General Ludlow of May 20, 1899? If the reader will refer to that order he will notice that the privilege is not referred to as appurtenant to any office. The reason for this will be shown by the following quotation from the report of the Havana finance commission to General Ludlow, on the recommendation of which he had made the order: In the larger slaughterhouse, where only cattle are killed, the commission found that the descendants of the Count O'Reilly y de Buena Vista held a monopoly on the right of carrying the dressed beef to the butcher shops, for which they were allowed to charge 50 cents a carcass. This monopoly originated in 1706 as a Crown grant to the high constable (alguacil mayor) of the city of Havana, as a partial payment for the services which he rendered in that office, and as a sanitary measure. office has long ceased to exist.12 This It is evident that the order was based on the supposition that the concession," if ever attached to the office, had become independent of it. That the recommendation of the committee was not based on considerations of public health is shown by their statement that "the commission investigated the management of the slaughterhouses and found it businesslike and efficient" and by the fact that the city continued to employ the subcontractor to whom the concession had previously been leased. The measure was one of finance and not of police power, and the commission reported that the revenue of the city had been increased about $10,000 a year by this change alone. If, as was assumed in the order, the slaughterhouse privilege had been independent of the office, the legality of the order would have been open to serious question independently of the authority of the particular officer issuing the order. At best it would have amounted to the taking of a private franchise under the power of eminent domain with the unsatisfactory provision for compensation that the owners should get what relief they might in the courts. The privilege would have been somewhat similar to the private monopoly held to be property by the United States Supreme Court in the Slaughter House cases, subject to revocation without compensation under the police power but not to be arbitrarily taken from one person and granted to another. The objections to the validity of the order were 12 Report of the War Department, Vol. I, part 3, p. 287. sufficient to cause General Brooke, instead of confirming it, to issue a new order" in harmony" with it. It is hard to see, however, how the privilege could have become disassociated from the office. There is no evidence that the office of high sheriff had ever been formally abolished. He had ceased to be a member of the city council by the law of 1878. Possibly also the law of civil procedure had made other provision for the service of writs; while if the duties in connection with the slaughterhouse be considered as incident to the emoluments rather than as duties of the office, he had even ceased to perform any of the duties of the office. But the right to the emoluments of the office expressly remained, and while that right remained and the office was not formally abolished it is hard to say that in a legal sense the office was extinct. Counsel for the Countess O'Reilly based their contention that the privilege had become disassociated from the office on the theory that the laws of 1859 and 1878 had abolished the office and substituted a contract between the city and the holder of the old office and his successors, whereby the latter were to continue in their slaughterhouse privileges pending indemnity. If the office was not abolished the contract theory falls with it. The possibility of placing the abolition of the slaughtering monoply on stronger ground than General Ludlow's order evidently became apparent to the authorities in Cuba and General Brooke's order squarely abolished the office of high sheriff itself. The language of the order would bring it under the police power, but Judge Holt, after an examination of the facts on the trial, held that it had not been issued under the police power, and as that holding has not been questioned it will be taken that the order was an exercise of the power which the United States had to reorganize government in Cuba. It will also be taken that the order was ratified by the governmental authorities of the United States and that therefore it was the act of the United States as intervening Government. In examining the order, it will be necessary to consider whether there was a right of private property to the emoluments of the office, whether General Brooke's order abolishing the office was valid, and whether any liability for indemnification resulted therefrom. That the office or at least the emoluments of the office were private property under the Spanish law is hardly open to question. None of the provisions of the Spanish law given in Mr. Magoon's report contradict this. The royal cédula of October 15, 1787, quoted in the report, which declared that the incumbents of these offices were not authorized to dispose of the same at will as any estate of their patrimony," recognized that they constituted estates, although not as freely alienable as other estates. They could be revoked at the will of the Crown subject to indemnification, and