libel filed by the captured, as for a marine trespass, the court will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning.

In The Nassau (4 Wall., 634), Mr. Justice Davis, speaking for the court, said (p. 640-641):

It is the practice with civilized nations, when a vessel is captured at sea as a prize of war, to bring her into some convenient port of the government of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home, in order that a judicial inquiry may be instituted to determine whether the capture was lawful, and if so, to settle all intervening claims of property. Until there is a sentence of condemnation or restitution the capture is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it.

In Lamar, executor, v. Browne et al. (92 U. S., 187), Mr. Chief Justice Waite, delivering the opinion of the court, said (p. 195):

Property captured at sea can never be converted by the captor until it has been brought to legal adjudication; and it is his duty, with all practicable dispatch, to bring his prize into some convenient port for that purpose.

The reason for the rule requiring judicial proceedings is that the sea is neutral, and therefore property thereon is not to be considered from its location to be the property of the enemy. The absence of this reason would lead me to the belief that, as to vessels which were avowedly the property of the nation at war or in the military service. of said nation, the rule would not apply, and the title would pass upon the capture being completed, were it not for the provisions of section 4613, Revised Statutes of the United States, as follows:

The provisions of this title (prize) shall apply to all captures made as a prize by authority of the United States, or adopted and ratified by the President of the United States.

* *

The prize laws of the United States were enacted pursuant to authority conferred by the Constitution upon Congress "To make rules concerning captures on land and water.”

They provide, among other things, the following:

1. If the United States desires to retain a captured vessel in the Government service, it may do so, whereupon the property is surveyed, appraised, and inventoried and the proceedings reported to the court having jurisdiction for the protection of the rights of the claimant and captors. The Department to whose use the prop. erty is devoted is required to deposit the value thereof with an assistant treasurer of the United States, in whose hands it is subject to the order of the court. (Sec. 4624.)

2. If the United States does not desire to retain the captured vessel in the Government service, but wishes to sell it, the property itself is subjected to the jurisdiction of the court, and upon being adjudged lawful prize of war is sold under a decree of the court. (Sec. 4615.)

3. If the captured vessel or any part of the captured property is not in condition to be sent in for adjudication a survey shall be had thereon, and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which such proceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority

of the commanding officer present, and the proceeds deposited with assistant treasurer of United States most accessible to such court and subject to its order in the cause. (Sec. 4615.)

4. If in any case of capture no proceedings for adjudication are commenced within a reasonable time, any parties claiming the captured property may, in any district court as a court of prize, move for a monition to show cause why such proceedings shall not be commenced, or institute an original suit in such court for restitution. (Sec. 4625.)

As a financial proposition it doubtless would be unprofitable for the United States to institute judicial proceedings to condemn the wrecks under consideration as prize of war. As a legal proposition it is questionable whether such proceedings could be maintained when instituted after the treaty of peace has been ratified and exchanged. (Brown v. United States, 8 Cranch, 110, 148, ante.)

Possibly as to such of said wrecks as were the property of the Government of Spain at the time they were wrecked and abandoned the title of the United States is complete, either by the laws of war or the treaty of peace, or both; and if not there is little likelihood that the Government of Spain would assert a claim for compensation were the United States to sell said wrecks. If the Government of the United States shall now sell and dispose of any of these wrecks which at the time the vessels sunk were owned by private parties, without having the wrecks adjudged prize of war, or derelicts, and sold by judicial proceedings, such private owner or some marine insurance company is quite likely to call upon the United States for compensation.

It appears to the writer that if such of these vessels as were owned by private parties are considered as wrecks or derelicts, it still follows that the title was not divested by the sinking and abandonment:

The title of the owner to property lying at the bottom of the sea is not divested, however long it may remain there, and no other person can acquire such title except by a condemnation and sale in admiralty. (Murphy v. Dunham, 38 Fed. Rep., 504; Baker. Hoag, 7 N. Y., 555; Ang. on Tidewaters, chap. 10; 1 Bl. Comm., 290–295). The rule is the same under the laws of Spain in force in Cuba. The Spanish Code of Commerce provides as follows:

ART. 842. The goods saved from the wreck shall be specially liable for the payment of the expenses of the respective salvage, and the amount thereof must be paid by the owners of the former before they are delivered to them, and with preference to any other obligation if the merchandise should be sold.

The Spanish Code of Civil Procedure provides as follows:

ART. 2122. * * * Fourth. The sale of goods saved from shipwreck shall be subject, according to circumstances, to the proceedings mentioned in the foregoing rules. The judge who has ordered their deposit shall order the sale of the same ex officio when proper.

The attention of the Secretary is directed to the advisability of dealing with these wrecks solely as obstructions to the navigable waters of Cuba, and therefore nuisances.

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The military government of the island would then be at liberty to abate such nuisances without regard to the questions of ownership and value. The abatement would be accomplished by an exercise of the police power of a state, pursuant to the right and obligation of the military government to keep free from obstruction the navigable waters subject to its jurisdiction.

The views expressed in the foregoing report were approved by the Secretary of War. The question of dealing with said wrecks as nuisances was referred to the Navy Department and the Treasury Department. Both said Departments informed the Secretary of War that they had no objection to offer to that course being pursued, and thereupon the Secretary of War instructed the military governor of Cuba as follows:

OCTOBER 31, 1901.

SIR: You having reported that said wrecks are serious obstructions to navigation, and their immediate removal desirable, the military government of Cuba is hereby authorized to consider and deal with said wrecks as nuisances and abate them by an exercise of the police power of a state, without reference to proprietary rights therein, inchoate or otherwise, or to their property value.

