the rights of individuals and communities are again entitled to recognition and protection.

The difference in the extent of power when used by a military government for the purpose of promoting actual warfare and when used in time of peace for the administration of the affairs of peace is shown by a number of decisions of the Supreme Court of the United States. In The Grapeshot (9 Wall., 129) it was held that:

When, during the late civil war, portions of the insurgent territory were occupied by the National forces it was within the constitutional authority of the President, as commander in chief, to establish therein provisional courts for the hearing and determination of all causes arising under the laws of the State or of the United States, and the provisional court for the State of Louisiana, organized under the proclamation of October 20, 1862, was therefore rightfully authorized to exercise such jurisdiction. (Syllabus.)

In the body of the opinion the court say (page 133):

We have no doubt that the provisional court of Louisiana was properly established by the President in the exercise of his constitutional authority during war.

In ex parte Milligan (4 Wall., 2) it was held that the military court which in 1864 tried Milligan for treason was without jurisdiction, for the reason that said court sought to exercise jurisdiction in the State of Indiana, which State was not the theater of actual warfare; and, as the courts of that State were open, they alone had jurisdiction. In the majority opinion the court say (p. 121):

But it is said that the jurisdiction is complete under the "laws and usages of war.” It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in States which have upheld the authority of the Government, and where the courts are open and their process unobstructed.

The court further say (p. 127):

It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one State where in another it would be mere lawless violence.

In Leitensdorfer et al. v. Webb (20 How., 176) it was held that during the war with Mexico and upon the acquisition of the Territory

of New Mexico, in 1846, the executive authority properly established a provisional government, which ordained laws and instituted a judicial system, which continued in force after the war as an existing instrumentality of an existing or de facto government.

In Ex parte Milligan (4 Wall., 2) the court were unanimous as to the want of authority in the military court which tried the case. The court were divided as to the power of Congress to confer authority upon such a tribunal. Upon the matter on which the court agreed, I quote the following from the dissenting opinion of the Chief Justice and Wayne, Swayne, and Miller, JJ. (pp. 139, 140):

The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress can not direct the conduct of campaigns, nor can the President or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenders, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature. We by no means assert that Congress can establish and apply the laws of war where no war had been declared or exists. Where peace exists the laws of peace must prevail.

In Jecker et al. v. Montgomery (13 How., 498) the facts were that during the war with Mexico the Admittance, an American vessel, was seized in a port of California April 7, 1847, by the commander of a war vessel of the United States upon suspicion of trading with the enemy. She was condemned as a lawful prize June 1, 1847, by the chaplain of one of the war vessels upon that station, who had been authorized by the President to exercise admiralty jurisdiction in cases of capture. The owners of the cargo filed a libel against the captain of the vessel of war in the admiralty court for the District of Columbia. It was held that the condemnation in California was invalid as a defense for the captors, as the prize court established in California was not authorized by the laws of the United States or the laws of nations. In the opinion the court say (p. 515):

Neither the President nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize cases, nor to administer the laws of nations.

The courts established or sanctioned in Mexico during the war by the commander of the American forces were nothing more than the agents of the military power to assist it in preserving order in the conquered territory and to protect the inhabitants in their persons and property while it was occupied by the American arms.

In Texas v. White (7 Wall., 700) it was held that authority to provide for the restoration of State governments when subverted and overthrown is derived from the obligation of the United States, under the Constitution, to guarantee to every State in the Union a republican form of government. (Art. 4, sec. 4.) So long as the war con

tinued the President might institute temporary government within insurgent districts occupied by the national forces or take provisional measures in any State for the restoration of State government faithful to the Union, employing such means and agents as were authorized by constitutional laws. But the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress. In the opinion the court say (p. 729):

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Almost immediately after the cessation of organized hostilities, and while the war yet smoldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for the State, and providing for the assembling of a convention, with a view to the reestablishment of a republican government. * A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established. Whether the action then taken was, in all respects, warranted by the Constitution it is not now necessary to determine. The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions as commander in chief; and so long as the war continued it can not be denied that he might institute temporary government within insurgent districts occupied by the national forces, or take measures in any State for the restoration of State government faithful to the Union, employing, however, in such efforts only such means and agents as were authorized by constitutional laws. But the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in Congress. (See also Luther v. Borden, 7 How., 42.)

The supremacy of military authority over the civil authority in the administration of the affairs of government is repugnant to the principles upon which stands the Government of the United States, and the theories of government cherished by the people of this nation and the race to which we belong. From the struggle which forced Magna Charta from an unwilling sovereign to that which compelled the Crown of Spain to relinquish sovereignty in Cuba, the Anglo-Saxon race has never varied from its adhesion to the principle that the military was the subjected, and not the dominant, branch of government, save only amid the clash of arms or on other occasions when the government is called upon to exercise the right of self-defense conferred by the law of self-preservation.

