Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-06-06
THE CASE OF PRIVATE YORK
REASONS WHY 1T SHOULD GO To A
CUBAN TRIBUNAL.
Important Opinion by the Attorney
General Regarding the Status t
of the Island.

The case of the soldier whose trial for
murder the Attorney General holds should
be by Cuban tribunal is that of Private
John York, Battery I. ID Artillery. held at
Havana for killing William Fisher. a negro
tsatlster in the military service. The hom-
icide was committed on premises occupied
by the United States subsequent to the
treaty of peace with Spain. 1t was claimed
on behalf of the accused that he killed
Fisher in self-defense. and that he should
be tried by court-martial or military COM
mission. and not be turned over to the civil
courts of Cuba for trial.
In his letter to the Attorney General Sec
rotary Root said that the military authors
ties in Cuba desired an opinion from the
Attorney General for guidance in the case
of York and future similar cases. He called
attention TO the tifty-eighth article of war.
which provides that in time of war, insur-
reciion or rebellion murder shall be pun
ishable by the sentence of general court
martial when committed by persons in the
military service of the United States; also
TO the fifty ninth article of war. which pro-
videS that when any officer soldier is
accused of a capital crime, which is punish
able by the laws of the land. the command
ing niilcer OF the company or detachment
TO which the accused belongs is required,
eNceD: in time of war, upon application
duly made. to use their utmost endeavors
10 deliver him over to the civil magistrate
and 10 aid the officers of justice in bringing
him TO trial.
The Secretary of War requested an opin-
ion as 70 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 could be legally tried by a
court martial or by military commission.
or whether his trial must be by the civil
courts of Cuba.
The Attorney Generals Response,
The Attorney General answers these aues.
tons by saying:
II. In the present situation of affairs
with regard to Cuba neither a court-mar-
tial nor a military commission should try
Private York.
Article 50 of the articles of war does
not require him to be delivered to the Gu
ban courts, but it is nevertheless proper to
permit such courts to try him.
The opinion is most exhaustive one and
deals at length with the many legal propo-
sitIons involved. There are naturally many
references to the status of Cuba which are
interesting outside of their bearing on the
particular case under consideration.
He holds generally that the existence of
an insurrection in the Philippines, even IL
conceded. would not affect the trial by civil
courts of military offenses committed either
In the United States or in Cuba
Cuba Foreign Country.
The question remains, however," says
the Attorney General, whether leaving
articles IS and 50 wholly out of the oues-
ton. the act committed by Private York
can be inquired into and punished by the
courts of Cuba. AS matter of fact, the
President stands in such a relation to the
Cupan courts that no punishment can be in
hlcted in opposition to his will. Cuba as
| have sad, is a foreign country. It's
former laws, except as slightly modified, re-
main in force because they have been sane
toned by the intervening government
They are applied by the former system Of
courts and judges supervised by the Presi-
dent through governor representing him.
The former inhabitants and the American
civilians may be and tried and con-
demned by these laws and courts. We
recognized the sovereignty of the people of
cuba at a time when that sovereignty had
not yet separated itself from Spain and
manifested its will in the shape of civil and
criminal laws. At that time, against the
will of Spain. our armies forced themselves
into Cuba, and by reason of the success of
our warfare caused Spain to evacuate leav-
ing our armies in full possession The peo-
pie of Cuba as recognized by our govern
ment have never yet manifested their SOW
ereign will in the shape of civil and crimi-
nal laws. The President. holding the SOW
ereign powers of the people of Cuba, SUBJ
sequently 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 giving a spe-
cial license to be exempt from civil and
criminal process, in waver of one of his
rights, but where he should be regarded az
displaced in all of his rights by a trustee,
in whose hands they all now and were
before he had any civil and criminal pro-
cess.
"On the whole, therefore, do not think
that there need be such 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 the 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 princi-
paly by means of American soldiers does
not give Cuba a status taking its character
from martial or military law or govern
ment."