Military governments in time of peace, whether in territories newly annexed to the United States, or in districts lately in rebellion, no longer derive their authority from the President as commander-in-chief of the army and navy, but exist by the tacit or express command of Congress. Until Congress acts, the President may maintain military governments by virtue of the fact that he is the chief executive of the nation, and sworn to take care that the laws be faithfully executed." Such governments as he may establish or continue in existence after the conclusion of war in annexed territory are, however, subject to the will of Congress either to change or abolish.

Illustrative of this principle were the military governments set up in the Southern States during and after the conclusion of the Civil War. While that war was in progress there was no question as to the power of the Executive to set up military governments in districts occupied by the federal troops. With the conclusion of that war, however, Congress at once asserted its exclusive right to determine the manner in which the States lately in secession should be ruled until their civil status should be fully restored.

The right of Congress to maintain military governments in States of the Union after the restoration of peace was partly on the ground of military necessity — that, though war had ceased, the results for which it had been waged were not yet fully secured

and partly on the ground that it lay with Congress to guarantee to the States loyal governments republican in form, and that to obtain these it was necessary for a time to furnish protection to the loyal portions of their populations.

The status of these military and "reconstruction" governments was exhaustively considered in the great case of Texas v. White," decided in 1869.

After referring to the various steps taken to put down the rebellion and establish civil rule in Texas, the court said:

"The power exercised by the President was supposed doubtless

47 7 Wall. 700; 19 L. ed. 227.

to be derived from his constitutional functions as commander-inchief; and, so long as the war continued, it cannot be denied that he might institute temporary governments in insurgent districts, occupied by the national forces, or take measures, in any State, for the restoration of state governments 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. Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guaranteed to each State a republican form of government, Congress must recessarily decide what government is established in the State, before it can determine whether it is republican or not. This is the language of the late Chief Justice speaking for this court in a case from Rhode Island (Luther v. Borden, 7 How. 1; 12 L. ed. 581) arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied, with even more propriety, to the case of a State deprived of all rightful government by revolutionary violence, though necessarily limited to cases where the rightful government is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the State."

That, until Congress acts, the military governments established by the President under his war powers may continue in existence after the conclusion of peace in territories belonging to the United States, has been several times declared by the Supreme Court.

Thus, with reference to the continuance of the military government established in California after its annexation to the United States, the court, in Cross v. Harrison, declared:

"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." 48

The principle thus laid down in Cross v. Harrison was followed by the court in the Insular Cases with reference to the continuance of the military governments in Porto Rico and the Philip pines, after their annexation by the United States.

Though military in form, the governments established or maintained by the President in time of peace in territories subject to the sovereignty of the United States may not be granted as complete a governing authority as that which they possess in time of war. The authority which may constitutionally be given to or exercised by them is determined by the purposes for which they exist. In time of war they have full power, legislative, executive, and judicial, to do anything the laws of war, as determined by international usage, permit to be done, that will strengthen themselves or weaken the enemy. War having ended, however, and the territory become domestic, the powers of the military com

48 Upon this point see Magoon, Reports on the Law of Civil Government in Territory Subject to Military Occupation, p. 17, and authorities there cited. 49 In Santiago v. Nogueras (214 U. S. 260; 29 Sup. Ct. Rep. 608; 53 L. ed. 989) the court say: "By the ratifications of the treaty of peace, Porto Rico ceased to be subject to the Crown of Spain, and became subject to the legis lative power of Congress. But the civil government of the United States cannot extend immediately and of its own force over conquered and ceded territory. Theoretically, Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but, practically, there always have been delays and always will be. Time is required for a study of the situation, and for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the Presi dent as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the Presi dent as Commander-in-Chief."

For a further discussion of this subject see Chapter XXVII.

mander become simply administrative in character, and his acts, so far as the necessities of the case permit, are limited by the general and constitutional laws of the country under whose authority he acts. He, in fact, no longer enjoys authority by virtue of belligerent right, but as an agent of the sovereign of the country for the establishment and maintenance of civil rights therein. As Magoon expresses it, he ceases to occupy the place of the suspended or expelled sovereignty, and becomes an instrument of the new sovereignty. He becomes the representative of sovereignty, instead of a substitute.50

The powers of the military government in time of peace in domestic territory being those simply of a local administrative agent of the United States, are subject to two general limitations. First, being of an administrative character, they do not include general legislative power, that is, the authority to establish laws of more than strictly local effects; and, second, such powers as are possessed, are subject to privileges and immunities created and guaranteed by the Constitution. How far these constitutional privileges apply to governments, whether military or civil, established in territories belonging to, but not "incorporated" into the United States, has been considered in an earlier chapter. In all other domestic territory, whether in a Territory or in a State lately in rebellion, these constitutional limitations apply, and the agents have, therefore, and can be endowed by Congress and the executive only with such powers as may be exercised at any time and in any place under the doctrines of "martial" as distinguished from "military law." 51 In short, their extent is measured by the necessity for their exercise.

Acting upon this principle, the Supreme Court in Raymond v. Thomas52 held void an act of a reconstruction military commander in South Carolina, by which he attempted to annul the decrce of a court of that State. In its opinion the court said: "It was an

50 Reports on the Law of Civil Government in Territory Subject to Military Occupation, p. 20.

51 See the next chapter.

62 91 U. S. 712; 23 L. ed. 434.

arbitrary stretch of authority needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law, that the exercise of military power where the rights of the citizens are concerned, shall never be pushed beyond what the exigency requires." 53

With reference to the absence of general legislative power, after war is terminated, the court in Dooley v. United States held that though, prior to the treaty of peace, the military commander might, as a belligerent right, levy customs duties on goods coming into Porto Rico from the United States, after that date he no longer had the authority.55

53 Citing Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75.

54 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. 55 In its opinion the court said:

"In their legal aspect, the duties exacted in this case were of three classes: (1) The duties prescribed by General Miles under order of July 26, 1898, which merely extended the existing regulations; (2) the tariffs of August 19, 1898, and February 1, 1899, prescribed by the President as Commander in Chief, which continued in effect until April 11, 1899, the date of the ratification of the treaty and the cession of the island to the United States; (3) from the ratification of the treaty to May 1, 1900, when the Foraker act took effect.

"There can be no doubt with respect to the first two of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace.

"Different considerations apply with respect to duties levied after the ratification of the treaty and the cession of the island to the United States. Porto Rico then ceased to be a foreign country, and, as we have just held in De Lima v. Bidwell, the right of the collector of New York to exact duties upon imports from that island ceased with the exchange of ratifications. We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress. Cross v. Harrison, 16 How. 164; 14 L. ed. 8S9. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance. By that act, Porto Rico ceased to be a foreign country, and the right to collect duties upon importations from New York to Porto Rico also ceased. The spirit as well as the letter of the tariff laws admits of duties being levied by a military commander only upon importations from foreign countries; and, while his power is necessarily despotie, this must be understood rather in an administrative than in a