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

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.)

1

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.

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 . 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):

* *

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