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abuses in the form of labor taxes and of unrestricted forced services demanded both by the State and by the State's concessionary companies. Slowly — too slowly for many active reformers — public sentiment became a force which the absolute sovereign of the Congo did not withstand. A new conference which might review the whole question of the condition of the natives in the conventional zone, both within and without the Congo Free State, was declined by certain of the continental powers when Great Britain proposed it in 1903. The only remaining sanction was that of ultranational public opinion. This, voiced in protests by more than one government, was reflected in Belgium. Leopold had as early as 1889 devised the Congo to Belgium. Later he agreed to permit Belgium to annex it if she so desired, after a term of years. After long nego tiations between Belgium and Leopold, the Congo Free State now passes out of existence and becomes in fact what it should have been long ago, a Belgian colony. As a colony it will be subject to government by discussion. In that country where party strife is active, where liberal ideas find such ready expression, responsible parliamentary government must surely be a guaranty that the pro visions of the Berlin Act will be observed in spirit as well as in letter.

The Congo Free State has been a political if not a financial failure. Why? The answer, it seems, must be plain. States to be worthy of the name are not artificial productions, even when conceived by the master minds of the great chancelleries. When the powers recog: nized the International Association of the Congo they agreed to consider something as a state which was in truth not a state. However benevolent the intentions of its sponsors might have been, the effects of creating such an institution to be regarded as sovereign and independent were not foreseen. It was the anomalous character in international law of the State which has made the Congo question so difficult of treatment. The Congo State, not being the result of ordinary conditions, could not be judged by ordinary standards. An unnamed diplomat was well within the truth when he describer! the Congo Free State, soon after it came into being, as “an anomaly and a monstrosity, from an international point of view; and from that of the future, it was an unknown danger."


PURCHASABLE OFFICES IN CEDED TERRITORY In the July number of the Journal is given the decision of the Court of Claims in Sanches v. The United States and of the Supreme Court in O'Reilly v. Brooke. . Both cases involve the validity of the orders of military governors in former Spanish territory abolishing offices for which a price had been paid and which the holder claimed were private property and thus under the protection of the law of nations and the treaty of peace with Spain. In the Sanches case the office abolished was that of “ numbered procurador of the courts of first instance of the capital of Porto Rico;" in the O'Reilly case the office was that of high sheriff of Havana. In each case the opinion was expressed that the office had ceased with the extinction of Spanish sovereignty, but in the Supreme Court case this was not necessary to the decision, as General Brooke's liability had already been denied on other grounds, while the opinion on this point was delivered without argument of counsel, without exposition, and without the citation of authority other than that of the Secretary of War in approving General Brooke's order. It is the opinion of the writer that the holders of those offices were entitled to indemnification. The facts of the O'Reilly controversy will be gone into in considerable detail.

In the year 1728 Don Sebastian Calvo de la Puerta bought at public auction, with the consent of the Spanish Crown, an heriditary and alienable office known as the “alguacil mayor" or high sheriff of Havana This was a double office --- partly national, partly municipal Its national duties were what gave the office its name and consisted principally in the service of writs. In his national character the high sheriff was an executive officer of the courts. But the patent of his office made him also a perpetual member of the city council of Havana. Connected with the perpetual councilorship apparently, and through it with the double office of high sheriff, was the right to manage and conduct the slaughter of cattle in the public slaughterhouse of Havana and to charge fees therefor. The duties

connected with this right do not seem to have been considered part of the duties of office but rather as incident to the right, which was considered one of the emoluments of the office. When considered as duties of the office, however, they have been classed as municipal and not national. For the service of writs the high sheriff was entitled to fees fixed by law.

By the law for the reorganization of the municipal councils of Cuba of July 27, 1859, it was provided that an investigation should be made as to the proper compensation for the assignable offices in the municipalities, with a view to the abolition of those offices on the payment of the compensation fixed. The office of the “alguacil mayor” of Havana, by reason of its large returns, was to be the subject of special investigation. No final action was taken under this law, however, and the high sheriff continued to be a member of the municipal council until in 1878 the governor-general of Cuba published a decree that the perpetual councilors should cease to perform the duties appertaining to them and should no longer be considered members of the municipal council, but that they should be deprived of no emolument until the proper indemnification provided for by the law of 1859 had been paid. The double office of the high sheriff was affected to the extent that he was a perpetual councilor. Other provision seems to have been made subsequently for the service of writs. At any rate, this latter function seems to have fallen to decay, so that at the time of the American occupation all that was left of the office seems to have been the right to its emoluments, which consisted of the slaughterhouse privilege. That the latter was valuable is shown by the fact that a one-half interest in it was sold on an execution sale in 1895 for $70,000. Through the extinction of the male line of the purchaser of 1728, the office of high sheriff had passed to Count O'Reilly, the husband of the daughter of the previous high sheriff, and at the time of the American occupation the owner by inheritance was the Countess O'Reilly and Buena Vista. In performing the services connected with the slaughterhouse privileges she then employed seventy workmen, fifty men, and more than twenty carts.

