operation after that treaty had been ratified. California, with the assent and coöperation of the existing government, formed a constitution which was ratified by its inhabitants, and a State government was put in full operation in December, 1849, with the implied assent of the President, the officers of the existing government of California publicly and formally surrendering all their powers into the hands of the newly-constituted authorities. The constitution so formed and ratified was approved by Congress, and California was, on the 9th of September, 1850, admitted into the Union as a State. New Mexico also formed a constitution, and applied to Congress for admission; the application was not granted, but on the 9th of September, 1850, New Mexico, and that part of California not included within the limits of the new State, were organized into territories, with new territorial governments, which took the place of those organized during the war, and existing on the restoration of peace." *

Such governments, founded only in and sustained by war power, are, when peace is officially recognized, entirely within the control of Congress.

When the enemy have laid down their arms, and make no further opposition to the execution of our laws, there can exist no reason why the President should not obey and enforce the rules and statutes of Congress, regulating his own conduct and the military governments and military tribunals established by him. No reason could be offered to explain why he should not make complete and unquestioning submission to the will of the people. His refusal to do so would subject him to impeachment.

*Halleck, Int. Law, 828, 829.

There seems to be less danger to civil liberty from the use of military governments and tribunals as temporary instruments for carrying on war and of securing conquest, than from any other use of military forces.

CHAPTER VII.

It has been shown in the foregoing chapters, that the President has authority to establish military governments over enemy territory in time of war, —

1st. Because such governments are necessary to the successful prosecution of hostilities, and to secure the objects for which war has been waged.

2d. Because the Constitution, by making him Commander-in-Chief of the army, confers on him the right to use all proper means of warfare, including war-governments and war-courts; and

3d. Because the Supreme Court have recognized this authority, and have given to it the sanction of law by their decisions.

The next question will relate to the character and extent of the powers to be exercised by military govern

ments.

JURISDICTION OF MILITARY GOVERNMENTS.

To such military governments as are established by the Commander-in-Chief, in time of war, he may delegate more or less power, according to the object for which he has instituted them.

In the District of Columbia, a military governor has been appointed for the performance of certain limited duties essential to the regulation of the police of the forces stationed within the defences of Washington, the treatment of persons under arrest and in prison, and other important specific duties. In the mean time, the

sessions of the Supreme Court of the United States, and of the local courts, and of Congress, and the business of all the departments of the Government, are undisturbed.

In districts of country declared to be in rebellion, whose inhabitants are "public enemies," such governments have been commissioned with powers to administer local, municipal, civil, and criminal law, and with jurisdiction embracing all persons and all questions which may arise therein.

There is no other necessary limit to the jurisdiction of a military governor, than there is to that authority under which he received his appointment. The existence of state or municipal governments, or of military, civil, or ecclesiastical tribunals, established before the war began, in the rebellious districts, does not affect the jurisdiction of such governments or courts as may be erected therein by the war power of the United States. Since these sections of country have become hostile the inhabitants thereof being now public enemies — no authority of such enemies, executive, judicial, or military, can be recognized by the conqueror as rightful or legitimate. No legislature, no judiciary of a public enemy, can be permitted to retain or exercise any jurisdiction or control over persons or property found in that region which is within the military occupation of our army.

The enemy's courts and legislatures derive their right to ordain and enforce laws from a government at open war with our own, one which we refuse to recognize, and we might as well acknowledge the independence of the seceding States, and surrender to their army, as to subject ourselves, or to allow others, to pay obedience to their laws, their courts, or their jurisdiction.

A public enemy has no jurisdiction, either, by courts instituted by him, or by any civil, military, or judicial

officers appointed by him, to exercise authority in any locality which is held by our military power. But all persons and all subjects who are found there, are under our military control, whether that control be exercised by soldiers in the field, or by military governors, who may call to their aid military tribunals, or may even allow civil tribunals to proceed under military authority.

The only limitations to the jurisdiction of such military power over persons and property, are such as are derived from the laws of war; though in the United States further limitations may be prescribed by laws of Congress.

Hence, aliens residing in belligerent districts, noncombatants, whether neutral, friendly or hostile, persons engaged in hostility, persons belonging to the invading country, and accompanying the army, are alike within the jurisdiction of a military government, and of military courts duly established therein.