It would seem, therefore, that the paramount purpose of a military government, after the war ceased, should be to create conditions which would enable the civil branch to assume the ascendency in the affairs of civil government, in kind if not in degree, with the paramount purpose during the war of promoting the success of its sovereign's military operations.

There are certain obvious consequences respecting Porto Rico, resulting from the war with Spain, which it may be well to consider.

The transfer of sovereignty from Spain to the United States, whether accomplished by the conquest or the treaty of peace, requires a determination of the relation to the Government of the United States sustained by the inhabitants of the island and by the government of

the island. Neither the military government of the island nor the executive branch of the Government of the United States has jurisdiction to make this determination. As to the inhabitants the treaty provides (Art. IX):

The civil rights and political status of the native inhabitants determined by the Congress.

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The authority to determine what relation the permanent government of Porto Rico shall sustain to the Federal Government of the United States is also vested in Congress.

The history of our country is not without instances of attempts by the executive branch of our Government to anticipate the action of Congress in the determination of the relations between the Federal Government and the civil government in territory subject to military occupation; notably the instances of Upper California and New Mexico and the States which engaged in the rebellion and associated themselves as the Confederate States of America.

In these instances Congress refused to recognize the actions taken pursuant to Administrative or Executive authorization. In the instance of California the action of Congress was such that President Taylor sent a message to that body disclaiming all responsibility in the matter. (Message to 31st Cong. dated Jan. 21, 1850; Ex. Doc. No. 17, 1st sess. 31st Cong.)

In 1863 President Lincoln undertook to weaken the rebellion by the formation of loyal State governments in the rebellious districts, and for this purpose issued a proclamation December 8, 1863, inviting the people to form such governments under conditions set forth in the proclamation. (13 Stat. L., 738.) This was clearly a war measure. Pursuant to the request of President Lincoln, State governments were formed in Louisiana and Arkansas early in 1864 and in Tennessee early in 1865. To the State executives thus chosen were given the powers theretofore exercised by the military governors previously appointed by the President. Congress declined to recognize the governments so organized; and the Senators and Representatives elected thereunder were denied seats in the respective Houses.

Those were the last governments organized, while the war of the rebellion continued, in territory occupied by rebels treated as belligerents. They were the first efforts toward a reconstruction of State governments in insurgent territory. Their organization caused the first decided antagonism between the Executive and Congress growing out of the conduct of the war. The continued efforts of the succeeding Executive to secure Congressional recognition of these governments as sustaining the relation of component parts of the Union resulted in a controversy which culminated in the extraordinary proceeding of impeachment.

The views entertained by Congress as to the attempts of the Execu

tive to institute permanent governments in the territory subject at that time to military occupation were fixed among the institutions of our Government by what are known as the "reconstruction acts." By the act of March 2, 1867, said governments were denounced as illegal, subjected to military control, and declared to be provisional only. (14 Stat. L., 428.)

There exists an obvious necessity of creating and establishing a permanent civil government in Porto Rico. The authority necessarily to be exercised in accomplishing this work is vested in Congress. Porto Rico is now a conquest, or property seized as a spoil of war, and held to reimburse this nation for the loss of blood and treasure occasioned by the war, and to deter other nations from engaging in war with the United States.

The Constitution provides as follows:

The Congress shall have power * * *

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

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18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof. (Art. I, sec. 8.)

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. (Art. IV, sec. 3.)

The creation of a permanent civil government for Porto Rico calls for the exercise of legislative powers; and the Constitution provides that

All legislative powers herein granted shall be vested in Congress. (Art. I, sec. 1.) Halleck's International Law (3d ed., vol. 2, chap. 34, par. 16, p. 483)

says:

The right of the King to change the laws of a conquered territory after the war, results, according to the decisions of the English courts, from his constitutional power to make a treaty of peace, and consequently to yield up the conquest, or to retain it upon whatever terms he pleases, provided those terms are not in violation of fundamental principles. But the President of the United States can make no treaty without the concurrence of two-thirds of the Senate, and his authority over ceded conquered territory, though derived from the law of nations, is limited by the Constitution and subordinate to the laws of Congress. It, however, is well settled by the Supreme Court, that, as constitutional commander in chief, he is authorized to form a civil or military government for the conquered territory during the war; and that when such territory is ceded to the United States, as a conquest, the existing government so established does not cease as a matter of course or as a consequence of the restoration of peace; that, on the contrary, such government is rightfully continued after the peace and until Congress legislates otherwise. So long as that government continues * it represents the sovereignty of the United States, and has the legal authority to enforce and execute the laws which extend over such territory. Congress may at any time put an end to this government of the conquered territory, and organize a new one. The power of Congress over such territory is clearly exclusive and universal.

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