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abolition of the plaintiff's right or franchise to slaughter cattle in Havana was justified as an act under the police power in the interests of the public health, and that the United States Government having ratified the action of General Brooke in abolishing the plaintiff's franchise, the plaintiff had no longer any claim against Genera! Brooke. The first defense, that the order was an exercise of the
power, Judge Holt refused to allow, but he upheld the second defense, that by the action of the Secretary of War and the ratification provision of the “Platt Amendment ” General Brooke's order had been ratified by the Government of the United States, or of Cuba, or of both, and that this relieved General Brooke from liability, and dismissed the complaint. He expressed the opinion, however, that the plaintiff had a just claim for damages against the United States, under its obligations assumed in its treaty with Spain, or against Cuba, under its obligations assumed in its treaty with the United States, or against both Governments.2
The case was then taken up on writ of error to the Supreme Court of the United States, where the opinion was delivered by Mr. Justice Holmes. 3 The court said that the plaintiff necessarily assumed that her rights followed the ancient conception of an office and were an incorporeal hereditament, susceptible of disseisin, and asked if such were the case why the disseisin was not complete before General Brooke had anything to do with the matter, or why he should be liable for the continued exclusion of the plaintiff by the United States and Cuba, but that it was hard to admit that the notion of disseisin could be applied to such disembodied rights. If not, that all General Brooke could be held for, if for anything, would be damages for the disturbance to the plaintiff while he was in power, which were not the object of the suit. But, the court continued, if the plaintiff were disseised, it would be a question whether such disseisin was a tort within the meaning of the sixteenth clause of Revised Statutes, seetion 563, giving the district courts jurisdiction of all suits brought by an alien for a tort 'only' in violation of the law of nations, or of a treaty of the United States," under which the jurisdiction of the
2 142 Fed. Rep., 858. 3 209 U. S. 45.
district court had been invoked. Putting aside these questions, the court then proceeded to dispose of the case on its merits, basing its decision on what might be gathered from the pleadings, coupled with matters of general knowledge. Without considering then whether ratification was needed, they held in the first place that “where, as here, the jurisdiction of the case depends upon the establishment of a “tort only in violation of the law of nations, or of a treaty of the United States,' it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress, and the treaty-making power all have adopted the act." In the second place, they agreed “with the opinion of the Secretary of War that the plaintiff had no property that survived the extinction of the sovereignty of Spain. The emoluments to which she claims a right were merely the incident of an office, and were left in her hands only until the proceedings for condemnation of the office should be completed and she should be paid. The right to the office was the foundation of the right to the emoluments. Whether the office was or was not extinguished in the sense that it could no longer be exercised, the right remained so far that it was to be paid for, and if it had been paid for the right to the emoluments would have ceased. If the rights to the office or to compensation for the loss of it was extinguished, all the plaintiff's rights were at an end. No ground is disclosed in the bill for treating the right to slaughter cattle as having become a hereditament inde pendent of its source. But of course the right to the office or to be paid for it did not exist as against the United States Government, and unless it did the plaintiff's case is at an end." The judgment of the district court was accordingly affirmed.
It will be noticed that the Supreme Court, in following the Secretary of War, held that the right to perform any part of the duties or receive any part of the compensation attached to the office of high sheriff of Havana ceased with the extinction of Spanish sovereignty, but that they did not specify when Spanish sovereignty became extinct. Mr. Magoon, in his report, went further and held that Spanish sovereignty passed away with the American occupation. It will be necessary to examine his position first, as the determination of the Secretary of War was based on his report without citing authority, and the Supreme Court followed the Secretary of War, likewise without citing authority. Mr. Magoon's first contention was that the authority of complainant to administer the office of high sheriff ceased upon the establishment of the military occupation of Havana, Hc based this on article 6 of Lieber's Instructions for the Government of Armies of the United States in the Field, which is as follows:
All civil and penal law shall continue to take its usual course in the enemies' places and territories under martial law (military government), unless interrupted or stopped by order of the occupying military power, but all the functions of the hostile government — legislative, executive, or administrative — whether of a general, provincial, or local character, cease under martial law (military government), or continue only with the sanction or, if deemed necessary, the participation of the occupier or inrader.
