Similar questions arising in the Philippine Islands would not be governed by the same rules applicable to Cuba. With regard to those

islands, whatever property or public rights pertained to Spain at the time of the cession have been transferred to the United States, and can only be disposed of in accordance with the will of Congress.

DEPARTMENT OF JUSTICE,

September 8, 1900.

SIR: I have the honor to acknowledge the receipt of your communication of August 7, 1900, submitting for my opinion the following questions:

"1. Did the Spanish mining laws continue in force in Cuba by virtue of the laws of war and of nations, after the American occupation of the Island?

"2. May the Military Government in Cuba continue the granting of mineral claims in that Island, upon compliance with the provisions of the mining law as existing prior to the American occupation?

"3. Did the powers possessed by the Spanish officials for the administration of said laws, pass to the officers of the existing Military Government: that is to say, may the present civil governors of the existing provinces of Cuba alienate minerals in a state of nature in Cuba, by executing and delivering deeds to mining claims pursuant to the Spanish laws?

"4. Has the Military Government of Cuba the right to confer upon an individual the privilege of exercising the right of eminent domain by virtue of the Spanish law regulating the exercise of said right in connection with mines and minerals?

"5. May the President of the United States, as commander in chief of the Army and Navy, now exercise the power of legislation and provide for the alienation of minerals and the creation of mining rights in Cuba?

"6. May the President delegate such right of legislation to the Secretary of War, the Military Governor of Cuba, or other officer of the military government of the Island?

"7. Are similar questions arising in the Philippines to be governed by the rules applicable to those arising in Cuba?" Accompanying your letter is a report from Charles E. Magoon, Esq., law officer of the War Department, Division

of Insular Affairs, in which the laws of Spain prevailing in Cuba prior to the relinquishment of sovereignty therein by the treaty of Paris are stated. Assuming this statement of Spanish law to be correct, then all inorganic, metalliferous, combustible, saline substances, calcareous phosphates, barytina, fluorspar, and precious stones, whether found in veins or strata, or in whatever other form, belonged to the Spanish Crown, and no one was authorized to dispose of them without the concession of the Spanish Government given in its name by the governors of the provinces.

The method of obtaining title to a mine under Spanish law is set forth as follows:

"In order to obtain title to a mine, application for ownership, proving the existence of mineral, must be made to the governor of the province.

"This may be done without consent or knowledge of the owner of the land in case the surface land of the mine should happen to belong to other than the applicant.

"Until the governor has given permission to examine the mine, and should other objections be made, the matter may be referred to the ministry within thirty days; no work can be done. This permission is given on the report of the official mining engineer (who must make such report within four months) thirty days after such report.

"Should the mine for which ownership is thus asked for be situated on lands belonging to a person or persons other than the applicant for ownership of such mine, such applicant, when he receives his title, must pay the owner of the land its full value and one-fifth more.

"Should the owner of the land object and refuse to sell, or a price can not amicably be agreed upon, he (the owner of the land) may be forcibly ejected or expropriated, being paid for his land a price and one-fifth more, adjusted by three appraisers named, one each by both contending parties and the Government.

"As soon as applicant has thus acquired title to his mine. he may erect buildings and works and open shafts to operate it, this always with the approval and inspection of the Government mining engineer.

"The fact of acquiring title is published in the official bulletin.

"The application for ownership must be accompanied by a surface plan of the mine. This plan must always be multangular in shape, and each mine can not exceed 20,000 square meters in size."

It thus appears that mines, minerals, and mining rights in Cuba were vested in the Crown, and that the granting of mining or mineral rights to an individual was an exercise of the imperial prerogative. When Spain relinquished her sovereignty in Cuba, she parted with all the royal prerogatives. The laws which theretofore had governed the exercise of prerogative rights of the Crown of Spain did not pass to the successors in sovereignty, whether such successors be considered the United States of America as trustees for the pacification of the island or the people of Cuba in a congregated sense. (See Mumford v. Wardwell, 6 Wallace, 435; Pollard's Lessee v. Hagan, 3 Howard, 225; Harcourt v. Gaillard, 12 Wheaton, 523. See also, 22 Opin., 514, 521, 546, 551.)

