practice in this Department that when an opinion is desired from the Attorney-General, the question to which an answer is desired, as well as a statement of the facts upon which the question is based, should be clearly contained in the request for the opinion, and that the Attorney-General should not be left to seek out the facts and infer the questions submitted from the correspondence inclosed. (See 20 Opin., 253, 270, 526, 699.)

The papers are herewith returned, in order that they may be resubmitted with such a statement of the facts and of the legal questions which it is desired that I shall answer as will conform to this rule.

Very respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

ADMINISTRATION-ALIEN LAW OF CUBA-TREATY OF PARIS.

Under Article IX of the treaty of Paris, 1898 (30 Stat., 1759), a Spaniard born in the peninsula, who died in Cuba before the expiration of one year from the ratification of that treaty, was, in comtemplation of the treaty, a Spanish subject at the time of his death.

Article XI of that treaty obliges the United States to see that Spaniards in Cuba have the same rights to appear before Cuban courts and pursue the same course therein as citizens of Cuba, but it does not make it unlawful for the laws of that country to give them better methods of appearing and proceeding as aliens or Spanish subjects than those enjoyed by the citizens themselves. Consequently that article does not prevent article 44 of the alien law of Cuba from being applicable to the estate of Don Ramon Martí y Buguet, a native of Tarragona, Spain, and a Spanish subject, who died intestate at Baez, Santa Clara, Cuba, July 2, 1899.

Under article 44 of said alien law, foreign consuls were authorized to be the administrators and judges in charge of the business of settling estates and succession to property of aliens dying intestate in Cuba. This privilege having been denied the Spanish consul by the court of Santa Clara, that court was without jurisdiction to administer the estate of Don Ramon Martí y Buguet. To oust the consul altogether and proceed without him was to proceed without jurisdiction.

DEPARTMENT OF JUSTICE,

April 26, 1900.

SIR: I have the honor to acknowledge the receipt of the following request for an opinion:

WAR DEPARTMENT, Washington, April 16, 1900.

SIR: I have the honor to present a matter arising in a court of Cuba which seems to involve an interpretation of the treaty of peace with Spain.

On July 2, 1899, one Kamon Martí y Buguet, a native of Tarragona, Spain, and a Spanish subject, died intestate at Baez, Santa Clara, Cuba, leaving an estate. The court of Santa Clara, having jurisdiction under Spanish law to administer upon estates of persons dying within its jurisdiction, assumed control of said estate and proceeded to administer thereon pursuant to Spanish law for the administration of estates of deceased natives of Cuba.

On the 15th of July, 1899, the Spanish consul at Cienfuegos, having learned of the death of Martí, addressed a letter to the judge at Santa Clara, requesting that his consulate be permitted to administer upon the estate of the deceased, pursuant to the provisions of article 44 of the alien law put in force in the island of Cuba while Spanish dominion prevailed therein.

The court refused to comply with the request of the Spanish consul, and the estate was administered upon in accordance with the laws regulating the administration of estates of deceased natives of the island.

The Spanish minister at this capital calls the attention of the Government of the United States to this matter and requests this Government to annul the orders made regarding said estate by the judge of said court.

The questions thus presented appear to me to be:

1. Under the provisions of the treaty of peace between the United States and Spain (December 10, 1898), did the court of Santa Clara have exclusive jurisdiction to administer upon the estate of said Don Ramon Martí, deceased?

2. If the said Den Ramon Martí at the time of his death was a resident of Santa Clara, Cuba, did the Spanish consul

have the right to participate in the administration of said

estate?

3. If the request of the Spanish consul to be allowed to participate in the administration of said estate was improperly refused by the court, did the court thereafter possess jurisdiction to administer upon said estate?

I have the honor to request that you will favor me with your opinion upon the matter above presented.

Very respectfully, yours,

The ATTORNEY-GENERAL.

ELIHU ROOT,
Secretary of War.

NOTE. The original papers in the case are also inclosed, which please return with your reply.

1075 and inclosures 1, 3, 4, 5, 6, 7, and press copies.