only a half interest was subject to sale on execution. If any other authority than the provisions quoted in the report are necessary, the following extract from article 336 of the civil code of Spain which was made applicable to Cuba in 1889 is conclusive: As personal property are also considered: rents or pensions, either for life or hereditary, in favor of a person or family, * ** * also purchased public offices, contracts for public services, etc. Much other authority could be given in support of this, but it is not necessary. That the laws with regard to the office of high sheriff, and particularly the municipal aspects of the office, remained in force after the relinquishment of Spanish sovereignty has already been shown. The same is true of the laws of property. The grant held by the Countess O'Reilly, therefore, had, even after the ratification of the treaty of peace, a double aspect: on the one hand it was a grant of public office; on the other, a grant of private property. As to the power of the United States Government in Cuba, no better exposition of it can be given than that of the Attorney-General. In the passage already quoted he says: The royal prerogatives and political powers of one government do not pass in unchanged form to the new sovereign, but terminate upon the execution of a treaty of cession, or are supplanted by such laws and rules as the treaty or the legislature of the new sovereign may provide. He then goes on: Cuba, however, is now under the temporary dominion of the United States, which is exercising there, under the law of belligerent right, all the powers of municipal government. In the exercise of these powers the proper authorities of the United States may change or modify either the forms or the constituents of the municipal establishment; may, in place of the system and regulations that formerly prevailed, substitute new and different ones. The United States had the right to reconstruct the government of Cuba. This did not result from any transfer of the political powers or royal prerogatives of the Spanish Government to the United States, but from the authority arising from the fact that the United States Government was the de facto government of the island. No methods of procedure in the abolition of offices which had been binding on the Spanish authorities were therefore binding on the authorities of the United States, but in exercising this undoubted authority she was bound to recognize any rights under the treaty of peace or the law of nations that were compatible with it. She was free to abolish public offices, but if those offices were also recognized as private property under the prevailing law she was bound to indemnify the holders thereof, both by the law of nations, which protects private property on cession, and the treaty of peace, which was an expression of the international rule. General Brooke's order, therefore, was valid, but the international obligations of the United States could have been satisfied only by disassociating the slaughterhouse privilege from the office and conferring it on the holders of the old office or by the payment of its value. It is submitted that the opinion of Judge Holt, that the Countess O'Reilly had "a just claim for damages for the destruction of her property, against the United States, under its obligations assumed in its treaty with Spain, or against Cuba, under its obligations assumed in its treaty with the United States, or against both Governments," 13 is unassailable. Likewise it would seem that the claim of Guillermo Alvarez y Sanches was just. PERCY BORDWELL. 18 142 Fed. Rep., 863. HISTORY OF THE STATE DEPARTMENT III THE NEW DEPARTMENT During the interval between the inauguration of the President and the formation of the Executive Departments, the old Departments performed such executive duties as were indispensable. On July 11, 1789, for example, "by the hands of Mr. Jay," Washington sent to the Senate for ratification a consular convention with France. On July 22 the Senate Resolved, that the Secretary of Foreign Affairs under the former Congress be requested to peruse the said convention and to give his opinion how far he conceives the faith of the United States to be engaged, either by former agreed stipulations or negotiations entered into by our minister at the court of Versailles, to ratify in its present sense or form the convention now referred to the Senate. Jay reported July 25, as "The Secretary of the United States for the Department of Foreign Affairs, under the former Congress. Even as late as October 3, 1789, Diego de Gardoqui, charged with negotiations for Spain, wrote to Jay: "Observing that you continue to exercise occasionally the office of Secretary of State," he announced that he would leave Don Joseph de Viar in charge of negotiations while he should be absent. Jay replied October 7, 1789, that he would receive Mr. de Viar Circumstances having rendered it necessary that I should continue, though not officially, to superintend the Department of Foreign Affairs until relieved by a successor.2 On May 7, 1789, Jay submitted the estimates for the "Office of Foreign Affairs" to the "Commissioners of the Treasury." The "establishment of the office" was as follows: 1 American State Papers, Foreign Affairs, 1, 89. |