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, before 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. Cases 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 future 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 already 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

66

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 inadmissible, 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 authorities-that 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

1; but this point could not be reached at one bound, because the manner of procedure of the existing contencioso administrativo recourse is much simpler than the actual proceedings of the so-called juicio declarativo (ordinary civil proceedings), the model and type of the civil procedure wherein executory declarations of rights are sought. To undertake radical reform without having touched upon this legal procedure would have been prejudicial to the parties. Good legislative policy suggested something else, and something else was done. The "recourse" (appeal), with all the cases in which it is admissible and with its special form of procedure, remained, but cognizance of it was handed over to an ordinary court, and not to a special one. Anyway the transformation is decisive and the principal step has been taken. Further on I shall have to discuss the subject again in connection with other later measures taken by this Government concerning it.

We reach now the creation of the supreme court, organized under decree of April 14. The project was presented to you in February. It was then recast, and underwent later some minor transformations, its translation being the subject of several revisions. This translation was by no means a simple affair, because there were almost insurmountable difficulties involved in finding English equivalents for the technical terms that are so essentially characteristic of our legal language. This was one of the prime causes that impeded the earlier publication of the decree which had been drawn up about the middle of February.

The supreme court which we have now in Cuba can be said to reproduce in its essentials the supreme court of Spain. It differs somewhat in its organization because ours has but one court of justice, whereas in Spain there is one for civil affairs and another for criminal cases, in addition to the third, which decides as to the "admission" of the recourses called "for error in law or legal doctrine." But in the essential character this court, like the one in Spain, is a court of abrogation and revision (casacion and revision), appeals for annulment of judgment and revision to determine whether appeal shall be admitted or denied.

The appeal for annulment of judgment, of French origin, carries before the supreme court mere questions of right. The facts are declared as proven by the audiencias, either in criminal cases or civil (and now with us also those connected with the contencioso administrativo cases), are facts judged definitely. From them there is no appeal for annulment of judgment, except where in civil and administrative cases there has been in the summing up of the testimony an error in law or fact, and this be proven by authentic documents showing a very evident mistake on the part of the judge. In all other cases, starting from the facts proven and accepting them as they have been stated by the audiencia, the appeal for annulment of judgment rests either upon an erroneous application of the law or upon errors in the essential form of procedure, not the mere formal details, but the forms of greater importance; those, in fact, which constitute a guaranty for the parties interested in the suit. The appeal (recourse) is established in all criminal cases for error in law, and even in these, with the exception of cases called juicios de faltas (proceedings on misdemeanors), wherein are treated errors of minor importance, usually given over to the police courts, the appeal is admitted for "defect in form." Both appeals are established in all contencioso administrativo cases, and with regard to civil cases they are admitted, excepting special and determined forms of procedure, which the law enumerates and declares inadmissible.

The supreme court thus, as a general thing, does not have cognizance of the questions first hand, its natural proper functions being the cognizance of appeals for annulment of judgment. By exception, however, it may and does have what is termed here in technical language, original and special jurisdiction. It has cognizance of cases wherein the civil responsibility of presidents (of the court), associate justices, fiscals, deputy fiscals of the audiencias, is involved; it likewise has cognizance of suits against the secretaries of the military government and the civil government of the provinces, and all those cases, in short, bearing upon offenses committed in the discharge of official duties, which have been brought against the clerk of the court and the deputy clerks of the supreme court itself. The court has, moreover, cognizance in questions of jurisdiction and the analogous ones called de acumulación, questions of consolidation or joining of action that may arise between two audiencias or between justices who belong to two distinct audiencias, and consequently have no higher authority above them but the supreme court. It considers also some matters connected with appeals for annulment of judgment themselves, and which Article VII of the decree of April 14 specifies in detail.