I am of opinion that, under the principle of these decisions and of the opinions heretofore rendered by me that have been referred to, the Spanish mining laws were not continued in force in Cuba by virtue of the laws of war or of nations, or according to any other principle of jurisprudence, after the American occupation of the Island.

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The possession of Cuba was wrested by the United States from Spain by force of arms under the constitutional direction of the President of the United States as Commander in Chief of the Army and Navy, in pursuance of the joint. resolution of Congress passed April 20, 1898. This resolution declared that the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said Island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the Island to its people." Both by the rules of public law that apply to foreign territory seized and held as a conquest and by the terms of the resolution of Congress, the United States, upon

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taking possession of the island, rightly entered upon the exercise of sovereignty, jurisdiction, and control over said island. All the usual incidents of sovereignty and jurisdiction pertain to the military occupation originally gained by force of arms and now maintained in pursuance of the treaty of peace. It is true that that sovereignty and jurisdiction are exercised by the United States as a trustee for the benefit of the people of Cuba, but the United States has a distinct and well defined duty and purpose in connection with Cuba, namely, to govern and control the island, to "exercise sovereignty, jurisdiction, and control over it" (to use the language of the resolution) for its pacification. No limitation upon the ordinary power of a conqueror over conquered territory is created by this trust. The United States is bound, in good conscience, to exercise its temporary sovereignty and control for the benefit of the Cuban people, but as to what acts of sovereignty it will perform, the particular manner in which it will perform them, and the subject upon which it will permit its sovereign force to operate, the United States, acting through the President as Commander in Chief, is the sole judge. The public property of Cuba, by the treaty of peace, was not vested in the United States as a proprietor, but had theretofore been partly in its possession as conqueror, and the remainder was by Spain delivered over to its possession as conqueror and as trustee for the future benefit of the Cuban people. Cuba, there fore, rightly continues to be governed under the law of belligerent right and not under the domestic laws of the United States. According to the law of belligerent right, the will of the conqueror supplants the former political laws and powers which prevailed in the conquered territory, and the conqueror may make such new laws, rules, and regulations as he sees fit. (Brown v. U. S., 8 Cranch, 110.) Under this principle, it is lawful for the conqueror, in administering the conquered territory, to make such use of the property previously belonging to the former sovereign as he sees fit. There is, therefore, in the President of the United States, acting by virtue of his constitutional authority as Commander in Chief of the Army and Navy, adequate power to use and make disposition of property in Cuba

formerly belonging to the Crown of Spain or subject to the Imperial prerogative, and this includes the right to dispose of mining and other property formerly belonging to the Spanish Crown. Whether this power of the President has been adequately conferred upon the military governor or other American officers in Cuba I am unable to say, as I am not furnished with the orders of your Department which have been heretofore issued, but, in my judgment, the President, as Commander in Chief, could authorize the military governor of Cuba to make grants of mining rights, if the President desired to do so.

I beg to suggest, however, that whether such a power should be exercised by the President or be by him conferred upon the military government in Cuba, is a question involving important and delicate considerations, in connection with which I call your attention to the language of an opinion rendered by me to your predecessor on the application of the Commercial Cable Company for leave to land its cable on the island of Cuba (22 Opin., 408).

Similar questions arising in the Philippine Islands would not be governed by the same rules applicable to Cuba, for the reason that the Philippine Islands have been ceded to the United States, and whatever property or public rights pertained to Spain at the time of the cession have been transferred to the United States, and have become its property, and can only be disposed of in accordance with the will of Congress (22 Opin., 544, 546).

Very respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

WAR-REVENUE TAX-FERMENTED LIQUORS.

Under the war-revenue act of June 13, 1898 (30 Stat., 448), beer, which before that date had been transferred by a brewing company to itself as a wholesale and retail dealer, said company having theretofore paid the tax of $1 per barrel as brewer, and also the special tax as wholesale and retail dealers, is not subject to the additional tax imposed by that act on beer, etc., stored in warehouses, or removed for consumption.