executive branch of the military government of Cuba if it sees fit to exercise the power, and that such determination of the question by the executive branch would be binding upon the courts of Cuba; but I understand the administrative policy adopted by the War Department for the military government of Cuba to be, that the executive branch of the military government of Cuba is to refrain, whenever possible, from judicially determining such questions and relegate them to the courts. Therefore the officials of the executive branch of the military government of Cuba ought not to ratify or approve any of the grants or concessions heretofore issued by Spanish authority in the island, for to do so is to bind the courts to sustain the ratification.

The executive branch of the military government will continue, of course, to exercise the police power and prevent the violation of the rights of others by those whose claims of authority are not supported by sufficient showing to make out a prima facie case, and will take such steps as are necessary to protect the public welfare in all matters subject to the control of the police power of the government.

In short, when the military government of Cuba is of opinion that a particular grant, if otherwise valid, is not in violation of the rights of the United States as existing at the time the grant was made by the Spanish authorities, the executive branch of the military government will take no action in regard thereto, except to regulate the manner of exercising the rights asserted under the concession, by the ordinary exercise of the police power, and thereby leave open the questions of law involved for the determination of the courts. When the military government of Cuba is of opinion that an alleged grant purporting to have been made by the authority of Spanish sovereignty is in fraud of the rights of the United States as they existed at the time the grant was attempted, the military government will prohibit the exercise of rights under said alleged grant.

In his letter of June 5, 1901, the military governor of Cuba, having reference to the Spanish concession for the canalization of Matadero Creek and in response to the letter of instruction from the Secretary of War, dated May 29, 1901, says:

The point at issue was whether or not the War Department was willing that I should confirm the approval of the former governor-general. * * * I understand from the general tenor of your letter that such approval is agreeable to the War Department. * * In accordance with your general instructions, and having considered the case upon its own merits, I will indorse upon it my acceptance of it as a valid concession.

*

The letter of the Secretary of War to which the military governor refers is as follows:

MAY 29, 1901.

SIR: A report by the law officer of the division of insular affairs, in the matter of the concession to canalize the Matadero River, is inclosed herewith, bearing my approval.

It is evident that some confusion has existed in the treatment of such subjects in Washington and Habana, arising from the widely different systems of law and judicial procedure which form the point of departure for opinions and decisions rendered in the two places. The same terms used in the different places sometimes carry widely different meanings. The principle to which the Department has endeavored to adhere, and which was definitely determined upon at the beginning of your administration of Cuba, is that such decisions as the Department makes upon questions of this character will be limited to decisions for the purpose of guiding administrative action, and that the Department will not undertake to perform the functions of a court to determine the rights of individuals. The decision made in the Matadero Canal case on the 5th of October, 1899, was of this description. It was not designed to determine the rights of the persons claiming the concession, but to determine the duties of the military administration of Cuba in its administrative treatment of that concession; and the fourth clause of that decision was supposed to adequately express that limitation. The secretary of public works apparently gave to the decision that the concessionnaires had a prima facie right a much more extended and unwarranted force when he declared that the prima facie right had the force of an undisputed right until declared to be null by the proper authority. The decision made by the War Department gave no force or effect whatever to the concession when presented to a court, relieved the concessionnaires from no burden of establishing their rights in court, and had no effect whatever except as governing the action of the administrative officers of the military government. It required that you should withdraw the prohibition which your predecessor had established by military order against the exercise of whatever rights the concessionnaires may have had, leaving the concessionnaires to prosecute their rights precisely as if that military order had never been given. That course should be followed now. The withdrawal of that order will not, however, prevent the military government from disputing in any court of competent jurisdiction the validity of the concession, either as complainant or as defendant, just as any individual whose rights may be affected may dispute it, and in any such proceeding the claimants of rights under the concession will be bound to establish their rights precisely as if no such decision had been made; nor does this decision, or the withdrawal of the prohibitory order under it, prevent the taking of the customary proceeding, in case the concession should be held to be valid, for its annulment upon the group that it is detrimental to the public interests.

