firmly occupied by the French armies became French, and this was embodied in a decision of the Court of Cassation in 1818.5 A decision of a similar nature emphasizing the provisional nature of military occupation until the termination of war was made some years afterwards by a German university in the case of the debts and domains of Hesse-Cassel confiscated or alienated by Napoleon the First. In 1844 this doctrine was incorporated into the work of the great German publicist Heffter. Since then it has become universally accepted by publicists of every nationality, and numerous applications of it are embodied in the Hague Regulations. Dicta embodying the old doctrine of conquest during war are to be found in United States v. Rice and Fleming v. Page, but they are merely survivals of the old doctrine and without authority to-day. The true doctrine was early expressed by Chief Justice Marshall in the case of the American Insurance Co. v. Canter, when he said:

7

8

The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed.

As Mr. Magoon's second proposition, that the office of high sheriff became functus officio through the fact of occupation, was based on the proposition that the occupation displaced Spanish sovereignty, the two propositions must fall together. The exercise of sovereign power by Spain was suspended by the military occupation, but the Spanish sovereignty was not displaced until the exchange of ratifications of the treaty of peace. In fact, the position that any office is abolished by the fact of occupation alone is inadmissible. Offices exist by law, whether the law proceeds from a legislature or the executive, and the effect of military occupation may be to suspend but it does not extinguish them.

But although Spanish sovereignty was not extinguished by the

5 T. Ortolan, Diplomatie de la Mer, 1, 292.

• III Phillimore, 841.

14 Wheaton, 246.

89 Howard, 603.

1 Peters, 542.

military occupation, it was extinguished by the exchange of ratifications of the treaty of peace, and what the report has to say on the effect of the extinction of sovereignty on offices, while not applicable to military occupation, is applicable to the condition of affairs which arose out of the relinquishment of Spanish sovereignty in the treaty. It will be remembered that Mr. Magoon's second contention was that if the office of high sheriff of Havana was similar in character to that of the governor-general of Cuba or to that of the governor of Havana, it passed away with Spanish sovereignty. The distinction he had in mind between offices which do not pass away with the extinction of sovereignty and those which do was based on a passage quoted by him from an opinion of the Attorney-General to the Secre tary of War dated July 10, 1899. As that opinion is a valuable statement of the law on this point it will be quoted with considerable fullness.

The opinion of the Attorney-General was in reply to six questions by the Secretary of War, the first four of which are as follows:

1. Are the Spanish laws and regulations of municipalities in the dependencies of Spain now in force in Cuba as they existed at the time the island was relinquished by Spain?

2. Are the provisions of said laws and regulations, which required the assent and approval of the officers of the Crown of Spain to the various acts of the municipal authorities, now in force in Cuba?

3. Did the authority and power of said officers of the Crown of Spain, under said laws and regulations, pass to the officers of the United States now in charge of the government of civil affairs in said island, and may such authority now be exercised by said officers of the United States?

4. What direction and control over the action of the municipal authorities of Havana in the matter of engaging in the construction of public works for said city, by contract, may properly be exercised by the officers of the United States now discharging the functions of civil government in Cuba.10

In answer, the Attorney-General said:

By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, those internal laws and regulations which are designated as municipal continue in force and operation for the government and regulation of the affairs of the people. of said territory until the new sovereignty imposes different laws or regu

10 22 Opinions of Attorneys-General, 527.

lations. Those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty. Political and prerogative rights are not transferred to the succeeding nation. Such laws for the government of municipalities in said territory as are not dependent on the will of the former sovereign remain in force. Such laws as require for their complete execution the exercise of the will, grace, or discretion of the former sovereign would probably be held to be ineffective under the succeeding power. So that any inchoate rights or grants made by a municipal body in Cuba while under Spanish sovereignty, which for their completion required the assent or approval of the Crown or of the Crown officers, would, in the absence of such assent or approval made prior to the treaty of cession, be ineffective and incomplete. The authority and power of the Crown and of the Crown officers in such instances did not pass to the officers of the United States, because the royal prerogatives and political powers of one government do not pass in unchanged form to the new sovereign, but terminate upon the execution of a treaty of cession, or are supplanted by such laws and rules as the treaty or the legislature of the new sovereign may provide.

