have never yet manifested their sovereign will in the shape of civil and criminal laws. The President, holding the sovereign powers of the people of Cuba subsequently to the presence of our Army there, has made all the civil and criminal laws which can be regarded as the laws of the sovereignty of Cuba.

The case is not one, therefore, where the sovereign of Cuba should be regarded as giving a special license to be exempt from civil and criminal process, in waiver of one of his rights, but where he should be regarded as displaced in all of his rights by a trustee, in whose hands they all are now and were before he had any civil and criminal process.

Among these rights the right to waive rights is included; but a trustee is not supposed to exercise any of his trust powers in conferring benefits upon himself.

While, therefore, it is not to be supposed that the President can not, in the exercise of his trust, exempt the Army from those laws, formerly the laws of the sovereignty of Spain, which he himself has adopted as the laws of the soveignty of Cuba, so far as may be necessary (if at all necessary) to carry out the purposes of the trust and for the benefit of Cuba, the international theory referred to is foreign to the question whether he has done so.

I take it for granted that he has not expressly made any such exception in the laws, and I know of no reason for presuming any intent to that effect.

Nor, while the passage of an army upon a hostile expedition, could not, without breach of faith, be consented to and then practically prevented by the same sovereign, by a delay which might well defeat the object of the expedition and endanger the safety of the sovereign of the army, am I convinced that the law of such a case should be extended to cases of occupation for purposes so wholly different as those of our occupation of Cuba. Several things are assumed in the one case which can not be in the present, and chiefly that the detention of soldiers by civil or criminal process would be inconsistent with the successful accomplishment of the object of the expedition. This is the very gist of the supposed "breach of faith." And we can not, as I have sug

gested, presume in the case of some bodies of troops stationed in Cuba for the purposes for which ours are there, that to try a soldier for murder will defeat the object of the presence of the troops. If there is to be any presumption, it seems to me that such a trial would rather tend to further that object.

Moreover, the supposed exemption of the Army, even if it were granted by Cuba, would be granted to the United States as a nation for our national purposes. It would carry with it no individual right of Private York.

Accordingly, the United States would be free to waive it or insist upon it without consulting Private York. And in this the President would represent them.

It may be thought that Private York is in Cuba against his will and has been ordered there by the President; but he gave his consent when he entered the service and agreed to obey all lawful orders of his superiors.

It might also be thought that, though a soldier, he is protected by the fifth and sixth amendments to the Constitution; but they expressly except the land and naval forces of the United States. Besides, these amendments concern only Federal prosecutions for Federal offenses; and, as American civilians are subject to be tried by these Cuban courts, the question is not whether Private York, though a soldier, can claim exemption, but whether he shall be exempt because he is a soldier.

On the whole, therefore, I do not think that there need be such a failure in Cuba of the chief end and aim of all government as would be implied in the inability to find any form of trial and punishment for such crimes as the one of which Private York has been accused, when committed by American soldiers.

That the President is exercising the governmental powers, civil and military, of the people of Cuba, principally by means of American soldiers, does not give Cuba a status taking its character from martial or military law or government. It seems to me, then, that it is useless to discuss at length the question of sending Private York before one of these military commissions, peculiarly war courts, made use

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of in times of martial law and military government over enemy country, to punish, sometimes soldiers, but chiefly civilians, enemies, and residents, for offenses not within the the Articles of War.

I may remark, however, that the act attributed to York. as done in Cuba in time of peace, has not been prescribed by Congress as either a civil or military crime against the United States; that Congress excluded it from article 62, providing for the trial of undescribed offenses other than capital, prejudicial to discipline; and that as martial law or the safety of the United States does not necessitate such a commission, so neither can the other argument of necessity be urged, that there are no courts open to inquire into and punish such deeds.

Unless Simmons (Courts-martial, p. 30) misinterpreted the amendment of 1881 of a British article, already referred to, prescribing for soldiers in Gibraltar, etc., not especially in war, but in peace rather, courts-martial, it would seem that British soldiers committing civil crimes were subject to civil courts of a recently conquered province, because those courts were under British authority. Yet, unlike those of Cuba in the present case, the courts of such a province might well be warped by the most intense hostility to the conquering soldiery.