There is one matter upon which the decision of the Department, however, is conclusive, and which is not deemed to be open for determination by any court, and that is upon the power of the Spanish Government to grant such a concession on the 28th of August, 1898. That is a political, not a judicial question, and the view taken by the Department is that the date itself is not conclusive. Each such case must be considered by itself on its own merits. Acts of Spain in Cuba between the signing of the protocol and the evacuation, done in good faith and in the ordinary exercise of governmental powers, are to be treated as the valid acts of a government de facto, while acts done for the purpose of withdrawing or witholding property or valuable rights from the Government about to succeed, and not done in good faith for the legitimate purposes of government, are to be treated as invalid.

Very respectfully,

Maj. Gen. LEONARD WOOD,

Military Governor of Cuba, Habana, Cuba.

ELIHU ROOT, Secretary of War.

It appears to the writer that the military governor has misinterpreted the instructions set forth in the foregoing letter. He was instructed to withdraw the military order of the military officer preceding him in command of the division of Cuba; further affirmative

action by him does not seem to have been contemplated. If he shall now "confirm the approval of the former governor-general" and "indorse upon it my acceptance of it as a valid concession" such action will preclude the courts of Cuba from determining whether the Spanish official who issued the concession was authorized to make the grant by Spanish law, or, if so authorized, whether or not the proceedings taken fulfilled the requirements of the Spanish law. I think the proper indorsement for the military governor of Cuba to make on the concession to canalize Matadero Creek, and on other concessions which the United States considers as not invalidated by want of good faith on the part of Spain, would be as follows:

The United States makes no objection to this alleged grant by Spain nor to the terms and conditions thereof (insert description), provided said alleged grant was made pursuant to lawful authority and procedure under the laws of Spain in force in the territory to which the concession appertains at the time the grant was made. The questions of authority and procedure under Spanish law are to be determined by the courts of Cuba when involved in cases properly pending therein.

When the United States does object to a concession as invalid for want of good faith, a proper indorsement would be as follows:

The United States objects to this alleged grant by Spain (insert description) and refuses to recognize the same as valid. Therefore the military government of Cuba prohibits the assertion or exercise of any rights or privileges thereunder.

The Secretary of War approved the views expressed in the foregoing report and instructed the military governor of Cuba as follows:

WAR DEPARTMENT, OFFICE OF THE SECRETARY,

DIVISION OF INSULAR AFFAIRS, Washington, D. C., June 21, 1901. SIR: I have the honor to acknowledge receipt of your communication of June 5, 1901, respecting the concession for canalization of Matadero Creek, Habana, and requesting further explanation of the administrative policy adopted by the War Department with reference to alleged concessions granted by the Spanish government of Cuba, after the protocol of August 12, 1898, was signed. In answer thereto allow me to say:

The United States, on August 12, 1898, by reason of successful military operations, had induced Spain to sue for peace and was in a position to require Spain to comply with its demands. But the United States had not effected a complete conquest of all Cuba, because all parts of the island were not in the possession of our military forces. Under the laws of war, as long as Spain continued in possession of territory in Cuba, so long Spanish sovereignty continued over that particular territory, and the proprietary title in and to public property therein situate belonging to the Crown under Spanish law would remain with the Crown of Spain. While this condition continued, the Government of Spain would be justified in exercising sovereign powers in said territory, and the Crown of Spain would be justified in exercising the ordinary privileges appurtenant to the proprietary title of public property under the laws of Spain, provided such action as was taken was in good faith, i. e., with due regard to the rights of its adversary.

This condition was terminated by the treaty of Paris. By that instrument sovereignty and title in Cuba (art. 1) and proprietary title to the public property in the island (art. 8) were relinquished by Spain, and provision made that "upon its evacuation by Spain" the island was to be "occupied by the United States," and that the United States should "so long as such occupation shall last assume and discharge the obligations that may under international law result from the fact of its occupation." * * * (Art. 1.)

The right of the United States to administer sovereign powers in Cuba, and its right to the proprietary title of public property theretofore possessed by the Crown of Spain, were completed by and date from the treaty of Paris, December 10, 1898. It is therefore inaccurate to say "all these grants involved property or valuable rights belonging to the future government of Cuba.”

