II.

THE TREATY OF PEACE BEING ENTERED INTO AND PROCLAIMED, MAY SAID MILITARY GOVERNMENTS LAWFULLY CONTINUE TO EXERCISE AUTHORITY IN CIVIL AFFAIRS?

The military governments under consideration were established to deal with conditions resulting from successful invasion. As a result of that invasion the prior sovereignty had been expelled and the instruments and agencies of that sovereignty for the performance of the functions of civil government had been deprived of the authority theretofore exercised as the representatives of that sovereignty. Everywhere and at all times government of some kind is a necessity, and this necessity justifies and requires the continuance of the military government until there is established in said islands a civil government which comports with the interests and inclinations of the dominant power.

This question arose in the United States upon the exchange of ratifications of the treaty of peace with Mexico in 1848. Respecting the continued existence of the military governments established by the United States in New Mexico and Upper California, President Polk said:

The only government which remained was that established by the military authority during the war. Regarding this to be a de facto government, and that by the presumed consent of the inhabitants it might be continued temporarily, they were advised to conform and submit to it for the short intervening period before Congress would again assemble and could legislate upon the subject. (Message to Cong. Dec. 5, 1848; see Messages and Papers of the Presidents, vol. 4, p. 638).

With reference to the same matter, Mr. James Buchanan, at that time Secretary of State, said:

The termination of the war left an existing government, a government de facto in full operation, and this will continue with the presumed consent of the people until Congress shall provide for them a Territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing gov ernment when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. (See Ex. Documents, 2d sess. 30th Cong., Doc. No. 1, p. 48).

The continuance of the military government over California after peace was declared was considered by the Supreme Court of the United States in Cross v. Harrison (16 How., 164), and therein the court say (pp. 193, 194):

It was the government when the Territory was ceded as a conquest, and it did not cease as a matter of course or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is that it was

meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the Government; and the more so, as it was continued until the people of the Territory met in convention to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union.

That military government may legally continue in bello cessante equally in flagrante bello was the substance of the holding in Lamar v. Brown, 92 U. S., 187, 193, et seq. (See also Leitensdorfer v. Webb, 20 How.. 176; Dow v. Johnson, 100 U. S., 168; Texas . White, 7 Wall., 700; The Grapeshot, 9 Wall., 132; Burke . Miltenburger, 19 Wall., 524; Lewis . Cocks, 23 Wall., 469; Mechanics' Bank 2. Union Bank, 22 Wall., 276; Pennywitt v. Eaton, 15 Wall., 382.)

The course pursued by the Congress of the United States at the close of the civil war establishes the acceptance by Congress and this nation of the doctrine that military government may continue after the cessation of hostilities and until the purposes for which the war was entered upon, or rendered obvious by the war, are accomplished.

As regards private rights the civil war ended August 20, 1866. (McKee v. Rains, 10 Wall., 22; United States v. Anderson, 9 Wall., 561; McElrath v. United States, 102 U. S., 426.)

As regards public matters there were two proclamations made by the President declaring that the war had closed-one issued April 2, 1866 (14 Stat. L., 811), embracing all the late rebellious States excepting Texas, and the other issued August 20, 1866 (14 Stat. L., 814), embracing Texas.

The Executive undertook to place the States which had engaged in the rebellion on a footing of equality with the other States of the Union. Congress antagonized this position and passed what are known as the "reconstruction acts." (14 Stat. L., 428; 15 Stat. L., 14.) These acts provided for military government possessing sovereign powers to be exercised by martial rule in the several States mentioned. For this purpose said act required:

That said rebel States shall be divided into military districts and made subject to the military authority of the United States. (14 Stat. L., 428.)

The powers given to the district commanders were as follows (sec. 3, chap. 30, 14 Stat. L., 428):

SEC. 3. And be it further enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace, and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or when in his judgment it may be necessary for the trial of offenders he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority with the exercise of military authority under this act shall be null and void.

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The reason for such government was declared by the preamble as follows:

Whereas no legal State governments or adequate protection for life or property exist in the rebel States of [naming them]; and whereas it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be established: Therefore.

The Supreme Court refused to interfere with the enforcement of said reconstruction acts or the exercise of the authority conferred thereby. (State of Mississippi v. Johnson, 4 Wall., 475; State of Georgia v. Stanton, 6 Wall., 50; Handlin v. Wickliffe, 12 Wall., 174; White v. Hart, 13 Wall., 646.)

The court held that this legislation was political in character, and therefore outside the jurisdiction of the judicial department; that in creating such legislation Congress exercised certain of the sovereign powers of the nation which exist, but are reserved to the people by the Constitution. No one ever claimed that the government created by this legislation was that provided for by the Constitution of the United States for the States of the Union. It found its legal justification in being an exercise of the inherent right of national sovereignty to adequately deal with a national emergency.

The situation then existing is thus described by Birkhimer:

But it was also true that the civil governments in the late insurrectionary States were inimical to the Union; that society there was in a dangerously disordered condition; that deep-seated enmity was at this period entertained by the leading people toward important principles of governmental policy which those who had saved the Union had resolved should be incorporated into the Constitution. (Fourteenth amendment.) Technically it might be termed "time of peace," but in reality it was far different, as that phrase is generally understood. (Military Government and Martial Law, 1 ed., p. 388.)

