United States the duty of protecting and preserving the rights and property of the United States wherever located. This duty is especially imperative in territory subject to military government, for therein there is no division of responsibility, since all branches of government meet in the President as Commander in Chief of the occupying forces. Such provisions of said General Order, No. 92, as are intended to protect and preserve the interests of the United States in said forests are in harmony with said enactment and not affected thereby.

The Secretary of War approved the views expressed in the foregoing report, and the following reply to Judge Taft's dispatch of March 7 was accordingly sent:

MARCH 30, 1901.

With reference to your telegram of the 7th, it is considered provisions act Congress, March 2, do not interfere with established system forestry regulations provided for by Spanish law, as modified by military governor-general, orders 92, June 27, 1900. Full discussion of subject forwarded by mail. Advise General MacArthur. ROOT.

TAFT, Manila.

In Annual Report of the Secretary of War for the year 1901, Secretary Root says (pp. 70, 71):

The full discussion of the subject referred to in this dispatch was contained in a report to the Secretary of War by the law officer of the Division of Insular Affairs, dated March 15, 1901, and a copy of this report is annexed hereto, marked Appendix F.

IN RE CLAIM OF MESSRS. SOBRINOS DE HERRERA (NEPHEWS OF HERRERA) FOR PAYMENT OF DAMAGES OCCASIONED BY THE SEIZURE OF THE STEAMER SAN JUAN IN THE HARBOR OF SANTIAGO DE CUBA ON OR ABOUT JULY 17, 1898, BY THE MILITARY FORCES OF THE UNITED STATES.

[Submitted November 25, 1901. Case No. 1216, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge and comply with your request for a report on the claim of Messrs. Sobrinos de Herrera for payment of damages occasioned by the seizure of the steamer San Juan by the military forces of the United States.

The facts out of which this claim arises, as set forth by the claimants, are as follows (see 1216, Div. Ins. Affrs.):

The steamer San Juan, a Spanish merchant vessel, engaged in the constwise trade of Cuba, was detained in the harbor at Santiago by the blockade at that port. On July 17, 1898, this vessel was boarded by a detachment of United States soldiers under the command of an officer of the United States Army, who proceeded to establish and maintain a guard over said vessel and prevented all communication with the shore. On July 20, 1898, the captain and crew were required to take said vessel to Guantánamo under guard of two United States war ves

sels, and on July 25 to return to Santiago. The subsequent proceedings are set forth by the claimants as follows (see 1216, Div. Ins. Affrs.):

That on the 26th day of said month, in obedience to orders, the said captain with an interpreter appeared before the general of the American Army in command at Santiago de Cuba and was by him informed that an American officer would immediately go aboard and assume command of the vessel; that against the protest of him, the said captain, such control and command was immediately taken, and he, together with the crew, was compelled to leave the said vessel, the San Juan; that no receipt for the delivery or surrender of the vessel was given.

This vessel so seized remained in the possession of the United States military authorities until May 18, 1899, on which day it was returned to the claimants.

It is a well-established and well-known fact that the War Department has jurisdiction to adjust and pay only such claims against the United States Government as arise on contract with the War Department which has been performed. (Brannen v. United States, 20 C. Cls., 219, 224: Dennis . United States, 20 C. Cls., 119, 121; McClure v. United States, 19 C. Cls., 179, 180; Satterlee, admrx. et al., ". United States, 30 C. Cls., 51, 54; United States. Corliss Steam Engine Co., 91 U. S., 321; United States v. Bestwick, 94 U. S., 53.)

In order to bring this claim within the jurisdiction of the War Department, it would be necessary to have it appear that, at the time the vessel was seized, the military authorities waived the right of the United States to impress the vessel and intended to pay for the property or for its use; that thereafter the property was devoted to the use of the military service of the United States, and that the owner. assented to such taking and use of the property.

A reading of the statement of the case, made herein by the claimants, makes it impossible to consider the claim as based on a mutual agreement or meeting of minds. The claimants are insistent, if not defiant, in asserting that instead of consenting they at all times protested against the vessel being taken and used by the United States, and instead of voluntarily turning over said vessel to the United States under contract or agreement, they were "compelled to leave," etc.

As a further evidence of their determination not to enter into or sustain contract relations with the United States Government with respect to said seizure and use of vessel, the claimants set forth in their application to the War Department (1216 Div. Ins. Affrs.)—

That on the 28th day of July, 1898, in the city of Santiago de Cuba, he, the said captain of the steamship San Juan, appeared before Don Pedro Secundino Silva y Fernandez, a notary, and made a deposition, duly executed and certified, setting forth the facts above stated and protesting against the seizure and detention of the vessel.

It affirmatively appearing that this claim does not arise on a contract with the military branch of the public service which has been performed, I am obliged to report that the application herein does not present an account which the War Department has jurisdiction to settle and pay.

In order that the Secretary of War may be fully advised as to this controversy, attention is directed to the fact that the action taken by the military authorities and the conditions existing at the time and place of the seizure plainly indicate that this vessel was seized either to prevent it from attempting to engage in traffic with the ports of Cuba at that time (July 17, 1898) blockaded by the United States, or to devote it to the uses of the military service of the United States without compensation, i. e., to impress it. Under the laws and usages of war either consideration justifies the seizure as a legitimate exercise of belligerent right. Therefore the only question involved is that of the authority of the United States to exercise belligerent rights at Santiago de Cuba on July 17, 1898. If history records an occasion when a nation might properly exercise such rights, it appears to the writer that Santiago de Cuba, July 17, 1898, affords a time and place when and where the United States might exercise them. Rightly or wrongly, the United States did exercise belligerent rights then and there. Persons considering themselves improperly dealt with by such exercise must apply to Congress for relief; it can not be provided by the War Department.

