If said litigation relates to the requirements of the Spanish law of concessions, its pendency is inconsequential, as the change of sovereignty revoked all laws authorizing the alienation of the public domain. No proceedings affecting the rights of the new sovereign over public property can be taken except in pursuance of his authority on the subject. (Moore r. Steinbach, 127 U. S., 70, 81; United States. Vallejo, 1 Black, 541; Ely's Admr. ". United States, 171 U. S., 220, 230.)

If the litigation relates to the ownership of the land adjacent to or constituting the banks of said river at said point, and the rights appurtenant to said ownership, the granting of the revocable license asked for will not affect the legal rights of the parties, and by appropriate provisions in the license the rights of all may be protected.

It is probably true that securing the desired license will afford Valdez a substantial advantage in the final determination of the right to use this water power. In the United States priority of possession, or the first use of water for mining, agricultural, manufacturing, or other purposes, creates rights of substantial character recognized by the courts and Congress. (Broder ". Water Co., 101 U. S., 276; Sparrow v. Strong, 3 Wall., 97; Basey ". Gallagher, 20 Wall., 670: Atchison v. Peterson, 20 Wall.. 507. See also sec. 2339, U. S. Rev. Stats., and the act of February 27, 1865, 13 Stat. L., 441.)

The doctrine so recognized arises from the established policy of this nation to encourage and promote the development of the natural resources and advantages of this country, and is equally applicable to conditions in Porto Rico.

Conceding that an advantage will be obtained by securing the rights of prior occupancy, no reason appears to exist why such advantage should be denied to this applicant. He shows to this Department that he has been a pioneer in developing Porto Rico, and desires to immediately utilize this water power to extend and promote the electric railway and electric-lighting plant owned and operated by him for several years. He is shown to be a business man of means and standing, who desires to invest his capital in the development of the community in which he has for years resided.

A revocable license was issued, pursuant to the foregoing recommendation, but was subsequently revoked, and the matter was thereafter disposed of by the civil government of Porto Rico created by Congressional enactment.

MEMORANDUM RESPECTING THE EXERCISE OF THE POWER TO PARDON UNDER THE MILITARY GOVERNMENT MAINTAINED IN NEW MEXICO.

ALSO

THE ORDERS OF THE MILITARY GOVERNMENT OF CUBA RELATING TO THE EXERCISE OF THE POWER TO PARDON UNDER THAT GOVERNMENT.

[Submitted July 25, 1901.]

In

The conquest of New Mexico by the military forces of the United States was accomplished by the campaign of 1846. In compliance with instructions given by the President, the officer in command, General Kearny, organized a civil government for the occupied territory and filled the executive and judicial offices by appointment. December, 1846, the native inhabitants organized a conspiracy to overthrow the United States authority in New Mexico. On the night of January 15, 1847, the insurgents began hostilities and succeeded in killing the governor and a number of others, officials and citizens of the United States. The insurrection became general and the declared purpose was to kill all the Americans and those Mexicans who had accepted office under the American Government. The insurrection was suppressed by the military forces of the United States and a number of the insurgents captured, and by the latter part of 1847 comparative safety was secured and maintained by stationing troops at various points. Of the insurgent prisoners, some were tried by court-martial, sentenced to death, and executed. The others were turned over to the civil authorities of the military government for trial in the civil courts. A grand jury indicted four of them for the offense of treason against the United States. One was tried by a jury and convicted. The prisoner challenged the jurisdiction of the civil court and assailed the indictment on the ground that he was not a citizen of the United States nor bound to yield allegiance to that Government. Strong pressure was brought to bear in his behalf, and the district attorney, Mr. Blair, referred the matter to Washington for instruction. He addressed his communication to Hon. John Y. Mason, then AttorneyGeneral of the United States. Said letter was as follows:

SANTA FE, April 1, 1847.

SIR: You will doubtless have received, before this reaches you, the particulars of the late insurrection in the northern district of this Territory, through the public prints.

Of the prisoners taken in the suppression of that rebellion one of the leaders was executed under sentence of a court-martial. The remainder were turned over for trial to the civil authorities on the charge of treason against the United States.

