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of the application for the concession determines the preferent right of the petitioner, with the exception of those cases in which the minerals shall be those belonging to the second class, in which case the owner of the surface shall be preferred if he undertakes to commence to operate the mine himself within a period of time which the Government must fix, and which shall not be more than thirty days.
When it shall be necessary to build tunnels or head ways or openings and other similar important works for the purpose of examining or for the purpose of transportation or drainage, the proper concession shall be applied for. In case the owners oi other contiguous concessions through which these works shall have to pass should object to the execution thereof they shall not be carried out until the proper decision is obtained as to the utility of the work and, if necessary, the condemnation of the other mines.
These are, sir, the principal provisions concerning the legislation of mines in this country.
As to the financial provisions concerning this subject, there are two imposts on mines in the island--the impost called the surface annuity and the 2 per cent on the gross proceeds of mines in operation.
There have been issued in this matter, as was generally the case here with the Spanish Government, so many different and contradictory orders and royal decrees that this taxation legislation on mines may be said to be in a very unsettled and confused condition. A thorough revision of the laws is, therefore, in these matters, of pressing necessity, and a plan is being now taken into consideration to fix and determine this financial legislation on the matter. For the present, the most that can be said is that the annual surface impost is $30 in some cases and $20 in others. The slags and terrier pay annually $1 for each 1,000 square meters of surface extension. Incomplete pertenencias, as well as those exceeding the legal unity, pay in proportion to the extent of their surfaces. Permits for investigation pay $20 every year. As to the 2 per cent to be paid from the gross proceeds of the mine, adequate provisions are in force in order to secure the rights of the State.
With this I bring this report to a close, submitting it to your consideration. As before stated, reform, more than radical change of the laws, is the most pressing need of the moment and such that without it no general plan can be devised for the establishment in Cuba of a stable civil government. In my opinion it is not a difficult task to bring about that reform so as to adapt the laws to the present régime and to the new order of things created here by the withdrawal of the Spanish rule. Your obedient servant,
Secretary of Finance.
REPORT OF MR. J. A. GONZALEZ LANUZA, SECRETARY OF
JUSTICE AND PUBLIC INSTRUCTION, ISLAND OF CUBA.
DEPARTMENT OF JUSTICE AND Public INSTRUCTION,
Habana, September 16, 1899. Maj. Gen. John R. BROOKE,
Military Governor of Cuba. Sir: Pursuant to orders from you I herewith draw up a report of the work done by the department in my charge during the first six months of the present year.
The half year is actually reduced to five months for this otfice. Immediately after my arrival from the United States I had the honor of being presented to you the 31st of January. The same day I made oath, and took possession of my office the 1st of February. From that date to the 30th of June the department of justice and public instruction has accomplished what I hereinafter explain.
When the departments of this military government were created and when the secretaries, then present in. Habana, took possession of their respective offices January 12, the branch of justice continued under the direction of Lieut. Col. Edgar S. Dúdley, judge-advocate, Division of Cuba, and the bureau of public instruction remained under Captain McKenna. During their brief tenure of office neither of these gentlemen found it possible to carry out any systematic plan of work or effect any reorganization or reform. The time was indeed insufficient for them to even become acquainted with current affairs, the régime, and the laws actually in force in Cuba.
For these weighty reasons the undersigned found his department in the same position as when the American officers, by your orders, took charge on the 1st of January of all the Spanish offices.
The first work to be undertaken was the organization of the department. A com. munication from you, transmitted by your chief of staff, warned me that said organization had to be carried out with the greatest economy possible, and also that, with regard to the personnel, some of the old employees should be retained wherever their qualifications showed them to be deserving of this distinction.
The old autonomist department of public instruction was divided into two sections; one, the subsecretary's office, with its subordinate personnel; the other, the bureau of pensions and retired pay for primary teachers, also with its personnel. Each of these had at their disposition some $1,500 for material (office expenses, etc.); thus, without including the branch of justice, the total material allowance of the department of public instruction, reached the sum of $3,000 a year. Taking into account that the secretary received $10,000, that the subsecretary's office expended $18,000 in salaries and the bureau of pensions $10,300, it may be fair to say that, even omitting the $4,000 of the higher board of public instruction and the $15,500 of the so-called corps of inspectors of secondary teaching (which was not created), the department of public instruction spent annually $41,300.