The inclosures of your letter show the following order of the judge of Santa Clara, dated the 25th of July, 1899:

"As it appears that Don Ramon Martí y Buguet, a native of Tarragona, died on the 2d instant, in the precinct of Baez, belonging to this judicial district, without leaving any relatives or testamentary provisions, this court has ordered the proclamation of the intestacy. As it appears that, on the 15th instant, the Spanish consul at Cienfuegos addressed a communication to this court, stating that, having heard that the Spanish subject, Don Ramon Martí, had died intestate, he has appointed Don Benito Menduiña, under article 44 of the alien law in force, to draw up the inventory and to carry out all the other proceedings provided by said law. Considering: First, that there is no evidence to show that Don Ramon Martí had obtained the registration required by article 9 of the treaty of Paris, concluded between Spain and the United States on the 10th December of last year, in order to retain his Spanish nationality, and (considering) that, until such registration is proved by record, he must be regarded as a native of Cuba, and, consequently, subject only and exclusively to the provisions of the law of civil proce dure and the civil code now in force. Considering: that. even if the reason hereinbefore stated did not exist, the pro

visions of the alien law cited by the Spanish consul at Cienfuegos would still not be applicable, because, under article 11 of the said treaty, Spaniards residing in the territories over which Spain has ceded or abandoned her sovereignty, remain subject, in civil and criminal matters, to the jurisdiction of the country in which they reside, in accordance with the ordinary laws in force in such territories, and must appear and plead in the same manner as the citizens of the country in which they reside. In view of the articles of the treaty of Paris, it is declared that the intervention of the Spanish consul at Cienfuegos in these proceedings can not be permitted, and it is ordered that he be notified of this decision by a courteous note."

An examination of Article IX of the treaty of Paris shows that Spaniards residing in the ceded or relinquished territories were to have a year within which to make up their minds whether to preserve, not acquire, Spanish nationality, and I think there is no doubt that a Spaniard, born in the peninsula, who died in Cuba before the expiration of that year, was, in the contemplation of the treaty, a Spanish subject at the time of his death.

Article XI of the treaty, relied upon by the judge, is, in the English copy, as follows:

"The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject, in matters civil as well as criminal, to the jurisdiction of the courts of the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts, and to pursue the same course as citizens of the country to which the courts belong."

The first part of this article treats of the position of Spanish residents when proceeded against in court; the latter provides implements for their use. The former subjects them as defendants to the tribunals, according to the ordinary laws which may regulate the competency of the tribunals (leyes comunes que regulen su competencia); the latter places at their disposal, though aliens, the right to appear before the tribunals (comparencia en juicio) according to

the same laws of procedure (forma) and carrying on the same course of pleading and practice (procedimientos), as citizens of the country.

In so placing at their disposal the free right to appear and proceed like citizens, I do not understand that the treaty intended to make it unlawful to give them better methods. of appearing or proceeding, as alien parties or as Spanish residents, in addition to those of citizens. The provision was for their benefit-they were to be allowed, at least, the same forma" and same "procedimientos", as citizens. On the other hand, there is still less reason to say that as defendants they could not be subjected to any laws regulating the jurisdiction of the courts except those concerning cases between citizens of the country. The first part of Article XI says nothing of citizens of the country. It says they shall be subject to the tribunals according to the ordinary, the usual laws (comunes) concerning their competency or jurisdiction.

What is meant by ordinary or usual? It was usual in every one of the countries mentioned to have laws concerning aliens, laws which incidentally affected the competency of the courts. Article IX of the treaty alludes to these long-familiar laws and the possibility of others to be enacted. Such as these, in my opinion, are not excluded by the word ordinary (común).

Spanish residents, at the time of the making of the treaty, were somewhat uneasy lest they should be persecuted, and desired to be guaranteed that a proper course of procedure would be followed in criminal and civil actions against them; but they expected to be aliens, subjects of a foreign sovereign, and to be treated by the laws as such. They desired to be subjected to the tribunals only as other aliens might be; to the ordinary tribunals acting without special authority directed against them.

Article 47 of the alien law, which denied any special fuero to aliens (not, as translated, "special right or privilege"), operated to confirm a transfer of aliens (extranjeros) in the provinces from the old fuero de extranjeria and other special fueros (e. g., of war and marine) to the same courts to 19395-VOL 23-02-7