At a term of the United States district court for this Territory, held at this capital in March last, four conspicuous persons in the late rebellion were indicted for treason by the grand jury, three put upon their trial, one of whom was found guilty and

sentenced by the court, one discharged under a nolle prosequi, and two obtained continuance to the adjourned term of the court in May next. Some twenty-five prisoners were discharged, the grand jury not finding sufficient evidence to indict them for treason.

About fifty prisoners are confined at Taos, in the northern district, awaiting trial at the term of the court commencing on the 5th instant, at which time both the circuit court for that county and the United States district court will be in session. A number of the prisoners can be identified as active participants in the massacre of the late Governor Bent and others. These it is the intention to prosecute before the circuit court, but many others, who were active in the planning and exciting the late insurrection, I feel it my duty to prosecute for treason against the United States. I have taken the liberty to lay these particulars before you in order that I may understandingly ask your counsel and advice, which I have had a great desire to obtain before entering upon these prosecutions, but the want of opportunity to communicate with you did not permit it.

You are doubtless fully aware of the manner and form in which Brigadier-General Kearny declared New Mexico a Territory of the United States and its inhabitants citizens subject to her laws and liable to penalty for their infraction in like manner as citizens of any other Territory of the United States. By the authority in him vested he established a civil government, a superior court, with jurisdiction as a United States district court. In this last-named court I, by appointment, act as United States district attorney, and have felt it my duty to prosecute all acts of treason committed by the inhabitants of this Territory, holding them responsible for all their acts as citizens of the United States.

In nearly all the cases tried the counsel for the defense have entered pleas to the jurisdiction of the court, which the court overruled, and in the case of Trujillo, who was convicted, the defense plead the jurisdiction of the court before the jury, declaring it to be unconstitutional to try any native inhabitant of New Mexico for the crime of treason against the Government of the United States until by actual treaty with Mexico he became a citizen. The court ruled out any consideration of this point by the jury, leaving it only the evidence and the facts upon which to make its verdict. Considering how it was constituted, the court was bound by its oath to view all the inhabitants of New Mexico as citizens of the United States and to execute the laws in regard to them as such, leaving the responsibility of the question of its constitutionality to fall back upon the power which constituted it.

I am anxious to receive your counsel and advice at the earliest possible moment in regard to all the matters above referred to.

Mails for this place will no doubt leave Fort Leavenworth regularly hereafter, and I trust you will oblige me by replying to this by the first opportunity.

Very respectfully, your obedient servant,

Hon. JOHN Y. MASON,

Attorney-General of the United States.

FRANK P. BLAIR.

The Attorney-General referred the matter to the War Department. Hon. W. L. Marcy was then Secretary of War, and he addressed his communications relating to the matter to Colonel Sterling Price, in command of the United States forces in New Mexico. From these communications the following passages are quoted:

SIR:

*

WAR DEPARTMENT, June 11, 1847.

*

I am not aware that the President has yet received the petition for the pardon of Antonio Maria Trujillo, but I have conversed with him and am now enabled to present his views on that subject.

The temporary civil government in New Mexico results from the conquest of the country. It does not derive its existence directly from the laws of Congress or the Constitution of the United States, and the President can not, in any other character than that of Commander in Chief, exercise any control over it. It was first established in New Mexico by the officer at the head of the military force sent to conquer that country, under general instructions contained in the communication from this Department of the 3d of June, 1846. Beyond such general instructions the President has declined to interfere with the management of the civil affairs of this Territory. The powers and authority possessed by General Kearny when in New Mexico were devolved on you as the senior military officer on his departure from that country. They are ample in relation to all matters presented to the consideration of the President in the communication of the acting governor, Vigil, dated 23d March last, and to you, as the senior military officer, or to whosoever is such officer, ḥe will leave such matters without positive or special direction. Your better knowledge of all the facts and circumstances will doubtless enable you to take a wise and prudent course in regard to them.

