The times. [volume] (Washington [D.C.]) 1897-1901, 1900-06-06
CDBA'S STATUS DEFINED
The Attorney General Refers 10 1t
as a Foreign Country.
An Opinion Regarding the Trial of n
soldier for Murder by the Civil
Courts of the 1slnnd-Its Former
Laws Us Modified Now Sanctioned
by nm Intervening Government.

l
Laws rs MODIFIED Now Sanctioned
by nm Intervening Government
Attorney General Griggs has transmit
| ted to the War Department an opinion In
| the case of Private John York. Battery
| /, Second Artillery. who is held in Ha,
vana, Cuba, awaiting trial by the civil
courts of Cuba, for the killing of William
Fisher. in which the attitude Of the United
States to Cuba is discussed. The question
| raised by Secretary Root in his letter to
| the Attorney General was whether York
| can be legally tried by court-martial or
by military commission or whether his
trial must be by the civil courts Of Cuba. y
In concluding his opinion the Attorney
General says:
In the present situation Of affairs with
regard to Cuba, neither court-martial
nor military commission should try Pri-
vate York. Article SO Of the Articles Of
War does not require him to be delivered
to the Cuban courts, but it is neverthe-
less proper to permit such courts to try
him."
Attention is called in Secretary Roots
letter to the fifty-eighth article Of war,
which provides that in time of war. in
surrection, or rebellion, murder shall be
punishable by the sentence of general
court martial when committed by persons
in the military service of the United
States" And to the fifty-ninth article of
war. which provids that the military au-
thorities are required to use their best
endeavors to turn over to the civil authori-
ties any soldier accused of capital crime
or any offence which is punishable by the
laws of the land except in time Of war.
The opinion says:
without undertaking to characterize
precisely the situation Of affairs in the
Philippines it seems to me that If We
should concede the existence there of an
insurrection or rebellion against the Gov
eminent it would be neither within the
real intent of Congress nor consistent
with the practice concerning martial
law to say that a civil offence committed
by a soldier. part of a body of troops
stationed in Maryland or Pennsylvania for
service there, in no way connected with
what was going on in the Philippines.
should be punished as prescribed in this
article. II article IS does not at present
apply in Maryland or Pennsylvania it
seems to me that still less can it apply in
Cuba. foreign country. The question re-
mains whether. leaving articles IS and 80
wholly out of the question. the act COM
mitted by Private York can be enquired
into and punished by the courts of Cuba"
las a matter OF fact" says Mr. Criggs,
''the President stands in such a relation
to the Cuban courts that no punishment
can be inflicted in opposition to his will.
Cuba. as have said. is foreign country.
Its former laws, except as slightly modi-
fed. remain in force because they have
been sanctioned by the intervening Gov
erEment. They are applied by the former
system Of ocurty and judges. supervised
by the President through governor rep
resenting him. The former inhabitant and
the American civilians may be and are
tried and condemned by those laws and
courts Only one reason occurs to me
why Private York cannot be tried by
them. and the soundness of that reason /
shall proceed to examine"
The Attorney General tfeE explains that
the question is whether the granting of a
free passage OF an army does not imply
waiver of all Jurisdiction over the troops
and permits the foreign general to use
that discipline and to inflict those punish
ments the government of his army may
require. In answer to this the opinion
says:
I'VE recognized the sovereignty of the
people of Cuba at time when that sover-
eighty had not yet separated itself from
Spain and manifested its will In the shape
of civil and criminal laws. The people
Of Cuba. as recognized by cur Government.
have never yet manifested their sovereign
will in the shape of civil and criminal
laws. The President. holding the sovereign
powers of the people 81 Cuba, 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 sovereignty of Cuba should be
regarded as giving special license to be
exempt from civil and Grimm nal process. 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 trustee is not
supposed to exercise any of his trust pow
ers in comforting favors upon himself"
1t is remarked that it is not to be sup
posed that the President cannot exempt
the Army from the Cuban laws, but he
takes it for granted that he has made no
exceptions in the law. Moreover. the sup
posed exemption of the Army even if it
were granted by Cuba, would be granted
the United States as nation for our
national purposes; it would carry with it
no individual right of Private York. Ac
cordingly the United States would be free
to waive it Or insist upon it without con-
sulting York. That the President is ex-
ercising the governmental powers. civil
and military OF the people of Cuba, rrinci-
pally by means of American soldiers. does
not give Cuba status taking its character
from martial or military law or govern
ment."