The supreme court has also cognizance of the recourses of revision. These are extraordinary recourses of very rare practical application, which are established against final judgments whenever some later fact demonstrated the absolute impossibility of sustaining them. For instance, whenever judgment has been rendered

upon the strength of some document which later on has been proved to be false; whenever this has been done upon the testimony of witnesses that have been condemned later as false witnesses; whenever it is proved that judgment has been rendered through bribery or collusion. The law enumerates other contingencies, but the above will suffice to give an idea of the character of the "recourse."

The supreme court may admit or deny the revision. In case of its admission, as a general case, a new trial is ordered. This new trial is considered unnecessary in one special case, namely, whenever an individual is condemned for homicide of a person who may have been identified as alive after the penalty has been imposed the court annuls the final sentence.

Such is, in broad lines, the jurisdiction of our supreme court, and such is also the jurisdiction of the supreme court of Spain. Hence I have said that they are both essentially the same; and it had to be so, since the laws of procedure, both civil and criminal, are preserved in their essential elements. The legal system-the system as a whole-remains unchanged, because there was neither time nor opportunity to change it. It would have been absurd to alter the final transaction, the end and crown of the system itself. Apart from the personal opinions of the undersigned concerning the appeal for annulment of judgment, which he is far from considering absurd, it would have been a most unjustifiable absurdity to either change it radically or suppress it. To do this we should have been forced to revise from top to bottom our whole judicial organization and our entire system of procedure. One might well ask what time this would have taken, and meanwhile Cuba would have been without a supreme court. This was impossible in the first place, because the existing laws forbade it, and, secondly, the twelve articles of the treaty of Paris itself opposed such action.

Our supreme court differs from that of Spain in organization and in its competency in contencioso administrativo cases. We have already touched upon this when we discussed the suppression of the local court de lo contencioso. Of the first little is to be said now, because the whole thing may be summed up by saying that it has only one court of justice, as stated before. The president of the court presides over the sala de justicia, without there being any difference between the position of the president of the court (tribunal) and that of president of the sala, this being the same in the Spanish judicial organization. As we shall demonstrate further on, one of the essential reforms in the procedure before the supreme court was that the admission of the appeals should belong to the audiencias, or, generally, to the court that rendered the judgment which originated the appeal. In the Spanish system the supreme court decided in matters concerning errors in law, whether appeals based upon them should be admitted or denied. After they were admitted it passed judgment upon the main question. I simply mention the reform without entering into explanations, because they would require a detailed exposition of certain legal institutions that are not understood by those who are not familiar with our system of procedure.

The supreme court, finally, can constitute itself into a sala de gobierno (a court sitting in administrative session) for questions of internal order, or to supervise the working of the lower courts, or to exercise what is called "disciplinary jurisdiction' (correction of delinquencies not included in the penal code). This court may be consulted also by the government in the matter of legislative reforms. The undersigned, at your express order, submitted the law of procedure to the supreme court for criticism. I shall now discuss it, as follows:

It was published June 26, without following in its exposition the order of dates, although it might seem natural that this matter should be considered immediately after considering the organization of the supreme court. It was my principal idea to make one procedure, or rather a single form of procedure, of the four that our legislation formerly established for appeals for annulment of judgment in criminal and civil cases. I have already stated that our laws provided for two classes of appeals in criminal actions or civil suits before the supreme court, namely, the recourse for "error in law" and the recourse for "defect in form." In the first the supreme court itself admitted the recourse, and after its admission, pursued the proceeding relating to it and rendered judgment upon the fundamental point of the matter in question. The audiencia, as expressed in our legal language, simply "recognized" that the intention had been expressed to establish it (the recourse), and issued a certified copy of the sentence in order that it might accompany the recourse before the supreme court. On the other hand, the audiencia decided upon the admission of recourses for "defect in form." This proceeding, in the recourses for "error in law," was not purely formal. It did not limit itself to inquire whether the judgment was susceptible to such interpellation, whether this had been established in good time, and whether, in establishing it, the proper legal requirements