It is believed to have been the uniform practice of the War Department to abide by the well-established legal principle which precludes the executive branch of the Government from allowing claims for damages to property destroyed or injured in the common defense or due prosecution of war against public enemies.

(Mr. Belknap, Secretary of War, to Mr. Lawrence, February 24, 1874.)

If the person feeling aggrieved is a citizen of the United States, he may apply directly to Congress.

If he is an alien, he must present his claim to the State Department through diplomatic channels.

If he is a subject of Spain, consideration must be given to the provisions of the treaty of 1898, as follows (Art. VII):

The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war.

The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article.

III.

The claimants, in their written application for relief (1216, Div. Ins. Affrs.), with reference to their demand for the return of the vessel to them, say:

That they, your said petitioners, based their requests on the principles and rules of equity and justice observed by all civilized nations, and more particularly on the above-mentioned proclamation of the President of the United States, two paragraphs of which are above set forth in full.

From this statement it would appear that the claimants contend that the seizure and detention were in violation of the laws and usages of war, as established by the practices of civilized nations. If such be the case, indemnity for such violation by the military authorities of the United States must be sought for in Congress or by civil suit in court against the individual guilty of the unwarranted action constituting the violation.

The proclamation of the President to which claimants refer was made on July 18, 1898, and can not be considered as having a retroactive effect.

The first of the two passages of said proclamation to which the claimants refer is as follows:

Private property, whether it belongs to private parties or to corporations, must be respected, and it may be confiscated only as indicated below. Means of communication, such as telegraph and cable lines, railroads and steamers, may be seized even though they belong to private persons or to corporations, but in case they are not destroyed for urgent motives they must not be detained.

This passage plainly contemplates that the military authorities in Santiago de Cuba might continue thereunder to exercise the right to confiscate, seize for the Army (impress), or destroy private property, the only limitation being that where property was seized for the temporary use of the Army it should not be detained after the purposes of the seizure were accomplished.

The second of the two passages in said proclamation to which claimants refer is set forth in the application, as follows:

The private property seized for the use of the Army shall be paid for in cash, if possible, after a just valuation, and when the payment in cash is not possible, it shall be made in bonds.

The words in italics do not appear in the order of the President. In that document the language used is, "receipts are to be given." (See G. O. No. 101, A. G. O., 1898.)

It will be noticed that this direction of the President is confined to one class of property, to wit, that seized "for the use of the Army," and clearly relates to subsistence, maintenance, and like matters. It can not be extended to require the military commanders then conducting active military operations in Cuba to pay for property not taken for the use of the Army, but seized, injured, or destroyed to promote the military operations or purposes of the war or to prevent the property being used by the enemy or to his advantage.

When it is considered that the property seized'was not paid for in cash, nor its just valuation ascertained, nor a receipt given, it must be held (in the absence of any evidence to the contrary) that the military authorities making the seizure considered the seizure as a measure of public safety required by the military situation, and not a means of acquiring property for the use of the Army.

When the proclamation is read as a whole, it is apparent that the

President preserved the distinction pointed out by the Court of Claims as follows: (Heflebower . United States, 21 Ct. Cls., 229, 237.)

v.

There is a distinction to be drawn between property used for Government purposes and property destroyed for the public safety. If the conditions admitted of it being acquired by contract and used for the benefit of the Government, it may be regarded as acquired under an implied contract; but if the taking, using, or occupying was in the nature of destruction for the general welfare, or incident to the ravages of war, and whether brought about by casualty or by authority, and whether on hostile or national territory, the loss (in the absence of positive legislation) must be borne by him on whom it falls.

Even if the Secretary of War were of opinion that the seizure and detention of this vessel were clearly in violation of the laws and usages of war as theretofore accepted, or in violation of said laws and usages as interpreted, declared, amended, or otherwise made binding upon the United States Army by order of the President, he would still be without jurisdiction to determine and pay the amount of financial loss or damage occasioned by such violation. The Secretary has authority to prohibit a continuance or repetition of an alleged violation, but compensation for a violation imposed must be afforded by Congress. (5 Dec. Comp. of Treas., 693, 694; 7 Dec. Comp. of Treas., 517, 523.)

I therefore recommend that the claimants be advised that the War Department is without jurisdiction to consider and determine the matter presented by their application.

REPORT ON THE DUTY COLLECTIBLE ON THE WRECK OF A STEAMER BROUGHT INTO PORTO RICO AND THERE SOLD WHILE THAT ISLAND WAS UNDER MILITARY GOVERNMENT. [Submitted September 12, 1899. Case No. C-324, Division of Insular Affairs, War Department.] SYNOPSIS.

Duty should not be collected on the wreck of a vessel brought into a port of Porto

Rico if the wreck is to be restored and continued as a vessel. Duty should be collected if the wreck is broken up and treated as material for consumption in Porto Rico.

SIR: I have the honor to acknowledge the receipt of your request for a report on the question as to whether the wreck of a vessel brought into Porto Rico and there sold is dutiable, and if so, at what In compliance with said request I have the honor to submit the

rate.

following:

The question is presented to the Department by an inquiry from the collector of the port of San Juan, as follows:

What duty collectible on wreck British brigantine caused by recent hurricane, sold auction by British vice-consul?

In the Conqueror (166 U. S., 110) the court held that a foreign-built vessel, purchased by a citizen of the United States and brought into the waters thereof, is not taxable under the tariff laws of the United States, for the reason that there is no mention of vessels eo nomine in