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put in their appearance and answer within twenty days after service upon them of the two papers referred to.

These papers are accompanied by two copies of what may be called the declaration or complaint filed in the case, showing the nature of the suit, which concerns a city easement or urban servitude in San Juan affecting light and ventilation of a house. There seem to be a number of persons beside the two ladies mentioned proceeded against.

All these papers were forwarded to you from the headquarters of the Department of Porto Rico, April 18, 1900, "for the necessary diplomatic action." The letter rogatory was dated on the 16th of April.

I am asked to take the necessary action.

Owing to the peculiar situation of affairs now existing with regard to Porto Rico, I have given these papers some consideration, although they manifestly apply to a private suit, with which it is not my ordinary business to be concerned.

I am not asked to take any particular action, nor even to send the letter rogatory to any particular court. It has, therefore, been necessary to consider what court, if any, has authority to do what some court is expected to do that is, order these ladies, who seem to be residents and perhaps citizens of New York, to appear and answer in a proceeding in a local court of Porto Rico. To be of any use such an order would have to be one which they ought to obey. If one which they ought to obey, they may be heavily fined by the Porto Rican court for not doing so and the case can be proceeded in to final judgment in their absence.

But upon examination of the code of procedure of New York I do not find any reason to believe that a court of that State is invested with authority to make such an order; neither do I find anything in the statutes of the United States investing the Federal courts with jurisdiction to make such an order.

It would be wholly foreign to the practice of our State and Federal courts and to our fundamental principles in regard to such matters.

The laws of Spain, which Porto Rico retains so far as not 19395-VOL 23-02-8

inconsistent with the laws of Congress and the nature of the change which has taken place by her cession to the United States, provide for letters rogatory of two kinds. One kind is a letter addressed to a Spanish court in another district or place, asking it to take certain steps, such as issuing the order now in question, and the other is addressed, through the proper diplomatic channel, to a court in a foreign country, asking similar action.

In cases of great intimacy between Spain and other nations, as between her and Portugal, it is, or was, customary for her court to address the other directly and ask for almost anything that another Spanish court could be expected to do. On the other hand, in the case of Great Britain there was considerable difficulty in obtaining in this way, as Great Britain's institutions, like our own, do not contemplate much aid by their courts to those of foreign countries.

In the courts of Great Britain a Spanish consul within his district was instructed, under the royal orders of Spain, to obtain the testimony of voluntary witnesses by proceedings before a magistrate, but to attend to citations himself. This was expressly upon the ground of the failure of English institutions to authorize the courts to take such proceedings, and was, when we consider that the Spanish consul is, so far as permitted by the local law, a judge of the peace and a judge of first instance, merely making use of a second Spanish court and not of a foreign court.

It seems to have been understood in Spain that the laws of the United States of America were in this matter the same as those of England.

Obviously, when one Spanish court sends its exhorto or letter rogatory to another Spanish court in pursurance of the laws of Spain, both courts are carrying out the will of the same sovereign. The laws of Spain expressly provide that the second court shall do what is so requested, and require the person ordered to obey the order so made.

Equally obvious, no Spanish law can give any foreign court jurisdiction in addition to the jurisdiction its own sovereignty authorizes.

Treating Porto Rico as under the same sovereignty as the

United States, I look in vain for any law requiring the courts of New York, State or Federal, to do what the Spanish law required the second Spanish court to do, or compelling persons in New York to obey orders issued as here requested.

Considering Porto Rico as foreign to the United States, I do not see that it can be in a better position than Spain would be, and find no authority for any Federal or State court in New York to issue such an order as is here requested, to people living in New York to appear in Spain and answer a complaint filed there.

It seems to me that there must be some distinct law of the United States, or of New York, requiring obedience to such orders and giving jurisdiction to make them before they can be of any validity.

It may be said that the recent legislation concerning Porto Rico, by continuing in force there the Spanish or Porto Rican laws, impliedly gives jurisdiction to Federal courts in New York to make such orders, and impliedly requires people there to obey them. But this is carrying implication to an unreasonable extent.