The branch of justice formed part of a department called "grace, justice, and government.” For expenses of material and incidentals this department has been assigned $2,000, from which we may infer that $1,000, more or less, was applied to the branch of justice. There was also some $500 assigned for expenses of criminal statistics, belonging to this branch; for publication of laws, purchase of books, and cost of binding, $2,000, of which $1,000 may be assigned to the first, as something also belonging to justice; and finally, the section de los registros y del notariado disposed of $1,500. This section belongs to the existing department of justice and public instruction. The branch of justice thus spent in material $4,000, which, added to the $3,000 of public instruction, made $7,000. The expenses for material is at present only $1,000. Experience has shown that this figure is barely sufficient, and it entails parsimonious economy; but even were it increased by $500 (more would not be necessary) there would be still quite a considerable economy in our favor, even taking into account the difference between American and Spanish gold.
With regard to the personnel and their expenses we do not include the salaries of the secretary and subsecretary, as they are accounted for in the branch of public instruction. The section of registers used to cost alone annually $11,500 for personnel, and the employees of what might properly be called “section of justice” received $12,800 a year. All these sums added, including public instruction, gave a grand total of $69,600, Spanish gold.
According to the budget which you approved February 1, the whole expenses of this department were reduced to $39,160, American currency. To this was added later the salary of an interpreter, a position that had also been added to the other departments-namely, $1,200 a year. The wages of the porter and messengers were increased to $300, to put them on a par with similar positions in the other departments; and later on two men were employed to settle the pension accounts of the bureau of pensions for primary teachers whose board has been suppressed. Each of these received $800 a year, and they have now finished their auditing. All that remains in order to bring this matter to a conclusion and to proceed to payment is for the Banco Español to place at the disposal of the government the sums that are deposited there and which belong to those funds. These amounts of $1,200, $300, and $1,600 brought the total expenses up to $12,260. That figure represents our actual budget. The recommendation of economy was, as one may see, strictly followed in the organization of our work.
There remained also in the office several employees of the former departments among these a chief of the office of third class, a second clerk, and two fourth clerks (the ones charged with settling the accounts of the bureau of pensions, and which were selected from the former employees of the suppressed board). In addition to these, several minor clerks and the porter of the department of public instruction were retained. Further on I shall take up again the question of personnel and expenses of the office.
The business connected with the department may be divided into two groups, namely: The first, representing the legal decrees emanating from this office, and submitted to your approval, and published, after their approval, as orders of this military government. The second represents the daily dispatch of business in the departinent in its two principal branches and in the third (also a very important one), constituted by the sección de los “registros y del notariado” (section of registers and matters concerning notaries public).
We shall take up the first decree relating to the branch properly called justice. When the department was organized the whole attention of the secretary was directed, with regard to what refers to the publication of necessary legal decrees, to
the creation of a supreme court in the island, for with the disappearance of Spanish sovereignty it was impossible for the supreme court residing in Madrid to continue transacting our business. This work was immediately carried out by the department, but, as much time was taken up in discussing the subject and in translating the documents even after it was accepted and approved in its definite shape, many other decrees of real importance were published during the interval, which will be taken up hereinafter.
The order of March 4 reestablished the former jurisdiction of the audiencias of Matanzas and Puerto Principe, which had been changed during the war. There were in Cuba six audiencias-three with civil and criminal jurisdiction and three with criminal jurisdiction alone. The first were called territorial, and the second, de lo criminal. The territorial audiencias of Habana had cognizance of the criminal cases of that province, and also its civil cases and those of Pinar del Río; the audiencia of Matanzas extended its civil jurisdiction over that province and the province of Santa Clara. The audiencia of Santiago de Cuba had jurisdiction over that province and the province of Puerto Principe (Camagüey). Each province had thus its own criminal jurisdiction, and every two provinces had a court of appeals with civil jurisdiction. When, on the 18th of July, last year, a certain portion of the province of Santiago was surrendered to General Shafter, the Spanish governor-general, Blanco, issued a decree, on the 19th, to the effect that the audiencia of Puerto Principe should have cognizance of the criminal cases belonging to the unsurrendered portion of Santiago, and that the audiencia of Matanzas should perform the same Office for the civil cases. The audiencia of Puerto Principe was, in fact, the nearest audiencia de lo criminal, and that of Matanzas the nearest territorial audiencia, or one with civil jurisdiction. As the order was still in force this year, and as the enforcement might create complications both absurd and needless, it was necessary, beiore all things, to repeal it and reestablish the former jurisdictions, since the whole of Cuba was once more under one flag. This was the purpose of the decree of March 4.
A new order was published March 23, upon a proposition which was made by this office a few days earlier, and which was justified by a strong political necessity. ('ases had already commenced against Spanish ex-guerrillas and others were being spoken of, either against ex-members of these Spanish irregular corps or against Cuban officers, for homicide or for the destruction of plantations and towns. It was impossible to allow this to continue, because it would have been simply a continuation of the late war on a no less obstinate field, although not as bloody, and a crying necessity was felt by all that peace and quiet should be paramount. The crimes, or rather the outrages of war, however repugnant they might be to the moral sense, could not find in the courts, after the end of the war, their adequate punishment. An order was published, therefore, stopping all cases in operation, prohibiting all suture action tending to establish similar cases, and immediately setting at liberty all prisoners that might be imprisoned under charges connected with them.