I therefore answer your questions by saying:

1. In the present situation of affairs with regard to Cuba, neither a court-martial nor a military commission should try Private York.

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

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

DRAWBACK-LEAD.

The drawback to be allowed under section 30 of the act of July 24, 1897 (30 Stat., 211), on refined lead withdrawn from bond, manufactured, and exported, the same being originally part of a quantity of base bullion that had been imported and upon which regular duties had been paid, under Par. 182 of the same act, should be based on the quantity of refined lead thus used, plus 2 per cent for waste (that is, an amount equal to the duties paid on the materials actually used), less the statutory 1 per cent of such duties.

DEPARTMENT OF JUSTICE,

May 10, 1900.

SIR: In your communication of June 30, 1899, recently referred to me, you state that, acting under the authority of section 29 of the tariff act of July 24, 1897 (30 Stat., 151), providing for the smelting or refining of imported ore or crude metal in bond, The Guggenheim Smelting and Refining Company, of Perth Amboy, N. J., imported 60,465 pounds of base bullion (act of July 24, 1897, par. 182), being unrefined lead bullion containing small quantities of silver and gold and some impurities, and refined the same in bond at their works, setting aside 54,465 pounds of refined lead, being 90 per cent of the lead contained in the imported base bullion.

The refined lead thus set aside was not "reexported" without payment of duties, but was withdrawn, after entry and payment of duties, for domestic consumption and was used by Messrs. Tatham & Bros. in the manufacture of shot for export. Upon the withdrawal of the refined lead for domestic consumption, the regular duties were paid, not on the 54,465 pounds of refined lead withdrawn, but on the 60,465 pounds of base bullion imported, of which the refined lead was the principal but not the sole product. This was in accordance with the opinion of this Department of December 29, 1898 (22 Opin., 285), in which it was held, with respect to refined lead set aside as the product of imported lead ore, that, in case the refined metal set aside as the product of imported lead ore is not "reexported" within six months after the receipt of the ore, the regular duties

must be paid, not on the refined metal set aside, but on the imported ore from which it is manufactured.

Upon the exportation of the shot manufactured from the refined lead so produced from the imported base bullion, Messrs. Tatham & Bros. made application, under section 30 of the act of July 24, 1897, for a drawback equal in amount to the duties paid on the imported base bullion. The matter involved in this application was referred to the collector of customs of New York for investigation, who reported the approximate results obtained in refining 100,000 pounds of base bullion in bond, as follows:

One hundred thousand pounds of base bullion contains 97,500 pounds of lead, 2,000 pounds of silver, and 500 pounds gold. Of the 97,500 pounds of lead, 2,000 pounds are lost in refining and 95,500 recovered. Thus it appears that 95,500 pounds of refined lead are recoverable, while only 90 per cent of 97,500, or 87,500 pounds, are required to be set aside. The difference, 7,750 pounds, is delivered "free" to the owner.

In view of these facts and the provisions of the law, you declined to grant a drawback equal in amount to the duties paid on the imported bullion, holding that only the refined lead withdrawn plus the 2 per cent lost in refining could be considered as used in the manufacture of the exported shot, the remaining products, silver, gold, and excess lead, being retained in this country and not so used. Accordingly, you granted a drawback equal in amount to the duties paid on the proportion of the imported bullion represented by the 54,465 pounds of refined lead used, less the legal deduction of 1 per cent and allowing an additional 2 per cent on account of wastage. (T. D., June 12, 1899; S. 21251.)

The question submitted is whether the course of your Department in allowing the drawback based on the refined lead actually used, plus 2 per cent for wastage and deducting the statutory 1 per cent, was proper under the circumstances, or whether the drawback should equal in amount the entire duties paid upon the imported base bullion when the refined lead set aside was withdrawn.

Section 29 provides, primarily, a method for smelting or refining imported ore or crude metal in a bonded warehouse