I therefore return the exhorto addressed to the court in New York and the other papers and suggest that they be returned to the court in Porto Rico, with a copy of these suggestions.

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

PHILIPPINE ISLANDS-DUTIES ON SPANISH PUBLICATIONS. All such Spanish scientific, literary, and artistic works, not subversive of public order, which are published in Spain and thence imported into the Philippine Islands, as were entitled to free entry into those islands under the Spanish tariff in force when our Government began to exercise authority therein are entitled, under Article XIII of the treaty of peace with Spain (30 Stat., 1760), to continue to be admitted free of import duty and of the duty or charge of 2 per cent ad valorem for harbor and commercial improvement charges under section 20 of the Philippine tariff, for the period of ten years from the date of the exchange of the ratifications of the treaty, which privilege includes the bindings in which such works, if publications, are inclosed, provided such bindings were previously admitted free.

DEPARTMENT OF JUSTICE,

May 8, 1900.

SIR: I have the honor to acknowledge the receipt of your two communications of April 6 and your communication of April 10, with its inclosure, by which you request my opinion upon the following questions, which arise in the consideration of a note from the Spanish minister at this capital, received through the Department of State, relative to the duties now being collected in the Philippine Islands on Spanish literary, artistic, and scientific publications:

"1. Has the provisional government of the Philippine Islands, under the provisions of Article XIII of the treaty of peace with Spain (1898), the right to impose an import duty of 8 per cent ad valorem, with 10 per cent of that amount added, and also an additional amount on the bindings, on Spanish scientific, literary, and artistic works, not subversive of public order, which are published in Spain and thence imported into the Philippine Islands?

"2. Are the provisions of section 178, 'Customs tariff and regulations for the Philippine Islands,' set forth in Tariff Circular No. 112, in contravention of Article XIII of the treaty of peace with Spain?

"3. If Article XIII of the treaty of peace with Spain prohibits imposing an import duty on Spanish publications of the character referred to, does said article also prohibit imposing an import duty on the bindings in which said publications are inclosed?

"4. Section 20, Customs Tariff and Regulations for the Philippine Islands,' provides for Harbor and Commercial Improvement charges as follows:

20. In addition to customs and other charges there shall be levied a charge of 2 per cent ad valorem, to be summarily ascertained, on the value of all merchandise, free or dutiable, imported into or exported from the Philippines.' Would the enforcement of this provision as to Spanish scientific, literary, and artistic works, not subversive of public order, which are published in Spain and thence imported into the Philippine Islands, be in contravention of Article XIII of the treaty of peace with Spain?"

Article XIII of the treaty of peace of 1898 between the United States and Spain provides that—

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* Spanish scientific, literary, and artistic works, not subversive of public order in the territories in question 'Porto Rico, the Philippines, and other ceded territories' shall continue to be admitted free of duty into such territories for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty."

Paragraph 178 of the "Customs Tariff and Regulations for the Philippine Islands," as now amended, imposes a duty of 10 pesos per kilogram on books, bound or unbound, and other printed matter in Spanish; and of 5 pesos per kilogram on books, bound or unbound, and other printed matter in other languages; and of 25 pesos per kilogram on engravings, maps, and drawings. A note appended to paragraph 178 provides that—

Book bindings shall be dutiable according to the component material. When the books are stitched or bound in boards, they shall pay duty as printed matter on gross weight."

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I am not informed whether the duties imposed by paragraph 178 amount to 8 per cent ad valorem, with 10 per cent of that amount added on the various publications embraced therein, but it is to be assumed that the duty laid by the provisional government of the Philippine Islands conforms to the tariff and regulations adopted for the same.

It is, I think, necessarily to be assumed that the Philippine tariff, which in the main took effect under Executive order before the treaty was ratified and proclaimed, was not intended to ignore or disregard treaty obligations which might be made. In other words, the tariff was adopted subject to any modifications which the treaty as ratified might thereafter impose. And I think it is also fairly to be assumed that, so far as the tariff was amended or supplied after the adoption of the treaty, it was not intended to set aside the pledged faith of the Government, nor did it have that effect as a later expression of the Executive will or of the law.

The test, therefore, of the reply to all your queries is to

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