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be found in the language of Article XIII construed in conjunction with the situation presented previous to the ratification and proclamation of the treaty on April 11, 1899.

The significant phrase of Article XIII is that the articles described "shall continue to be admitted free of duty." The privilege is limited to such Spanish scientific, literary, and artistic works, not subversive of public order, as had previously been admitted free into the territories in question. I am not informed by your communication whether there was any difference in the construction of this privilege under Spanish rule and under our provisional government between the date of the termination of Spanish sovereignty and the ratification of the treaty. If there was a difference because the privilege under the Spanish laws was not extended until the treaty was ratified, then I am of opinion, under all the circumstances, that the intention of the treaty was by the use of the word "continue" to recur to the privileges granted under Spanish law and practice, and that that intention must rule the case.

On this test, therefore, it is not necessary for me to consider the full import of the phrase "Spanish scientific, literary, and artistic works," nor to point out that books, as well as certain other publications, are ordinarily included in the term works," and that the bindings of books are commonly considered to be a part of books. Nor, on the other hand, is it necessary for me to discuss the nature and extent of the qualification to be found in the adjectives “scientific,“ "literary," and "artistic," because a complete rule of practice will be found by following the rulings and distinctions of the Spanish privileges, which were directed to continue by the treaty. By paragraph 367 of the Philippine tariff it appears that the schedules and provisions thereof are based upon the tariff and taxing laws theretofore in operation in the Philippine Islands. In the case of the Cuban tariff, which went into effect on January 1, 1899, it seems that the President directed the continued free admission of certain articles referred to in paragraphs of the free list of the preceding Spanish tariff, which appear to correspond to sections 3, 4, and 5 of paragraph 321 and to paragraph 358 of the Philippine tarff. This direction of the Executive, which

seems to be similar in the Cuban and Philippine tariffs, exempted from duty national articles returned from foreign exhibitions, and under certain conditions works of fine art, archæological and numismatical objects, and specimens and collections of mineralogy, botany, and zoology, and small models for educational and scientific use. 1 am not advised whether this exemption embraces the entire exemption accorded under the preceding Spanish tariff to Spanish scientific, literary, and artistic works. If, therefore, books, including their bindings, or other publications, are included among the "Spanish works" which were entitled to free. admission under the Spanish tariff for the Philippine Islands they are to continue to be admitted free, otherwise not.

This view also renders it unnecessary for me to discuss the point suggested in the correspondence that the phrase "Spanish works" is not only intended to embrace no other books or publications than those published in Spain and thence imported into the Philippine Islands, but also no other than those which are the production of Spanish literary men or Spanish scientists or artists. The same rule and test would apply to separate or detached bindings for books or other publications, although there is nothing in your queries to suggest that the books or publications in question are not bound in the ordinary way but are only inclosed, so as possibly to carry in free of duty, unjustly or improperly, the mere commercial articles which ordinary detached bindings would be.

I may therefore answer your four questions comprehensively by stating that, in my opinion, 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 to continue to be admitted free of import duty and of the duty or charge of 2 per centum 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 said bindings were previously admitted free.

Very respectfully,

JOHN W. GRIGGS.

The SECRETARY OF WAR.

CUBA-ARTICLES OF WAR.

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murder (inter alia)

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Article 58 of the Articles of War, which provides that “In time of war, insurrection, or rebellion * * shall be punished by the sentence of a general court-martial, when committed by persons in the military service of the United States," does not apply to the present situation of affairs with regard to Cuba. Therefore a private of the Second United States Artillery who committed homicide in Cuba subsequent to the treaty of peace with Spain, the victim being a teamster in the military service, should not be tried by court-martial nor by a military commission.

Article 59 of the Articles of War does not require that such private be delivered to the Cuban courts, but it is, nevertheless, proper to permit such courts to try him.

DEPARTMENT OF JUSTICE,

May 9, 1900.

SIR: I have received your request for an opinion as follows:

"To the Honorable

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"WAR DEPARTMENT, Washington, April 28, 1900.

"The ATTORNEY-GENERAL.

"SIR: Private John York, Battery I, Second United States Artillery, is now held at Havana, Cuba, awaiting trial by the civil courts of Cuba for the killing of William Fisher. The homicide was committed in Cuba, subsequent to the treaty of peace with Spain, and by an enlisted man, on premises occupied by United States troops, the victim being a negro teamster in the military service.

"On behalf of the accused it is claimed that the killing was in self-defense; that Fisher was a desperate character and was making a murderous assault on York at the time; and that he should be tried by court-martial or military commission and not be turned over to the civil courts of Cuba

for trial. It is understood that York is charged with murder, which is a capital offense, and it is desired by the military authorities in Cuba that your opinion should be obtained for their guidance in this and future similar cases.

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The fifty-eighth article of war provides thatIn time of war, insurrection, or rebellion murder [inter alia] * shall be punished by the sentence of a general court-martial, when commited by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment. provided, for the like offense, by the laws of the State, Territory, or district in which such offense may have been committed.'

"And the fifty-ninth article of war provides:

When any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of any of the United States which is punishable by the laws of the land, the commanding officer and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs are required, except in time of war, upon application duly made by or on behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him, in order to bring him to trial. If, upon such application, any officer refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service.'

I have the honor, therefore, to request your opinion as to whether, in view of the nature of the military occupation in Cuba and of the Articles of War for the government of the Army, York can be legally tried by a court-martial or by military commission, or whether his trial must be by the civil courts of Cuba.

"I inclose a letter from the adjutant-general, Department of Havana, dated February 16, 1900, and invite attention to the indorsements thereon; and request that it be returned with your opinion.

"Very respectfully,

ELIHU ROOT, "Secretary of War."

Article 58, unlike article 59 of the Articles of War, was new legislation in 1863. It was section 30 of an act entitled "An act for enrolling and calling out the national forces and for other purposes.

Upon a critical examination of it, it does not seem to have any counterpart in the articles of war of Great Britain, from which most of ours have been taken. It has been supposed to be remotely derived from a British article of 1774 and subsequent years, providing for the punishment of civil crimes committed by soldiers in Gibraltar and other places beyond seas; and that this British article must have been known to the person who drafted article 58 is true, but the English article applied to times of peace, and was based upon the necessity for punishing civil offenses by soldiers where, in time of peace, there were no civil courts, or none administering the ordinary laws of England through the ordinary instrumentalities. Naturally, when we copied the British articles in 1776 and reedited them in 1806, partly because we had no such places as Gibraltar, etc., occupied by armies in time of peace, but partly, perhaps, because it was not deemed proper to exercise the kind of power made use of in subjecting the civil offenses to military courts in time of peace, we omitted to copy this particular British article. (Hale, Pleas of Crown, 500.)

Article 58, then, enacted in 1863, can not be interpreted by merely ascertaining the interpretation placed upon some previous article.

It can, however, as I think, be interpreted by reference to British law. The British articles of war originally and properly concerned the government of the British army; that is, applied so far as military offenses, offenses relating to discipline, and the like, were in question. In its essence the British article of 1774 was wholly different from this. It dealt with purely civil offenses, and undertook to punish them through military courts merely because there were no others in the particular places to deal with them.

Article 58 also deals with purely civil offenses, but it deals with them only "in time of war, insurrection, or rebellion." It deals with them, that is to say, under circumstances suggesting those in which, according to the common law of Eng

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