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curred January 1, 1899. The treaty of peace had been signed

10, 1898. Ratifications were exchanged April 11, 1899. Acting on the recommendation of the Havana finance commission, General Ludlow, as governor of Havana, issued an order on May 20, 1899, terminating the hereditary grant or privilege in connection with service of the city slaughterhouse

, of which the O'Reilly family, or lessees, are now the beneficiaries," directed the city of Havana to make provision for the services in connection with the slaughterhouse, and intimated that the beneficiaries of the old privilege might seek such relief as they were entitled to in the courts. This order was to go into effect June 1. Appeal was taken to General Brooke, military governor of the island of Cuba, who did not confirm the order appealed from, but, instead, issued the following:

It being considered prejudicial to the lawful interests and general welfare of the municipality of Havana, and as a measure demanded by public policy and in harmony with preceding orders of the military government, in view of the condition of affairs created in this island by the cessation of Spanish sovereignty, the old alienated office known as "alguacil mayor de la Habana,” together with all rights, duties, and privileges pertaining thereto, or derived therefrom, are hereby abolished, and the right of the claimants to ownership thereof of exercising said office or receiving any of the emoluments, attributes, prerogatives, or any kind of benefit or rights whatsoever that have heretofore been enjoyed therefrom by said claimants to ownership are hereby denied.

The municipal corporation of Havana, therefore, may adopt proper measures and provide the necessary means of performing the municipal services heretofore discharged by the claimants to ownership of said office as attributes, prerogatives, or duties attached to the same.

From this order an appeal was taken to Mr Root, Secretary of War, who referred the matter to the Hon. Charles E. Magoon, Law Officer of the Division of Insular Affairs of the War Department. The report of Mr. Magoon was unfavorable to the petitioner, and pursuant to that report Mr. Root, December 24, 1900, made the following determination:

I can not assent to the proposition that the right to perform any part of the duties or receive any part of the compensation attached to the office of sheriff of Havana, under Spanish sovereignty, constituted a perpetual franchise which could survive that sovereignty. The fact that the Spanish Crown permitted an office to be inherited or purchased does not make it any less an office the continuance of which is dependent upon the sovereignty which created it.

The services which the petitioner claims the right to render and exact compensation for are in substance an exercise of the police power of the State. The right to exercise that power under Spanish appointment or authority necessarily terminated when Spanish sovereignty in Cuba ended. It thereupon became the duty of the military governor to make a new provision under which this part of the power of the new sovereignty, which took the place of the sovereignty of Spain, should be exercised and the necessary service rendered to the public. The petitioner has been deprived of no property whatever. The office, right, or privilege which she had acquired by inheritance was in its nature terminable with the termination of the sovereignty on which it depended.

The question whether by reason of anything done before that time the right to compensation from the municipality of Havana has arisen is a question to be determined by the courts of Cuba.

The application for the revocation of the order heretofore made herein by the military governor of Cuba is denied.

Action was then brought in the district court for the southern district of New York against General Brooke on the ground that his order was contrary to the Constitution and laws of the United States and in violation of the provisions of the treaty of Paris and of the instructions of the President of the United States, that it was a confiscation of the plaintiff's property, and was wholly unlawful, tortious, and unauthorized on the part of the defendant, and that it was also in contravention of the Spanish law of 1859 and of the decree of 1878. Judgment was demanded for damages alleged to amount to $250,000. Nothing was said in the complaint as to the appeal to the Secretary of War. The defendant demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. Judge Holt, before whom the demurrer was argued, overruled it on the ground that General Brooke's order was not a governmental act; that under the Spanish law the Countess O'Reilly could not be deprived of her rights in this franchise until its value had been determined and paid to her, and that accordingly the facts as stated in the complaint amounted to a tortious interference with private property on the part of the defendant.

The case then came to trial, and in defense it was urged that the

1135 Fed. Rep., 384.

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