Mr. Magoon then goes on to say:
I understand this instruction to mean that it requires an affirmative act of the invader to abrogate the civil or penal laws, but the authority of legislation, execution, and administration of all laws passes to the military occupant as a result of the occupation and without further affirmative act or declaration. Should he thereafter desire to confer the right to exercise any or all of said powers upon the persons previously exercising them, or other persons, an affirmative act is necessary.
From this he concludes that the authority of the claimant passed to the occupier by the fact of occupation, even though it were conceded that the office itself did not become functus officio thereby.
It is submitted that this interpretation of the instruction is erroneous. That Dr. Lieber did not intend it is shown by articles 26 and 39 of the Instructions, which are as follows:
26. Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel everyone who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives.
39. The salaries of civil officers of the hostile government who remain in the invaded territory, and continue the work of their office, and can continue it according to the circumstances arising out of the war — such as judges, administrative or police officers, officers of cities or communal governments
* The italics are Mr. Magoon's.
are paid from the public revenues of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped.
In article 26 Dr. Lieber used expel ” in the sense of “ remove from office." That this was understood by the framers of the original project for the Brussels Declaration, which was largely based on the Instructions, and which, as modified by the Brussels Conference, was in turn the basis of the Hague Regulations, is shown by paragraph 4 of that project, which is as follows:
The military authority may require the local officials to undertake on oath, or on their word, to fulfill the duties required of them during the hostile occupation; it may remove those who refuse to satisfy this requirement, and prosecute judicially those who shall not fulfill the duties undertaken by them.
If the authority of these officials ceases by the fact of occupation itself there would be no meaning to the rule that they can be removed if they refuse to take an oath of fidelity to the occupier.
So article 39, in providing that those officials who continue the work of their office (functions) shall continue to be paid until the military government wholly or partially discontinues it, negatives the idea that their functions are discontinued by the occupation itself.
It seems clear, then, that the interpretation put on the sixth article is erroneous. To have warranted the interpretation placed on it, it would have had to read that functions should continue only with the express authorization of the occupier, instead of “only with the sanction.” The difficulty arose from Dr. Lieber's dealing with two distinct situations in the second half of his article. If it had stopped
cease under martial law” the contrast between the two sections of the article would have been appropriate and the article would have stated the well-settled proposition that the laws specified continue in force after occupation, unless interrupted or stopped, but that the functions of the hostile government cease for the period of the occupation through the fact of occupation itself.
But it is the functions of the hostile government, its right to direct officials in the occupied territory, which cease for the period of the
occupation, and not the functions of the local and civil officiais acting only in discharge of their legal duty and independently of their government.
The remainder of article 6, commencing with “cr continue only with the sanction," etc., does not have much meaning unless applied to the functions of the civil officials of occupied territory acting independently of their own government, but it is clear that the contrast between the effect of occupation on the law of the occupied territory and on the functions of the hostile government applies only to the hostile government itself or its governmental officials in the territory. This distinction between officials identified with the hostile government and strictly local or civil officials will be best brought out in connection with the second contention in the report.
Mr. Magoon's second contention was that the office of high sheriff of Havana became functus officio by the fact of occupation. He says:
If the high sheriff of Havana was an officer of the Crown of Spain, similar in character to that of the Spanish governor-general of Cuba or the Spanish governor of the Province of Havana, it would seem unnecessary to produce argument to show that, upon the military occupation of Havana being established, the office and appurtenant rights, privileges, and authority passed away with the sovereignty upon which the office depended and of which it was an instrument, agent, or vassal. If the officers of the previous sovereignty remain in office and continue to exercise the powers derived from the previous sovereignty, wherein has the previous sovereignty been displaced ?
Two propositions are assumed here which are entirely inadmissible: that sovereignty is displaced by military occupation, and that, accordingly, military occupation abrogates offices. Under the old theory of conquest it was held that on an invader acquiring firm possession of the hostile territory sovereignty over that territory and its inhabitants passed to him, subject to revestment by reoccupation or the treaty of peace. Such was the well-settled law prior to the French Revolution, and the inhabitants of the occupied territory were liable to take the oath of allegiance to the occupant and to compulsory military service in his armies. The renunciation of wars of conquest by the French people in the Constitution of 1791, however, resulted in a change of the doctrine that the inhabitants of territory