§ 167. Presidential Governments.

In 1846, during the war with Mexico, the United States military forces took possession of Upper California. In 1847 the President as Commander-in-Chief of the army and navy authorized the establishment, by the military commanders, of a civil and military government for the conquered territory. This was done. In Cross v. Harrison" the question was raised whether this government might lawfully continue its existence after the date of the treaty of peace by which the territory was formally annexed to the United States, and until Congress had legislated for its government. In deciding this in the affirmative, the court said: "The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It has been instituted during the war by the command of the President of the United States. It was the government when the Territory was ceded as a conpleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war. These principles have the sanction of all publicists who have considered the subject. They have been repeatedly recognized and applied by this court. Cross v. Harrison, 16 How. 164; 14 L. ed. 889; Leitensdorfer v. Webb, 20 How. 176; 15 L. ed. 891; The Grapeshot, 9 Wall. 129; 19 L. ed. 651. In the case last cited the President had, by Proclamation, established in New Orleans a Provisional Court for the State of Louisiana, and defined its jurisdiction. This court held the Proclamation a rightful exercise of the power of the Executive, the court valid, and its decrees binding upon the parties brought before it. In such cases the laws of war take the place of the Constitution and laws of the United States as applied in time of peace."

11 16 How. 164; 14 L. ed. 889.

quest, 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. And the more so as it was continued until the people of the territory met in convention to form a state government, which was subsequently recognized by Congress under its powers to admit new States into the Union."

The government maintained by the President over a conquered territory being belligerent, is, as is stated in the paragraph quoted above, absolute in character, according to the general doctrines of international law regarding military occupation: "It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war.

" 12

12 When, after the capitulation of the Spanish forces in Santiago, Cuba, the military forces of the United States took possession of the eastern part of the province, the President instructed the military commander, inter alia, as follows: "The first effect of the military occupation of the enemy's territory is the severance of the former political relations of the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their rights and relations. All persons who either by active aid or by honest submission, co-operate with the United States to give effect to this beneficent purpose will receive the reward of its support and protection. Our occupation should be as free from severity as possible. Though the powers of the military occupant are absolute and supreme and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of persons and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The

We have seen from the preceding cases that the power of the President, as Commander-in-Chief of the army and navy, is practically absolute over conquered territory. And also, that this power persists after the formal annexation of the territory in question to the United States and until Congress legislates for its judges and other officials connected with the administration of justice may, if they accept the supremacy of the United States, continue to administer the ordinary law of the land, as between man and man, under the supervision of the American commander-in-chief. The native constabulary will, so far as may be practicable, be preserved. The freedom of the people to pursue their accustomed occupation will be abridged only when it may be necessary to do So. While the rule of conduct of the American commander-in-chief will be such as has just been defined, it will be his duty to adopt measures of a different kind if, unfortunately, the course of the people should render such measures indispensable to the maintenance of law and order. He will then possess the power to replace or expel the native officials in part or altogether; to substitute new courts of his own constitution for those that now exist, or to create such new or supplementary tribunals as may be necessary. In the exercise of these high powers the commander must be guided by his judgment and his experience and a high sense of justice. One of the most important and most practical problems with which it will be necessary to deal is that of the treatment of property and the collection and administration of the revenues. It is conceded that all public funds and securities belonging to the government of the country in its own right, and all arms and supplies and other movable property of such government, may be seized by the military occupant and converted to his own use. The real property of the State he may hold and administer, at the time enjoying the revenues thereof, but he is not to destroy it save in the case of military necessity. All public means of transportation, such as telegraph lines, cables, railways, and boats, belonging to the State may be appropriated to his use, but, unless in case of military necessity, they are not to be destroyed. All churches and buildings devoted to religious worship and to the arts and sciences, all schoolhouses, are, so far as possible, to be protected, and all destruction or intentional defacement of such places, of historical monuments or archives, or works of science or art is prohibited, save when required by urgent military necessity. Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as telegraph lines or cables, railways and boats, may, although they belong to private individuals or corporations, be seized by the military occupant, but unless destroyed under military necessity are not to be retained. While it is held to be the right of the conqueror to levy contributions upon the enemy in their seaports, towns, or provinces which may be in his military possession by conquest, and to apply the proceeds to defray the expense of the war, this right is to be exercised within such limitations that it may not savor of confiscation. As the result of military occupation

government. It would appear, however, that during this latter period, the President's power is not so absolute as in the period prior to annexation. Absolute power, according to American constitutional doctrines, is only justified by military necessity, and, therefore, with the cessation of hostilities and the annexation of the territory by which it is brought within the general province of the American doctrine, there spring up certain limitations upon the President's governing power. The extent of these limitations will be discussed in a later chapter dealing with martial and military law, and with the doctrines laid down by the Supreme Court in the "Insular Cases" determining the political status and the civil rights of the inhabitants of the islands acquired in 1898 from Spain.

13

the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the galaries of the judges and the police, and for the payment of the expenses of the army. Private property taken for the use of the army is to be paid for, when possible, in cash at a fair valuation, and when payment in cash is not possible receipts are to be given. All ports and places in Cuba which may be in the actual possession of our land and naval forces will be opened to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the prescribed rates of duty which may be in force at the time of the importation." Moore Digest of Int. Law, VII, § 1143. The order was issued July 18, 1898.

13 See, for example, the language of the court in Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

CHAPTER XXVIII.

THE ANNEXATION OF TERRITORY BY TREATY.

§ 168. Congressional Action not Needed to Complete Annexation of Territory Acquired by Treaty.

That, under the treaty-making power provided in the Constitu tion, a foreign country may be brought under the sovereignty of the United States, and thus, from the viewpoint of international law, become a part of it, is, as we have seen, beyond question. In De Lima v. Bidwell, one of the "Insular Cases," decided in .1901, was urged the point, however, that, before such an annexed territory can become "domestic" territory and as such be brought, ipso facto, under the operation of the federal laws generally, an act of Congress to that effect is necessary.

Prior to this De Lima case, this question had been several times raised, especially with reference to the immediate applicability of the revenue laws of the United States to annexed territories, but had never been thoroughly discussed, nor had administrative practice always been harmonious with judicial pronouncements, or these judicial pronouncements harmonious with one another.

In Fleming v. Page, decided in 1850, it was held, as we have seen, that conquest and military occupation of a foreign district did not, ipso facto, make that district a part of the United States, and, therefore, that duties were properly levied upon goods imported therefrom into the United States under the act of Congress imposing duties upon imports from foreign countries. Taney, however, in his opinion went further than the facts of the case necessitated, and adverted to the circumstance that the administrative department of the government had, as a rule, continued to treat territory acquired by treaty as foreign until Congress by legislation had extended over it its revenue laws.3

1182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041. 29 How. 603; 13 L. ed. 276.

3 He said: "This construction of the revenue laws has been uniformly given by the administrative department of the government in every case that