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Johnson 1. Jones, 44 Ill., 142; Hare's American Constitutional Law, vol. 2, p. 968; Pomeroy's Constitutional Law, sec. 709 et seq.)
If Congress regulates the exercise of that military power over civil rights which we call martial law, the military person who acts within the limits of such legislation would be protected by it, for the act of Congress would be an exercise of its political power, and the necessity therefor or the expediency thereof could not be inquired into by the courts.
Bennett's edition of Pomeroy's Constitutional Law lays down the rule as follows:
This military law-or, in other words, this code of positive, enacted, statutory rules for the government of the land and naval forces—is something very different from martial law, which, if it exists at all, is unwritten, a part and parcel of the means and methods by which the Commander in Chief may wage effective war, something above and beyond the jurisdiction of Congress; for that body has no direct authority over the actual conduct of hostilities when war has been initiated. (Sec. 469, p. 385.)
The same author further says: When actual hostilities have commenced, either through a formal declaration made by Congress or a belligerent attack made by a foreign government which the President must repel by force, another branch of his function as Commander in Chief comes into play. He wages war; Congress does not. The Legislature may, it is true, control the course of hostilities in an indirect manner, for it must bestow all the military means and instruments; but it can not interfere in any direct manner with the actual belligerent operations. Wherever be the theater of the warlike movements, whether at home or abroad, whether on land or on the sea, whether there be an invasion or a rebellion, the President as Commander in Chief must conduct those movements; he possesses the sole authority and is clothed with the sole responsibility. (Sec. 706, p. 591.)
The Philippine Archipelago was not included in the Congressional resolution approved April 20, 1898, and the military government established in those islands was originally an instrument for promoting the war with Spain. Although the United States has acquired the rights of sovereignty over those islands, it has not entered into peaceable and undisputed possession thereof. In establishing that possession it encounters an armed insurrection, against which it is conducting military operations and with the forces of which it is engaged in active hostilities. The military government of the islands has been continued and is now utilized as a means of suppressing said armed insurrection, and therefore is authorized to exercise the rights of a belligerent.
The Secretary of War approved the views set forth in the foregoing report, and the policy of the War Department, in respect of said military governments, has accorded with the principles discussed and conclusions reached therein.
[Case No. 1444, Division of Insular Affairs, War Department.]
LEGAL STATUS OF THE TERRITORY AND INHABITANTS OF THE
ISLANDS ACQUIRED BY THE UNITED STATES DURING THE WAR WITH SPAIN, CONSIDERED WITH REFERENCE TO THE TERRITORIAL BOUNDARIES, THE CONSTITUTION, AND LAWS OF THE UNITED STATES.
[Submitted February 12, 1900. Printed as a War Department publication by order of the Secretary of War. Printed as a Senate Document (two editions) by order of the Senate, Fifty-sixth Congress, fint session, Doc. No. 234. By order of the House of Representatives (Res. No. 197, Fifty-sixth Congress) 10,000 additional copies were printed for the use of the House.]
SIR: In response to your request, I have the honor to report upon the following questions of law:
1. Have the territorial boundaries of the United States been extended to embrace the islands of the Philippine Archipelago, the island of Guam, and the island of Porto Rico?
2. Are said islands and their inhabitants bound and benefited, privileged and conditioned by the provisions of the Constitution of the United States?
3. Has the Congress of the United States jurisdiction to legislate for said islands and their inhabitants?
4. Must such legislation conform to the constitutional requirements regarding territory within the boundaries of the several States of the United States and citizens domiciled therein?
The power to extend or contract the territorial boundaries of the United States is vested in the political branch of our Government, to wit, the two Houses of Congress acting with the approval of the Executive. It is not to be exercised by the President, either as Chief Executive or as Commander in Chief of the military forces. The territorial boundaries of the United States do not advance with its successful armies nor retire before an invading foe. (Fleming et al. v. Page, 9 How. (U. S.), 603; United States v. Rice, 4 Wheat. (U. S.), 246.)
The United States derives the right to acquire territory from the fact that it is a nation; to speak more definitely, a sovereign nation. Such a nation has an inberent right to acquire territory, similar to the inherent right of a person to acquire property. (American Ins. Co. v. Canter, 1 Peters, 542; Mormon Church v. United States, 136 U. S., 1, 42.)
In fact, the territory, i. e., the stretch of country, when acquired by conquest, treaty, or discovery, is at first a possession appertaining or property belonging to the United States. The subsequent erection therein of a political entity or government, whether State or Territorial, and the bestowal of citizenship upon the inhabitants are acts of grace on the part of the new owner or sovereign. Such acts of grace are sometimes stipulated for with the former sovereign, as was the case in the instances of Louisiana and Upper California, or omitted, as in the instance of the islands lately surrendered by Spain.
The opportunity to extend the boundaries of the United States may be afforded Congress by the successful conduct of a war by the Executive as the Commander in Chief of the Army and Navy, as in the war with Mexico; or by diplomatic negotiations, as in the instance of Louisiana; or by the proffer of the constituted authorities of the territory, as of Texas and the Hawaiian Islands; or by discovery, as of the Navassa Island; or by prior and long-continued occupation, as of Oregon.
The opportunity being afforded Congress, that body acts as its discretion determines. It may accept or reject as it sees fit. It was only after several years of deliberation that Congress completed the transfer of the Floridas and utterly rejected the proffer of Santo Domingo.
During the progress of the debate in the House on the Louisiana purchase treaty Mr. G. Griswold said:
If the right of extending our territory be given by the Constitution its exercise is vested in the legislative branches of the Government. (Annals of Congress, 1803-4, p. 433.)