But in some courts the provisions of the order of March 23 were misinterpreted and misapplied. They began to stop all proceedings against individuals who had belonged to either army, but were up for crimes that had nothing to do with military operations. This department was even informed that a certain individual who had abducted a young girl was going to be included in an act of pardon, because at the time he committed the crime he belonged to a Spanish military body. This fact and a few others originated the declaration contained in the circular directed by this department under your authority to the six audiencias of the island April 22 and published in the Gazette of the 25th. A distinct order of procedure was fixed thereby and no further difficulties have arisen. The period of time was fixed within which the crimes had been committed and for which prosecution was ordered to be stopped, taking as an initial date the beginning of the revolution, February 24, 1895, and making the period end with the official date of the Spanish evacuation, in different parts of the island, the maximum limit established being January 1, 1899. The acts not subject to prosecution were defined as: “those committed incidentally or because of or during military operations, for the purpose of depriving the enemy, or all considered as such, of certain advantages, or else for the purpose of obtaining them to the detriment of hostile forces or all such that might be considered directly or indirectly their auxiliaries, and always having in view the purpose of strengthening one's own cause and weakening that of the adversary.”. All these provisions contributed toward uprooting an evil that threatened, if not immediately counteracted, to upset our Cuban society that was already so strongly affected by the calamity of a long period of warfare and the evil passions let loose thereby.
A few days later the order of March 29 was published relating to credits guaranteed by mortgages or other rights on real property or attachments on rural real estate.
Three successive proclamations, published in three years, by the Spanish Generals Weyler and Blanco, had suspended action upon credits of this class. The first was almost absolute; the second allowed action in certain cases, and the third reproduced literally the second, or rather it simply extended the period mentioned in it for one year. The last period fixed for the suspension of rights ended the 31st of March. This question had been under consideration for a long time by the government of Cuba; the war had ended; the successive extensions had not the same reason of being; the necessity of defining the relations between debtor and creditor was being felt; the association of landowners had presented a project for a decree (naturally from the debtor's standpoint); several creditors had presented a memorial to this department and the press discussed the question in a heated manner. Considering all this, you had as early as February charged the council of secretaries to study the matter and draw up certain provisions that might meet the crisis. The secretary of justice was the arbiter designated by his colleagues, and after many discussions and long study the council of secretaries reached the agreement formulated in the project presented to you toward the end of March. It contained thirty articles and included all the interesting points of the pending debate, and the work entailed was certainly the most arduous task undertaken by the undersigned in the fulfillment of his duties. Circumstances that may be passed over delayed its publication and gave occasion to the secretary of finance's official voyage to Washington. But as this voyage entailed the necessity of extending for at least one month the situation created by such action, since the last existing extension ended March 31, and the action of the creditors remained pending till that date, it was necessary to issue in the Gazette the before-mentioned order of March 29, the drawing up of which was likewise the task of this office. When the military government received the telegram from the Secretary of War containing the brief solution given to the problem in Washington, the genuine meaning of said telegram was discussed by you in conjunction with the secretary of finance and the undersigned, and the order of April 24, after long debate, was decided upon with a view of settling, as it appeared, the matter definitely. This was not the case, however, because the honorable conviction that you so long entertained concerning the real necessities felt by this country in connection with this delicate matter induced you to request and obtain of His Excellency the President of the United States authority to modify the order in certain capital points. Under said authority and working upon the basis of the original project the decree of June 5 was produced. I shall not speak of this, because it was the exclusive work of the secretary of finance, who had been commissioned by you to draw it up.
The work of March was concluded with the government decree of the 30th, published in the Gazette April 2. The last Spanish governor-general, Jimenez Castellanos, on the 16th and the 27th of December, 1898, published two decrees of pardon. In the first he declared exempt from all punishment, whatever it might be, and free of any crime for which said punishment had been imposed, all individuals who at the period of committing said crimes belonged to the so-called “Corps of Volunteers," of dreadful memory for the Cubans, and whose names will ever appear on many bloody pages of our unhappy history.
In the second decree he declared that in the first were included also those individuals who were termed rebeldes (rebels), that is, such as had not obeyed the summons of the judicial authorities, and were actually in flight, hidden, or who in any other way had eluded justice.
