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Crown, to the Count O'Reilly, who was the husband of the daughter of the then recently deceased high sheriff.

From the Count O'Reilly the office descended to his heirs and successors, with the approval in each case of the Spanish Crown, to the present Countess O'Reilly y Buena Vista, on whose behalf this proceeding is instituted.

The duties of the high sheriff of Habana were originally divisible into two general classes-national and municipal. In the performance of the duties classified as "national" the high sheriff of Habana resembled the United States marshal of a Territory of the United States. He was an executive officer of the courts, and writs of all classes were served by him or his deputies. For such services he was entitled to fees fixed by law.

His municipal duties resulted from the fact that he was, ex officio, a member of the "ayuntamiento" or city council of Habana and charged with the duty of inspecting the meat supplied to the city and given supervision of the slaughterhouse where the cattle were required to be killed, and had charge of the transportation of the carcasses from the slaughterhouse to the dealers, also the disposal of the refuse, and was required to inspect the weights.

For the performance of these duties he was authorized to exact a fee of 5 "reales fuertes" for each head of large cattle killed in the slaughterhouse of Habana and cartage for hauling the meat. Later the fee for the cattle killed at the slaughterhouse varied in accordance with the times, but was fixed by law. The last rate fixed was 624 cents per head.

The complainants allege that their privileges connected with the slaughter of cattle were worth to them "in the neighborhood of $100, net, per day" at the time they were deprived thereof.

At this point in the review it is proper to explain the interest asserted by Dr. Don Gustavo Gallet Duplessis.

By appropriate provisions the Spanish law permitted the seizure and sale by judicial procedure, to enforce the payment of private indebtedness, of a one-half interest in the emoluments of the privileges appertaining to the slaughterhouse industry possessed by the high sheriff of Habana. Pursuant to said law, Dr. Don Gustavo Gallet Duplessis purchased, at judicial sale, a one-half interest in said emoluments on September 19, 1895, and entered upon the enjoyment thereof.

Upon the American occupation of Habana being established, the military authorities of the United States refused to allow the Countess of Buena Vista and Dr. Don Gustavo Gallett Duplessis to exercise the authority or enjoy the emoluments appertaining to the office of high sheriff of Habana.

Thereupon the interested parties had recourse to General Ludlow, as military governor of the city of Habana, for recognition of their asserted rights, and reinstatement therein. This being denied, they appealed to Major-General Brooke, then military governor of Cuba, for the relief desired. Major-General Brooke refused to recognize their claim or to order reinstatement, and thereupon appeal is made to the Secretary of War.

The relief demanded by the Countess of Buena Vista, as set forth in the prayer of her petition, is as follows:

Your petitioner being thus deprived * * * humbly prays, the premises being considered, that the aforesaid orders be revoked, your petitioner be reinstated in all his property, rights, and privileges, of which said orders deprived him, and that the military governor of Habana be directed to account to and pay over to your petitioner all the moneys of which he has been deprived as aforesaid from the date of such deprivation until he shall be actually repossessed of his property and privileges, or duly indemnified therefor, and that he have such other and further relief as may seem proper. (Doc. 5, p. 6; printed brief.)

(NOTE. In this proceeding the Countess of Buena Vista is represented by her husband, J. Y. Camara. Hence the use of the pronoun "he.")

The demand made by Dr. Don Gustavo Gallet Duplessis, as stated by his counsel, is

1. The repeal or nullification of the orders of the military governor of Habana of May 20, 1899, and of the military governor of Cuba of August 10, 1899, to which this communication refers, and the restoration of all things in connection with the hereditary rights of the O'Reilly family of Habana, and the office of high sheriff of that city, to the status quo existing on the 11th of April, 1899, when, through the proclamation of the treaty of peace with Spain, the abandonment by Spain of all claims of sovereignty over and title to Cuba became an accomplished fact, and the Cuban people became free and independent.

2. The payment by the Government of the United States of all moneys of which Dr. Don Gustavo Gallet Duplessis has been deprived, at the rate of sixty-two dollars and a half per day from the 1st of June, 1899, in which the order of the military governor of Habana of May 20, 1899, went into effect, until the day of the repudiation and repeal of that order and of the order of the military governor of Cuba of August 10, 1899. (See pp. 21, 22, printed brief of Dr. J. I. Rodriguez, counsel for Doctor Duplessis.)

The complainants contend (1) that said office is property; (2) that said property belonged to them on April 11, 1899, when the ratifications of the treaty were mutually exchanged; (3) that since that date they have been deprived of said property by the action of the military government of Cuba; (4) that such deprivation contravenes the provisions of article 8 of the treaty of peace with Spain, and international law.

The learned and distinguished counsel who represent the complainants present elaborate arguments, which are entitled to careful examination and serious consideration, not only because of the arguments. themselves, but of the high professional standing of the authors.

There are also on file herein a number of reports or opinions on ques

tions involved in this controversy submitted by Spanish, Cuban, and American lawyers, in opposition to the claims of the complainants. In common with those on behalf of the complainants, these arguments show a wealth of knowledge and extended research.

The attention and consideration of the Secretary is thus specially directed to the argument of the complainants, instead of submitting a synopsis thereof, as being better calculated to protect their interests, as I feel compelled to report that their argument rests on premises assumed to be correct, but which appear to me as being impossible of demonstration. They are as follows:

1. That complainants were possessed of the rights now asserted and entitled to exercise them on April 11, 1899.

2. That said office itself was and is property, and now belongs to complainants.

If, from the laws of war and nations, or the purpose for which the military invasion of Cuba was undertaken by the United States, it results that the authority of complainants to administer said office ceased upon the establishment of military occupation of Habana, or the office itself became functus officio, it follows that the abrogation of rights now complained of was accomplished by the success of the invasion and not the action of the military government, which action must be held to be simply declaratory of an existing condition and not as creating said condition.