In Texas the military government installed under the reconstruction acts continued until April 16, 1870. Prior to the passage of the reconstruction acts in 1867 the people of Texas called a constitutional convention, which convened on February 7, 1866, and so amended the constitution of the State as to meet the changed condition of affairs brought about by the result of the war and the fourteenth amendment to the Constitution of the United States. These amendments were ratified by the people. All officers provided for by the State constitution were elected and entered upon the discharge of their respective duties. The legislature met and passed laws and the State government was again administered by officers holding under the terms of the constitution; all the courts were held by judges elected as the constitution prescribed, and county and municipal officers selected in the same manner entered upon the discharge of their duties. But the reconstruction act of March 2, 1867, declared that no legal State gov ernment existed in Texas, and provided further for the military government of said State. The officers elected under the constitution

were removed from office and others appointed in their places. Among them the governor of the State, elected under the constitution as amended in 1866, was displaced and a provisional governor was appointed and held the office until September 30, 1869, when he resigned, and from that time until January 8, 1870, the executive duties were performed by an adjutant of the general in command, placed in charge of civil affairs. On April 16, 1870, by General Orders, No. 74, the military commander declared the State had resumed practical relations to the General Government, and all the authority conferred upon him by the reconstruction laws was remitted to the civil authorities.

In discussing this phase of military government, Pomeroy says:

"Military government" is the authority by which a commander governs a conquered district when the local institutions have been overthrown and the local rulers displaced, and before Congress has had an opportunity to act under its power to dispose of captures or to govern territories. This authority in fact belongs to the President, and it assumes the war to be still raging and the final status of the conquered province to be undetermined, so that the apparent exercise of civil functions is really a measure of hostility. "Martial law" is something very different. It acts, if at all, within the limits of the country, against civilians who have not openly enrolled themselves as belligerents among the forces of an invading or a rebellious enemy. (Pomeroy's Constitutional Law (Bennett's Third Ed.), par. 712, p. 595.)

Birkhimer says (p. 290):

The experience of the United States Government but adds to the evidence derivable almost universally from the history of other nations that military government ceases at the pleasure of him who instituted it, upon such conditions as he elects to impose, and that its termination is not in point of time coincident, either necessarily or generally, with the cessation of hostilities between the contending belligerents.

It therefore appears that the continuance of military government in said islands after the exchange of ratifications of the treaty of peace with Spain is in harmony with the theory heretofore accepted and approved by the executive, legislative, and judicial branches of the Government of the United States.

III.

THE EFFECT OF THE TREATY OF PEACE UPON THE CHARACTER AND EXTENT OF THE AUTHORITY OF THE MILITARY GOVERNMENT IN PORTO RICO, CUBA, AND THE PHILIPPINE ARCHIPELAGO.

The conditions existing in Porto Rico, Cuba, and the Philippine Archipelago are not identical, and therefore the several military governments thereof must be separately considered.

PORTO RICO.

Upon the ratifications of the treaty of peace being exchanged, the sovereignty and jurisdiction of the United States permanently attached to Porto Rico and the island became territory appertaining to the

United States. The United States is in undisputed possession of the island, and therefore the military government of Porto Rico has ceased to occupy the place of the suspended or expelled sovereignty of Spain and has become an instrument of the new sovereignty. It has become the representative of sovereignty instead of a substitute. Since hostilities have ceased in Porto Rico, it follows that the military government is not authorized to adopt measures seeking to promote the success of military operations nor to justify its action on that ground. As to Porto Rico the war has ended and the purposes of the military operations therein have been accomplished, that is to say, a complete conquest has been effected and a peace secured. Therefore in that island the United States is no longer a belligerent, and it follows that the existing government therein no longer exercises its powers by virtue of belligerent right.

Regarding the provisional government maintained in California and New Mexico after the treaty of peace with Mexico, President Polk said:

Upon the exchange of ratifications of the treaty of peace with Mexico, the temporary governments which had been established over New Mexico and California * * * by virtue of the rights of war ceased to derive any obligatory force from that source of authority. (Message to Congress, December 5, 1848; see Ex. Doc. No. 1, p. 12, Thirtieth Congress, second session.)

James Buchanan, then the Secretary of State said:

By the conclusion of the treaty of peace the military government which was established over them, under the laws of war as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. (Ibid., p. 48.)

Halleck says:

There can be no doubt that when the war ceases the inhabitants of the ceded territory cease to be governed by the code of war. Although the government of military occupation may continue, the rules of its authority are essentially changed. It no longer administers the laws of war, but those of peace. The governed are no longer subject to the severity of the code military, but are remitted to their rights, privileges, and immunities under the code civil. (Halleck's Int. Law, 3d ed., vol. 2, chap. 34, par. 18, p. 487.)

In time of war the military dominates all other branches of the Government. During the time and in the locality of military operations of actual war the laws of peace are suspended and the most cherished rights of individuals and communities may be ignored or obliterated should the exigencies of the military situation actually or apparently require it. Such is the right of a nation in the presence of the perils of war. Such is the power conceded a belligerent by the established usage of nations.

A treaty of peace being entered into, the perils of war pass away as does also the right of the military to exercise the undefinable, illimitable power of belligerency; the laws of peace are again operative; and