It is useless to comment upon such provisions, reprehensible in themselves, and still more so considering the date of their publication; but for political reasons it was deemed necessary to respect them. To repeal them would have given the Government you represent the appearance of persecuting a conquered foe, and this was out of the question. Moreover, the individuals pardoned had acquired, one might say, the right to be free. Every pardon, however misplaced it may be, should be by its very nature irrevocable. A very perceptible moral reason advises this measure, and moreover such a principle is an express provision of law which regulates here the exercise of pardon. The beneficiaries for that reason were consequently expecting the effective application of grace; but the right of acquiring it was alreally theirs.
It was, however, necessary to regulate somewhat the application of said grace, because the identity of a “ volunteer” was dependent upon a certificate, issued by a company commander, setting forth that such and such an individual belonged at such a date to said corps. These certificates gave rise to palpable frauds, because it has been made evident that many false ones were given through friendship or for money, and this nefarious practice was made all the more easy from the fact of the military archives having been carried to Spain, and among these were the only records of the so-called "subinspection of volunteers.” Moreover, according to the decree of Jimenez Castellanos, the heads of penal establishments were to apply the
provisions of the decree directly, which of course gave rise to mistakes, abuses, and distorted interpretations.
Your order of March 30 provided therefore that after the ratification of the Spanish general's pardon the principle upon which the courts would work in the future would be to establish whether an individual was or was not included in the pardon, and the conditions upon which it should be applied, as well as to show how the fact which gave rise to the pardon was to be proven and upon what justifiable reason it rested. This provision, which, without rescinding the privilege accorded, protected the rights of justice, was so well received by public opinion that even the Spanish papers praised it in their issues following its publication.
On April 1 another order was published, the importance of which is entirely out of proportion to its brevity, namely, the suppression of the tribunal local contencioso-administrativo (local court for administrative cases). I shall have to discuss here these questions in order to throw some light upon them.
In Spain and its former dependencies there has been for a long time a jurisdiction called contencioso administrativo-that is, of questions o. administrative character giving rise to suits of parties against the administration—which is, like nearly all, if not all, the Spanish judicial institutions of this century, an exact copy of an analogous French one. Whenever a government authority publishes an order against which there is no appeal before a higher government authority, either because this does not exist or because the law does not provide for said appeal, the question can be carried before a court that has cognizance of similar causes. The administration is represented in such cases by the fiscal (prosecuting attorney), and the appellants have the representative they appoint. Certain parties interested in upholding the Government's action may also appear as “coadjutors of the administration” to cooperate with the fiscal in defense of the decree which originated the appeal. This appeal can not be admitted against everything that an administrative authority may resolve. Whenever the order provision in question refers to matter concerning the discretional power of said authority, or whenever the question is not properly an administrative one, but rather of civil or criminal character within the competency of the ordinary judicial jurisdiction, the appeal is inadınissible, nor can it be admitted whenever the decrees are simply reproductions of preceding ones that have been declared final or have had the tacit consent of the persons who might have made appeal against them, or whenever the law itself excludes them from the appeal in question. In a few other cases of lesser general importance it is allowed against provisions issued by the administration in the exercise of “regulated faculties”-that is, such as are subject to legal precepts, regulating this exercise itself, and which violates some right of administrative character, established before in favor of the claimant by a law, a regulation, or some other administrative order.
Following the French system, Spain did not give the cognizance of such cases to an ordinary court—that is, one belonging wholly to what is called the “judicial power.” It sent them to a special court, comprised in part of judicial functionaries and in part by administrative officers. There was only one court in Habana, since the appeal could only be executed against the provisions of the central authoritiesthat is, against those whose orders were not subject to appeal through gubernatorial channels. This court was composed of associate justices of the sala de lo civil of our audiencia and of members of the “permanent commission” of the provincial deputation. When these deputations were suppressed by decree of this Government, February 24, the contencioso disappeared in point of fact. Who had cognizance of the pending cases? The audiencia of Habana had raised the question concerning this matter and, moreover, the business connected therewith had remained at a standstill. From what corporation could be taken the administrative associate justices in order to reorganize the court upon the old model? This did not fit well in our new political situation, and for this reason it was absolutely necessary to give the cognizance of these questions to the ordinary jurisdiction, to a court of common law, to an organizatiou of the judiciary. This process, moreover, corresponded to what the undersigned deems to be the natural tendency of our system of the law in its future evolution, to make the judicial power the sole arbiter in all contentions among parties as to individual rights, even where one of said parties be the state. The question as to whether the appeal was suppressed, or, rather, was confounded with the common forms of claims before the courts, had to remain for later on.
I think it would be doubtless a great step forward if it could be established that anyone who felt himself injured by measures taken by the executive power of the state in any of their aspects and against which there are no means of appeal within the limits of this executive should bring a civil suit against the state and ventilate his alleged right before the judicial authority in the ordinary manner. This is undoubtedly the ultimate point of the transformation started by your decree of April