In taking action to abate said nuisances, the military government is authorized to employ persons or concerns who are willing to accept payment for services rendered in removing said obstructions in the values realized from the wrecks. If such course is adopted, a report and accounting thereof should be made to the Secretary of War for transmission to the Secretary of the Treasury; or you are at liberty to summarily destroy said obstructions and charge the expense to the revenues of the island.

I transmit herewith copy of report on this matter by the law officer, Division of Insular Affairs, wherein are set forth the objections to dealing with these wrecks either as prize of war or as derelicts, and the complications and liability which may arise if either the United States or the military government of Cuba shall dispose of these wrecks by an exercise of the rights of a proprietor.

Very respectfully,

Brig. Gen. LEONARD WOOD,

Military Governor of Cuba, Habana, Cuba.

ELIHU ROOT, Secretary of War.

IN RE REQUEST OF THE MILITARY GOVERNMENT OF CUBA THAT THE WAR DEPARTMENT REQUEST THE STATE DEPARTMENT TO APPLY TO THE GOVERNMENT OF SPAIN FOR RELEASE FROM PRISON OF EULOGIC IDULLA SAEZ.

[Submitted July 31, 1901. Case No. 3192, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge the receipt of the papers in the above-entitled matter and your request for a report thereon. In response, I have the honor to report as follows:

The case is thus: Saez was a soldier in the Spanish army. He came with his regiment to Cuba, where he deserted in 1894. Afterwards he

joined the insurrectionary forces in Cuba. He was taken prisoner by the Spanish forces on the 30th of April, 1896, while participating in an engagement between the Spanish and insurrectionary forces. He was placed on trial before a Spanish court-martial charged with violating the provisions of article 222 of the Spanish military code. On May 4, 1897, he was convicted and sentenced to "cadena perpetua' (perpetual chains). He was transported to Spain and incarcerated in a Spanish penitentiary, where he now is.

The Department of State and Government of the island of Cuba is of the opinion that this man is entitled to release from custody by reason of the provisions of article 6 of the treaty of peace (December 10, 1898), and calls upon the War Department of the United States to request the State Department of the United States to make application to the Government of Spain for his release.

The question involved is whether or not this case falls within the requirements of article 6 of the treaty of peace. In the opinion of the writer that question is to be determined by the State Department. If the treaty is being violated, it also devolves upon the State Department to determine what steps, if any, shall be taken in respect thereof. The only question the Secretary of War is called upon to determine is whether or not he will advance the papers to the State Department. Since the State Department is at liberty to decide for itself whether or not it will present the application to the Spanish Government, there appears to be no objection to transmitting the papers in the case to that Department.

It is incumbent upon the War Department to furnish the State Department all information in the possession of the War Department in regard to said matter which may be of use in determining the question involved.

Article 6 of the treaty of peace provides for the release of persons in prison for political offenses by the following provision:

Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offenses in connection with the insurrections in Cuba and the Philippines and the war with the United States.

This man was convicted of the offense penalized by article 222 of the Spanish military code, which is as follows:

Whosoever is included in any of the following numbers shall be punished with death, after degradation in a proper case:

1. He who, abandoning his flag, enters to form a part of the enemy's army. 2. He who induces a foreign power to declare war against Spain, or negotiates with said power for such a purpose.

3. He who raises in arms in order to dismember any part of the national territory. 4. Members of all classes of troops, who are not leaders or promoters, taking part in this crime, shall suffer a penalty extending from cadena temporal to cadena perpetua.

It will be seen that the offense penalized by the foregoing article consists of two acts-first, deserting the flag of Spain, and second,

joining the forces of the enemy. The gravamen of the offense appears to be joining the forces of the enemy. The penalty for desertion alone as prescribed by article 322 is as follows:

On deserting for the first time, without any qualifying circumstances, two or more years of service shall be imposed in time of peace and four years in time of war.

(The service referred to in the foregoing article means service in the army and not penal servitude.)

It appears from the papers herein that shortly after Saez deserted proceedings were instituted against him, in which he was declared in default because he did not enter appearance in the suit and could not be arrested. He was adjudged guilty and condemned to serve two additional years in the military service, pursuant to provisions of article 322. But when he was captured and found to be guilty of joining the forces of the enemy in addition to desertion, that sentence was annulled, and he was tried, convicted, and sentenced under article 222.

It will be seen that the question for the State Department to determine is, Does the act penalized by article 222 constitute a political offense in the sense in which that expression is used in article 6 of the treaty of Paris?

In the transcript of the proceedings transmitted to the War Department reference is made to articles 88, 177, 185, 222, 270, 273, 322 and 610 of the Spanish military code. I transmit herewith the English version of said articles.

TRANSLATION OF ARTICLES 88, 177, 185, 222, 270, 273, 322, 610 OF THE SPANISH CODE OF MILITARY JUSTICE.

ART. 88. The chamber of justice shall be composed of seven advisers (consejeros) when it is to pass upon sentences rendered by courts-martial and demand judicial responsibility.

When passing upon other subjects within their jurisdiction five advisers are sufficient.

In the first case at least two shall be graduate attorneys (togados), and in the second case the presence of one shall be sufficient, who shall belong to the army or navy, according to the division to which the subject pertains.

In order to take cognizance of matters proceeding from naval courts the chamber should be composed of the general advisers and the attorney of the navy.

In order to take cognizance of matters proceeding from military courts three advisers shall be generals of the army, and an attorney of the same.

In both cases the number shall be completed from among those who have served longest in the other classes which ordinarily compose the chamber.

ART. 177. The penalties which military courts may impose as chief penalties for crimes included in this law are of two classes-some military and others common. The military penalties according to their degree of gravity are as follows:

1. Death.

2. Reclusión militar perpetua.

3. Reclusión militar temporal.

4. Prisión militar mayor.