While it is denied herein that the tenure of office of the Spanish officials heretofore exercising authority in Cuba is property, the proposition is advanced that if it were "property" it was property which, being in the track of war, was destroyed thereby, and, being destroyed, is not within the protection of article 8 of the treaty. If relief is to be afforded the complainants under the treaty, such relief arises from article 7 and not article 8.

With this general statement of the purview of this report, examination is made of the several questions embraced therein.

Were the complainants possessed of the rights now asserted, and entitled to exercise them, when the ratifications of the treaty were exchanged on April 11, 1899?

It appears herein that the Spanish Government had adopted a policy for the abolishment of this and similar offices. But the Spanish Government recognized the right of the incumbents to secure indemnity for the deprivation of the incumbency and its emoluments. As to the office of high sheriff of Habana, proceedings were pending to ascertain the amount of such indemnity at the time the American invasion of Cuba occurred, and pending the ascertainment and payment of the indemnity the incumbents were permitted to enjoy the emoluments. Therefore the question will be considered as though the office were one of the fixed and firm governmental institutions of Spanish sovereignty in Cuba.

The complainants insist that they were deprived of their office by the action of General Ludlow, military governor of Habana, in issuing the order dated May 20, 1899, and the action of Major-General Brooke in sustaining said order.

It seems plain, to the writer, that the complainants have overlooked the real instrument of their undoing. Their individual or personal right to exercise the authority pertaining to the office of high sheriff of Habana and to enjoy the emoluments of said office was placed in jeopardy by the war between Spain and the United States and abrogated when the city of Habana became subject to military occupation by the forces of the United States.

The general rule deducible from the laws of war is that the authority of the local, civil, and judicial administration is suspended, as of course, so soon as military occupation takes place, although in actual practice it is not usual for the invader to take entire administration into his own hands; but the omission is an act of grace on the part of the invader.

Lieber's Instructions for the Government of Armies of the United States in the Field, section 1, paragraph 6, lays down the rule as follows:

All civil and penal law shall continue to take its usual course in the enemies' places and territories under martial law (military government), unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government—legislative, executive, or administrative-whether of a general, provincial, or local character, cease under martial law (military government), or continue only with the sanction or, if deemed necessary, the participation of the occupier or invader.

I understand this instruction to mean that it requires an affirmative act of the invader to abrogate the civil or penal laws, but the authority of legislation, execution, and administration of all laws passes to the military occupant as a result of the occupation and without further affirmative act or declaration. Should he thereafter desire to confer the right to exercise any or all of said powers upon the persons previously exercising them, or other persons, an affirmative act is necessary. If this is the correct view, it follows that upon the military occupation of Habana by the forces of the United States being established, the authority theretofore possessed by these claimants by virtue of said office passed, ipso facto, to the military occupier and will remain there so long as the occupation continues, to be exercised or not, as the occupier shall determine.

I take this to be the rule even when it is conceded that the office does not become functus officio as a result of military occupation.

I see no reason why an exception should be made to this general rule in the instance under consideration. The fact that the term of office was perpetual does not give exemption, for the principle is the same as is involved where the term is for life, a series of years, during

good behavior, or at the royal pleasure. If the former incumbents of this office may rightfully demand restitution and indemnity, why may not any other Spanish officer demand similar treatment at the hands of the military government?

The next question is, Did the establishment of military occupation in Habana render the office known as high sheriff of Habana funetus officio?

If the high sheriff of Habana was an officer of the Crown of Spain, similar in character to that of the Spanish Governor-General of Cuba or the Spanish governor of the province of Habana, it would seem unnecessary to produce argument to show that, upon the military occupation of Habana being established, the office and appurtenant rights, privileges, and authority passed away with the sovereignty upon which the office depended and of which it was an instrument, agent, or vassal. If the officers of the previous sovereignty remain in office and continue to exercise the powers derived from the previous sovereignty, wherein has the previous sovereignty been displaced?

The invasion of Cuba by the military forces of the United States was undertaken and the military occupation of Habana established for the purpose of compelling the Spanish Government to comply with the demand of the United States

That the Government of Spain at once relinquish its authority and government in the island of Cuba. * * * (Joint resolution of Congress, April 20, 1898. See 30 U. S. Stats., p. 738.)

To what end and purpose were the military operations in Cuba if, at the end of a successful invasion, the instruments of the Government of Spain possess a vested right to continuance in place and power?

Even if not justified by the laws of ordinary war, the military government established by the United States in Cuba is fully justified in considering as ended all authority of all agencies of the Government of Spain in Cuba, for that is what the military forces of the United States were ordered to do by the sovereignty they serve. (See joint resolution of Congress, 30 U. S. Stats., 738, 739.)

The purpose of the invasion being to render all branches of the Government of Spain in Cuba functus officio, the success of said invasion must of necessity be held to accomplish said purpose.

Do the laws of nations and of war prohibit the abrogation of said office and its appurtenant rights and privileges?

The harsh rule still prevails that "the will of the conqueror is the law of the conquered." The application of this rule in modern usage has robbed it of its terrors. But it is the rigor of the application, not the rule, which has been mollified. The belligerent seeing fit to enforce the rule, has the right to do so. The United States in maintaining military occupation in Cuba and the resulting military government

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