The insurrection in that department called for energy of action and severe treatment of the guilty. It was but justice that the offenders should be punished; the safety of our troops and the security of our possessions required it. Beyond what was necessary to these ends, it is presumed you have not gone; and the President sincerely hopes that the life of Antonio Maria Trujillo may be spared, without disregarding them. With this suggestion he leaves the case of Trujillo to your disposal, as he does all others yet under consideration.

W. L. MARCY,

*

Secretary of War.

Or Officer Commanding United States Forces at Santa Fe, N. Mex.

*

*

WAR DEPARTMENT, Washington, June 26, 1847.

*

The foundation of the civil government in New Mexico is not derived directly from the laws and Constitution of the United States, but rests upon the rights acquired by conquest. I call your particular attention to the fourth paragraph of my letter of the 11th of June, as containing the principles on which the temporary government at New Mexico does or should rest. The territory conquered by our arms does not become, by the mere act of conquest, a permanent part of the United States; and the inhabitants of such territory are not, to the full extent of the term, citizens of the United States. It is beyond dispute that, on the establishment of a temporary civil government in a conquered country, the inhabitants owe obedience to it, and are bound by the laws which may be adopted. They may be tried and punished for offenses. Those in New Mexico, who, in the late insurrection, were guilty of murder, or instigated others to that crime, were liable to be punished for these acts, either by the civil or military authority; but it is not the proper use of legal terms to say that their offense was treason committed against the United States; for to the Government of the United States, as the Government under our Constitution, it would not be correct to say that they owed allegiance. It appears by the letter of Mr. Blair, to which I have referred, that those engaged in the insurrection have been proceeded against as traitors against the United States. In this respect I think there was error, so far as relates to the designation of the offense. Their offense was against the temporary civil government of New Mexico and the laws provided for it, which that government had the right and, indeed, was bound to see executed.

On two former occasions I have addressed you in regard to Trujillo, who has been convicted of participating in the insurrection, and the execution of his sentence suspended, and made known the decided wishes of the President that his punishment should be remitted.

arms.

Firmness may, under some circumstances, be required as an element of security to the citizens of the United States and other persons in countries conquered by our When such is the case it should be unshrinkingly exercised; but when a merciful course can be safely indulged it is strongly commended as promising in the end the best results. Such a course is prompted by the better feelings of our nature, and, on the ordinary principles of human action, can not fail to promote quiet, security, and conciliation. I would therefore suggest that this course be adopted in all the other cases not finally disposed of, so far as considerations of safety will allow.

For the reasons stated in the foregoing correspondence the President declined to exercise the power to pardon vested in him as chief civil magistrate of the United States, but as Commander in Chief of the Army authorized the military governor to use his discretion in the matter, and the prisoner was pardoned by the governor.

The events resulting from this insurrection did not escape the attention of Congress. That body, on July 10, 1848, passed a resolution calling upon the President for information in regard to the existence of civil governments in New Mexico and California; their form and character; by whom instituted and by what authority, and how they were maintained and supported; also whether any persons had been tried and condemned for "treason against the United States" in New Mexico.

President Polk replied to said resolution by message (dated July 17), received July 24, 1848, in which he discusses the character of military government, taking the position that such a government may exercise the "fullest rights of sovereignty." With said message he transmitted the correspondence above referred to and also a letter received by him from the Secretary of War. In this message President Polk said: The temporary governments authorized were instituted by virtue of the rights of The power to declare war against a foreign country, and to prosecute it according to the general laws of war as sanctioned by civilized nations, it will not be questioned, exists under our Constitution. When Congress has declared that war exists with a foreign nation, "the general laws of war apply to our situation,” and it becomes the duty of the President, as the Constitutional “Commander in Chief of the Army and Navy of the United States," to prosecute it.

war.

In prosecuting a foreign war thus duly declared by Congress we have the right, by conquest and military occupation," to acquire possession of the territories of the enemy and, during the war, to "exercise the fullest rights of sovereignty over it.” The sovereignty of the enemy is in such case "suspended," and his laws can longer be rightfully enforced" over the “conquered territory” or be obligatory upon.

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