Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-09-02
END OF SPANISH WAR
Dated From Signing the
Treaty Of Peace.
THE LAW CONSTRUED
OPINION BY SOLICITOR HANNA
OF NAVY DEPARTMENT.
Disagreement With the Ruling OF the
War Experimentation It Anects
a Deserter's Case.
THE LAW CONSTRUED

Adont,nr an opinion rendered by Solicitor
Hanna. acting Judge advocate generai oA
the navy, the acting secretary OF the navy
Mr.. Darling, has made a decision that 1or
all purposes affecting the United states
navy the Spanish war ended on December
10. 1885, the date of the signing OF the
treaty Of peace. In reaching that conciu-
sion the Navy Department disagrees with
a ruling Of the War Department to the ei-
feet that the war was not closed Tor ao-
ministrative purposes in that department
until April II, 1899, the date of the ex-
change Of ratifications of the treaty.
A Deserter's Case.
The decision of Acting Secretary Darling
was made in the case of Edward A. Luckett,
a coal passer in the navy, who had applied
for a deserters release. In returning the
enlisted mans application to the bureau OF
navigation the acting secretary made the
following memorandum of his action:
'The records in this case show that
Luckett deserted from the receiving ship
Boston December %. 1S9S The treaty OF
peace between the United States and Spain
was signed December 10, 1893, but ratihca-
tions were not exchanged until April IL.
1899. Under these circumstances the ques-
ton presented is whether such desertion
can be treated as having taken place in
time Of war. If so, Luckett is amenable to
trial; otherwise, not.
LAS respects property rights and the per-
formance of undertakings between indi-
vtduals, the courts have held that the date
of a treaty is the date of it's final ratifca-
tion.' CWheaton's International Law, vol.
2, section 1921
According to the same authority. 1t Is,
however. a principle of international law
that so far as concerns the relations of the
sovereignS concerned, it operates, when ratf-
fed, from the date of its signature
AS respects the rights of either govern
ment under 1t, treaty Is considered as
concluded and binding from the date of its
signature. In this regard the exchange Of
ratification has a retroactive effect. con-
frmfng the treaty from Its date. (Haver
agt. Yaker, 75 U. s., S2)
The Constitution, in vesting In the Presi-
dent, ''by and with the advice and consent
of the Senate" the authority to make treat
les, practically constitutes him, concurrent
ly with that body. the peace-making power
so far as relates to wars with foreign ma
tons. In the instances, therefore, of such
conflicts the war status will properly be
held to end with the date of the treaty or
other agreement for the cessation OF hos
tilities, thus formally entered into with the
foreign power-a date which will ordinarily
be publicly announced by executive procla-
nation. (Winthrop's Military Law. 1886,
959.J
From the foregoing and other authorities
consulted, it appears that for certain pur-
exercise of sovereign powers. a treaty takes
effect from the date on which it is signed,
as distinguished from the date of ratifica-
ton.
1.-THE statutes to be construed in this case
are criminal-not civil-in character.
Liberal Construction.
Whether the construction of a civil
statute of Limitation is to be strict or
liberal-a question on which there is no alb
solute harmony of opinion-that of a crimi-
nal one is plainly in principle to be liberal:
because 1t is a provision in favor of the
accused, and we have seen that this sort
of provision is to receive a highly liberal
construction. And such is the doctrine-at
least the better doctrine-of the courts.
(Bishop on Statutory Criminal Law, section
258)
Applying this principle of construction to
the case in hand, 1t appears clear that de-
sertiOn occurring after the treaty Of peace
has been signed on the part of the govern
ments concerned cannot be treated as a
desertion in time Of war.
I'm this connection the clauses of the
treaty of peace between the United States
and Spain prescribing that upon the sigma
ture of the treaty all prisoners of war
should be released, etc, the partial with
drawal of troops from hostile territory and
the disbandment of a part of the volunteer
forces, all indicating the attitude of this
country toward the question of war status,
have been taken into consideration. The
bureau will accordingly treat Luckett's de-
sertion of December 25, 1893. as an offense
committed in time of peace