John Randolph, of Virginia, said:
If the Government of the United States possess the constitutional power to acquire territory from foreign states, the Executive, as the organ by which we communicate with such states, must be the prime agent in negotiating such an acquisition. Conceding, then, that the power of confirming this act and annexing to the United States the territory thus acquired ultimately rests with Congress * * * (Annals of Congress, 1803-4, p. 436.)
Congress, having determined to accept the proffer of territory, may follow one of several procedures. In the instance of Texas the course pursued was to incorporate the existing State into the Union upon a footing of equality with the other States thereof. In the instance of the Hawaiian Islands the right was exercised by passing a joint resolution. In other instances the acquisition of territory was made by means of treaties duly negotiated and thereafter ratified by the Senate, approved by the Executive, an exchange of ratifications bad and proclamation made, whereby the United States became bound and its national honor pledged to carry out the stipulations of the treaty. But in many respects a treaty is not self-operating.
It frequently happens that a treaty stipulates for that which can only be accomplished by Congressional enactment; in which case Congress, i, e., the Senate and House of Representatives, must exercise the powers of legislation in regard thereto before such stipulation is effective. The ratification of a treaty by the Senate creates a contract but does not execute it. When a treaty requires legislative enactments before it can become operative it will take effect as a national compact on being proclaimed, but it can not become operative as to the particular engagements until the requisite legislation has taken place. (Foster et al. v. Neilson, 2 Peters, 253, 314-315; United States t. Arredondo, 6 Peters, 691, 734–735; Op. Atty. Gen., vol. 6, p. 750; also id., p. 296.)
The treaty with Great Britain, London, 1794, negotiated by Jay during Washington's Administration, was the first concluded with a foreign power by the United States under its present form of government. After its ratification this treaty was communicated to Congress for the information and guidance of that body in preparing the legislation necessary to render the treaty effective. The House of Representatives took the position that the assent of that body was necessary to the validity of a treaty. This was controverted by President. Washington, and receded from by the House. (Annals, first session Fourth Congress, pp. 759-772.) Subsequently a resolution was introduced in the House that provision for rendering the treaty effective should be made by law duly enacted. This gave rise to an animated debate, but the resolution passed by a vote of 51 to 48. (Annals, first session Fourth Congress, p. 940.)
This question was also discussed in connection with the legislation for carrying into effect the treaty relating to the purchase of Louisiana. (Annals, first session Eighth Congress.)
In 1816 the Senate passed an act to carry into effect the commercial convention of 1815 with Great Britain. The act provided that so much of any existing act as might be contrary to the provisions of the convention should cease to be of force and effect. The House passed an act, in several sections, enacting seriatim the provisions of the treaty. The Senate claimed that the treaty was operative of itself, and therefore the act should be declaratory only. The House insisted that legislation was necessary to carry it into effect. Each body refused to recede. A conference committee agreed upon a bill which was then enacted. (3 U. S. Stat. L., 255.) The principle upon which an agreement was reached was reported to the House as follows:
Your committee understood the committee of the Senate to admit the principle contended for by the House that while some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question how far such provision was necessary must be founded upon the peculiar character of the treaty itself. (Annals, first session Fourteenth Congress, p. 36.)
The subject was again before Congress when the bill making appropriations for the purchase of Alaska was under consideration (1, 2, 3, 4, and 5, Globe, second session Fortieth Congress), and was disposed of by the House accepting from a conference committee a preamble reciting that the stipulations of the treaty “that the United States shall accept of such cession * * * can not be carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary.” (15 U. S. Stat., 198.)
The report of the conference committee was adopted by the Senate and House of Representatives, and thereby Congress declares that the cession of territory to the United States must be effected by legislative enactment; that is, the assent of both Houses of Congress must be secured.
At the time the Constitution was adopted by the thirteen original States many of them claimed to own unoccupied territory, in some cases entirely detached from the State itself. These claims were in some instances conflicting. Several States claimed authority over the same area. The ownership of these western lands hy individual States was distasteful to those States which did not share therein, mainly on the ground that the resources of the General Government, to which all contributed, were taxed for the protection and development of said regions, while the advantages inured to the benefit of but a few. On this ground several of the States refused to ratify the Constitution until this matter had been settled by the cession of these tracts to the General Government.
Moved by these arguments and by the consideration that the conflict of claims was pregnant with serious difficulties, Congress, by resolution of October 30, 1779, requested several of the States to forbear settling or issuing warrants or grants for said lands. This was transmitted to the different States. The several States claiming to own said lands responded to this request by transfers of the territory so claimed to the General Government. The first transfer was made by the State of New York on March 1, 1781, and the last by the State of Georgia April 24, 1802. A single instance will serve to show the course pursued. The general assembly of the State of North Carolina passed an act entitled "An act for the purpose of ceding to the United States of America certain western lands therein described.”
Pursuant to the authority created by said act Samuel Johnston and Benjamin Hawkins, at that time United States Senators from North Carolina, executed a deed of cession of said lands to the United States and presented the same to the Senate of the United States. Thereupon the Senate and House of Representatives passed “An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory.” This act recited that “a deed of cession having been executed, and in the Senate offered for acceptance to the United States of the claims of the State of North Carolina, to a district of territory therein described, which deed is in the words following: * * *
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That said deed be, and the same is hereby, accepted.
Approved, April 2, 1790. (1 U. S. Stat., chap. 6, pp. 106, 109.)
It would seem that if Congressional legislation were necessary to complete the incorporation of territory into the United States upon