In other words, municipal organizations and the laws with regard to them continue after the change of sovereignty until the new gov ernment directs otherwise, while the Crown, Crown offices, and the laws with regard to them pass away with the sovereignty which created them. The latter are what the Attorney-General terms laws pertaining "to the prerogatives of the former government." They are an instance of the more general "political laws" which the Attorney-General also mentioned as abrogated by this extinction of sovereignty, and were specified because of their application to the questions which the Attorney-General was asked. As this distinction of the Attorney-General is well settled, and as it was accepted by Mr. Magoon in his report and by the War Department in its conduct of affairs in Cuba, it is not thought necessary to go into the authorities in support of it. The only question that remains is that asked by Mr. Magoon: "Was the office of high sheriff political in character, and did it pertain to the prerogatives of the Spanish Crown?" The latter part of the question might be put more succintly in the terminology of the Attorney-General, Was he a Crown officer? Certainly not in his municipal capacity, for it was municipal officers that the Attorney-General was contrasting with Crown officers. Nor would it seem in his capacity as an officer of the courts. What the

Attorney-General meant by a Crown officer was one through whom the "will, grace, or discretion" of the Crown would be exercised or, in other words, one who was a governmental officer, representing the policy of the Crown. This would not apply to one whose only

national function seems to have been the service of writs. This brings us to the distinction between political or governmental and civil officers.

If mili

The distinction is one familiar to the law of military occupation in time of war. It is there used to indicate those officers whose authority is suspended during the occupation because of the closeness of their identification with the hostile government itself. tary occupation is followed by the cession of the territory, the laws pertaining to their offices, which were suspended during the occupation, are abrogated. It was to this class that the office of governorgeneral of Cuba and governor of Havana belonged.

Just where the line is to be drawn between political officers and nonpolitical officers is impossible to say, but the clearest examples of nonpolitical officers are those given by Dr. Lieber in article 39 of his Instructions, already quoted, namely, "judges, administrative or police officers, officers of city or communal governments."

Rivier 11

In default of orders or instructions it would appear natural that the political functionaries, organs of the government, should retire, while the purely administrative functionaries and employees would do well not to desert their posts. According to the distinction established above, prefects, subprefects, governors, etc., ought to retire; in any case their continuance in office would be most difficult. Their adhesion to

the enemy occupation would strongly resemble treason. It is entirely different with municipal and communal authorities, mayors, etc., agents of police, teachers, etc.

Numerous authorities to the same effect could be cited if desirable. What is noteworthy of all of them is that municipal officers and the officers of the courts are the typical examples of nonpolitical officers. If all the functions of the high sheriff had continued to be exercised, therefore, they would have been of the typical nonpolitical class. Nor is the position that the office of high sheriff was a nonpolitical

11 II, 304, 305.

office weakened by anything said in the report. Probably all Spanish officers were offices of the Crown at the time the cédulas were issued that are cited in the report, in the sense that their creation and provision was a royal prerogative, but this does not bring them within the meaning of the rule laid down by the Attorney-General. It is true, also, that the police power is one of the highest and most despotic powers of sovereignty, and that our courts have held that it can not be alienated, but health officers are not what are called political officers. It is a familiar fact that a very large part of the police power is exercised by municipal officers and these are of all officers the ones that are nonpolitical in the sense of the law in question. The continuance of these nonpolitical officers in authority did not involve a continuance of the sovereignty of Spain. It need have meant nothing more than that the law of nations, which is a part of the law of all civilized nations, decrees that the nonpolitical laws and the nonpolitical officers under the old sovereignty shall be the laws and officers under the new sovereignty until the new sovereignty shall decree otherwise. It seems clear, therefore, that, according to the rule of the law of nations laid down by the Attorney-General, the relinquishment of Spanish sovereignty did not abrogate the office of high sheriff of Havana. Much of the same reasoning would apply to the Sanches case. The plaintiff there was an officer of the courts and therefore not a political officer.

The invalidity of the contention in the report that the office of high sheriff was abrogated by the military occupation is fatal to the proposition depending on it that the complainant should have sought relief under Article VII of the treaty of peace for injuries prior to the exchange of ratifications instead of Article VIII, which declares that the relinquishment of Spanish sovereignty should not impair private property rights, and to the proposition also depending on it that if the office were property it was property situated in the track of war and destroyed by war for which the owner was entitled to no compensation.

If, then, the slaughterhouse privilege of the Countess O'Reilly was not abrogated by the American occupation or by the extinction of the sovereignty of Spain in Cuba, was it abrogated by the order of