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United States v. Hernandez.

plaintiff in error, one Benson, was indicted in the circuit court of the United States for the district of Kansas for murder alleged to have been committed on the Fort Leavenworth military reservation within that district, and within the exclusive jurisdiction of the United States. The court reviews the two former much quoted decisions, Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995; and the Chicago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542, 29 L. ed. 270, 5 Sup. Ct. Rep. 1005, and proceeds to say: "It was held in those cases that the act [an act of the state of Kansas of 1875, ceding jurisdiction to the United States with certain reservations] was a valid cession of jurisdiction to the general government; and that, although it did not appear that any application had been made therefor by the United States, yet, as it conferred a benefit, acceptance of the cession was to be presumed. [And that, while] it was conceded that art. 1, § 8, of the Constitution was not applicable," because the general government did not purchase Ft. Leavenworth from Kansas, as it owned it before Kansas became a state, and "that while a state has no power to cede away its territory to a foreign country, yet, it can transfer jurisdiction to the general government."

In this Benson Case the court further says: "It is contended by appellant's counsel, that within the scope of those decisions [the two previous Ft. Leavenworth cases], jurisdiction passed to the general government only over such portions of the reserve as are actually used for military purposes, and that the particular part of the reserve on which the crime charged was committed, was used solely for farming purposes."

The court then proceeded to announce a doctrine that appears to be controlling in the case at bar. It used this language: "But in matters of that kind, the courts follow the action of the political department of the government. The en

United States v. Hernandez.

tire tract had been legally reserved for military purposes. United States v. Stone, 2 Wall. 525, 537, 17 L. ed. 765, 767. The character and purposes of its occupation having been officially and legally established by that branch of the government which has control over such matters, it is not open to the courts, on a question of jurisdiction, to inquire what may be the actual uses to which any portion of the reserve is temporarily put. There was therefore jurisdiction in the circuit court; and the first contention of plaintiff in error must be overruled."

As to the case at bar, not only had Spain for hundreds of years used the ground in question as a military post, but, ever since its first occupation, previous to the treaty of Paris, by the troops of the United States, down to the present time, it has been so occupied and used by the government of the United States; and certainly, its reservation, under the act of Congress, by the President as a military post, did, in our opinion, in the light of the decision last above quoted, legally establish the fact that it is so used.

It is strenuously contended by the attorney general for the island that the Foraker act, when it says, in § 1 thereof, "That the provisions of this act shall apply to the island of Porto Rico and to the adjacent islands and waters of the islands," etc., necessarily confers jurisdiction over the entire island upon the insular courts, which were created by said same act in § 33 thereof.

It might be well to point out at this place that said same § 33 also provides that the legislature of Porto Rico "shall have authority to legislate from time to time as it may see fit with respect to said courts, and any others they may deem it advisable to establish, their organization, the number of judges and officials and attachés for each, their jurisdiction, their procedure, and all other matters affecting them."

United States v. Hernandez.

During the military occupation of the island of Porto Rico, prior to the passage of the Foraker act, in addition to the ordinary insular courts that the military authorities continued or established, a United States provisional court, so-called, was established by G. O. 88, as mentioned in Secretary Taft's letter aforesaid. And § 34 of the Foraker act, which created this court, provided that it should be the successor to the said United States provisional court, and, of course, takes the jurisdiction it had, as set forth in the extract from Secretary Taft's letter above.

It therefore appears that not only is it the policy of the United States to exercise exclusive jurisdiction over its forts, magazines, arsenals, dockyards, etc., even if it does not exercise jurisdiction to that extent over large Indian reservations and forest reserves in the public-land states and territories. Therefore, every presumption, especially in a place like Porto Rico, where the general government is not only the actual proprietor, but the sovereign, should be indulged in its favor. This view gains force from the fact that it is the first territory or jurisdiction save Hawaii, not a state, where a court, such as this is, has been established.

It was contended by the attorney general for the island that, if the United States shall be held to have exclusive jurisdiction over these parcels of ground thus reserved by the President under the act of Congress, then many crimes will go unpunished, because he contends there is no law of the general government to punish many crimes which can occur in such places. It may be admitted that this is probably true, because the act of July 7, 1898 (30 Stat. at L. 717, chap. 576, § 2, U. S. Comp. Stat. 1901, p. 3652), providing "that when any offense is committed in any place, jurisdiction over which has been retained by the United States or ceded to it by a state, or which has been pur

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United States v. Hernandez.

chased with the consent of a state, for the erection of a fort, magazine, arsenal, dockyard, or other needful building or structure, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall . be liable to and receive the same punishment as the laws of the state in which such place is situated, now provide for the like offense," etc., cannot be held to be applicable; first, because it applies specially to states; and next, because it was enacted about eighteen days before General Miles landed in Porto Rico; still there are enough laws of the general government to punish the ordinary crimes that can be committed on such reservations, and, at any rate, it is the province of Congress, and not of the court, to remedy this evil. In fact, that this act would not apply has been specifically held in United States v. Paul, 6 Pet. 141, 8 L. ed. 348, because it was there held to be limited to the laws of the states in force at the time of its enactment. The statute passed upon in that case was the statute of which the one referred to is an amendment.

It is interesting to consider the unique conditions existing in this island at the time of the change of sovereignty, because such conditions must have been what induced the military government to organize the provisional court in the nature of a United States court, and must have been what induced Congress, in the Foraker act (31 Stat. at L. 77, chap. 191, § 34), to create this court, and make it the successor of the provisional court, and to give it, in that same act, the ordinary jurisdiction of a district and circuit court of the United States, and thereafter, by an amendment, under § 3 of the act of 1901 (31 Stat. at L. 953, chap. 812), to increase that jurisdiction even beyond the limits that similar courts have in the states. While this court is unique in its organization, and cannot be held, since the decision in Clinton v. Englebrecht, 13 Wall. 434, 20 L. ed.

United States v. Hernandez.

659, to be "a court of the United States" in the strict sense, as it would be were it organized under § 1, art. 3, of the Constitution, still it is manifestly intended in this island to occupy not only the position of a district and circuit court of the United States in a state, but is intended, and is given, a wider jurisdiction for purposes that seemed sufficient to Congress. This fact, coupled with the action of Congress in creating the people of Porto Rico into a body politic without citizenship, while yet owing permanent allegiance to the United States, and its further action in granting to the government of the island large numbers of buildings and large quantities of land, and authorizing the President to reserve all the forts, buildings, lands, and sites referred to, exhibits an intention on the part of Congress to reserve to itself sole and exclusive jurisdiction over the portions of the island which it occupies for its own purposes, as fully as it does in a state. This we think is the law.

It is not necessary to hold in this case, and no opinion is expressed, as to what the opinion of the court would be in a case (and the court understands there are such) where the government has not yet taken any possession and does not actually occupy particular portions of the land reserved by the President under the act of Congress of July 2d, herein referred to. We do not decide anything with reference to the service of civil process from the insular courts in a proper manner upon these reservations.

Under all the circumstances, we do not think that the mere general language used § 1 of the Foraker act, "that the provisions of this act shall apply to the island of Porto Rico and to the adjacent islands and waters of the islands,” etc., was intended by Congress to confer jurisdiction upon the insular courts over military posts and such like reservations, the jurisdiction of which in the states it takes particular pains, under the Con

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