When attempt is made to exercise rights under an alleged concession purporting to have been granted by officials of the Spanish government of Cuba, after the signing of the protocol of August 12, 1898, the military government of Cuba is required to consider the matter in two phases, the first being

Was said grant】justified by the laws of war? That is to say: (a) Was Spain in possession of the territory affected? (b) Was the sovereignty of Spain attached thereto? (c) Did Spain act in good faith toward its adversary?

The second phase is

Was said grant justified by the laws of Spain? That is to say: (a) Was the grant authorized by the laws of Spain? (b) Were the requirements of the Spanish law fulfilled in making said grant?

The first phase is to be passed upon and the questions involved determined by the authorities charged with maintaining the rights and promoting the purposes of the United States in Cuba, for the reason that said questions involve the relative and respective rights of the United States and Spain as affected by a war in which the United States was the victor. In matters of this character the official so charged is

the military governor.

The second phase is to be passed upon and the questions involved determined by the judicial branch of the military government of Cuba, for the reason that the determination of said questions requires the exercise of judicial functions ordinarily performed by courts, and the administrative policy in Cuba is to permit the courts to perform those functions of government termed judicial. In determining the questions properly to be considered by him, the military governor should exercise care not to preclude the possibility of the courts examining and determining the questions involved in the second phase.

Where the military governor determines in favor of a concession the determination should be declared as follows:

'The United States makes no objection to this alleged grant by Spain, nor to the terms and conditions thereof (insert description); provided said alleged grant was made pursuant to lawful authority and procedure under the laws of Spain in force in the territory to which the concession appertains at the time the grant was made. The questions of authority and procedure under Spanish law are to be determined by the courts of Cuba when involved in cases properly pending therein.”

When the determination is against a concession it should be declared as follows: "The United States objects to this alleged grant by Spain (insert description), and refuses to recognize the same as valid. Therefore the military government of Cuba prohibits the assertion or exercise of any rights or privileges thereunder.'

CONSTRUCTION TO BE GIVEN THE CONGRESSIONAL ENACTMENT APPROVED MARCH 2, 1901, RELATING TO THE PUBLIC LANDS AND TIMBER IN THE PHILIPPINES.

[Submitted March 15, 1901. Printed as War Department publication by order of the Secretary of War. Inserted in Annual Report of Secretary of War, 1901, as Appendix F. See also pp. 70-71 of said report.] [Case No. 1991, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge the receipt of your request for a report on the proper construction of the provision in the Army appropriation bill, approved March 2, 1901 (Public No. 118)—

That no sale or lease or other disposition of the public lands or the timber thereon or the mining rights therein shall be made.

The particular subject calling for consideration is the effect of this Congressional enactment upon the right of the United States governmental authorities in the Philippines to provide for the use of forest products in the public forests of the Philippine Islands by the residents of the archipelago and by the Government.

The question is presented to the War Department by the following cablegram from the Philippine Commission:

ROOT,

Secretary of War, Washington:

MANILA, March 7, 1901-6.55 a. m.

High price lumber one of people's greatest burdens; present situation very little timber on private land; people almost entirely are obliged to depend upon purchase timber from Government land to repair damage owing to the war. If recent legislation abrogates General Orders, Headquarters Department of Military Governor, series of last year, No. 92, fixing reasonable rates and proper limitations under which any resident may cut public timber, it will produce greatest hardship. If so, ask authority to put imported timber on free list. Is cutting public timber for public works forbidden? Request opinion.

TAFT.

To properly understand said provision it is necessary to consider the entire paragraph of which it is a portion and the general purpose of the legislation. Said paragraph is as follows:

All military, civil, and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and at Washington on the seventh day of November, nineteen hundred, shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property, and religion: Prorided, That all franchises granted under the authority hereof shall contain a reservation of the right to alter, amend, or repeal the same.

Until a permanent government shall have been established in said archipelago full reports shall be made to Congress on or before the first day of each regular session of all legislative acts and proceedings of the temporary government insti