance with your suggestion, that the military government of Cuba be allowed to dispose of the wreck, which, as you remark, has now remained as a serious obstruction to navigation for two years and which should be removed by some one without further delay. On July 5, 1900, the military governor of Cuba was advised as follows: SIR: Referring to your letter of May 9 last, asking that the wreck of the Spanish transport Alfonso XII be placed at the disposition of the island government, I am directed by the Secretary of War to advise you that the Treasury Department having made no objection to such disposition, you are authorized to proceed to the removal of this derelict in the manner you deem proper. Very respectfully, Maj. Gen. LEONARD WOOD, CLARENCE R. EDWARDS, Lieutenant-Colonel Forty-seventh Infantry, U. S. V., Military Governor of Cuba, Habana, Cuba. There the matter rested until April, 1901, when application was made to the State Department by A. Lotinga for the purchase of the wreck of the said Alfonso XII and two other wrecks, as follows (Case No. 2797): The SECRETARY OF STATE, 86 LEADENHALL STREET, State Department, Washington, D. C., U. S. A. London, E. C., April 16, 1901. SIR: During the Spanish-American war the three steamers Alfonso XII, Santo Domingo, and Antonio Lopez were run ashore on the coast of Cuba, and I understand that the wrecks remain on the rocks to this day. I have friends who would be prepared to purchase same as they lie for breaking-up purposes. I have been in correspondence with this matter both with the Transatlantic Company of Barcelona, formerly owners of the boats, and also with the underwriters, from whom I have received communication that both parties had abandoned the boats altogether. I should feel greatly obliged if you will let me know whether it might be the intention of your Government to dispose of the above-named wrecks, and if so, what steps would be necessary for me to take in the matter. Waiting the honor of your reply, I remain, sir, your obedient servant, A. LOTINGA. The State Department sent copies of this application to the War Department and to the Treasury Department. The Secretary of the Treasury addressed a letter to the Secretary of War, as follows (Doc. 2, No. 2797): The SECRETARY OF WAR. TREASURY DEPARTMENT, OFFICE OF THE SECRETARY, Washington, May 6, 1901. SIR: I have the honor to transmit herewith a copy of a letter from Mr. Alfred Lotinga relative to certain wrecks of Spanish steamers on the coast of Cuba, and will thank you to obtain from the proper authorities of the government in Cuba a report upon the matter. Respectfully, L. J. GAGE, Secretary. The matter was referred to the military governor of Cuba, who returned the papers with the following indorsement (4th Ind., No. 2797): The wrecks in question are the property of the island of Cuba. Arrangements for the removal of the Alfonso XII have already been effected, and it is recommended that the parties mentioned correspond direct with the island government relative to others. If their propositions are advantageous they will be given immediate and favorable consideration. I take the liberty of directing the attention of the Secretary of War to the fact that in addition to the determination of this question of ownership by the Attorney-General, and concurrence in his views by the War, Navy, Treasury, and State departments, the principle involved has been adjudicated by the courts of the United States. The several captures of vessels effected by the naval forces of the United States during the war with Spain were taken into the prize courts, wherein decrees were entered that said vessels should be sold and the proceeds disposed of as the laws of the United States provided. In none of these cases was it held that the vessels were the prize or property of the military government of Cuba or that said government was entitled to participate in the proceeds of the sale. The rights of the captors are the same whether the prize sinks or continues to float, and I am unable to find authority for the proposition that prize of war, captured at sea, inures to the benefit of the military government of the territory off the coast of which the capture was effected. If, therefore, these wrecks are to be considered as property and dealt with for the sole purpose of enabling the proprietor to realize their property value, it appears manifest that the proprietor is not the military government of Cuba. The attention of the Secretary is directed to the question as to the right or authority of the Government of the United States to exercise the powers of a proprietor over said vessels and to sell and convey them. The question involved is: Did the proprietary title to these vessels pass to the United States by the act of capture or destruction? In Brown 2. United States (8 Cranch, 110) Mr. Justice Story said (p. 148): * * * Even as to captures actually made under such commissions no absolute title by confiscation vests in the captors until a sentence of condemnation. But until the title should be divested by some overt act of the government and some judicial sentence, the property would unquestionably remain in the British owners, and if a peace should intervene it would be completely beyond the reach of subsequent condemnation. In Jecker et al. . Montgomery (13 How., 498) Mr. Chief Justice Taney, speaking for the court, said (p. 516): As a general rule it is the duty of the captor to bring it within the jurisdiction of a prize court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the act of Congress in cases of capture by ships of war of the United States, and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilized countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property. But there are cases where, from existing circumstances, the captor may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship can not, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a court of the United States. (+ Cr., 293; 7 Id., 423; 2 Gall., 368; 2 Wheat., App. 11, 16; 1 Kent's Com., 359; 6 Rob., 138, 194, 229, 257.) But if no sufficient cause is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capture, and award restitution and damages against the captor, although the seizure as prize was originally lawful, or made upon probable cause. And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a |