REPORTS ON THE LAW OF CIVIL GOVERNMENT IN TERRITORY SUBJECT TO MILITARY OCCUPATION BY THE MILITARY FORCES OF THE UNITED STATES.

[Case No. 1102, Division of Insular Affairs. Submitted October 19, 1899.]

THE POWERS, FUNCTIONS, AND DUTIES OF THE MILITARY GOVERNMENTS MAINTAINED BY THE UNITED STATES IN THE ISLANDS LATELY CEDED AND RELINQUISHED BY THE GOVERNMENT OF SPAIN."

I.

Military governments, resulting from military occupation, are intended to perform two services: (1) Promote the military operations of the occupying army; (2) preserve the safety of society. (Ex parte Milligan, 4 Wall., 127.)

The governments now being maintained by the United States in said islands were instituted during a war, by the exercise of an undoubted belligerent right in discharge of a national obligation imposed by international law, namely, an invader having overthrown the existing government must provide another one. The Brussels Project of an International Declaration concerning the Laws and Customs of War, recites:

ART. 2. The authority of the legal power being suspended, and having actually passed into the hands of the occupier, he shall take every step in his power to reestablish and secure, as far as possible, public safety and social order.

(See also sec. 43, Recommendations of Institute of International Law, Oxford Session, 1880.)

Lieber's Instructions for the Government of Armies of the United States in the Field (G. O. 100, A. G. O., 1863) provides as follows:

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1. A place, district or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army. Martial law is the immediate and direct effect and consequence of occupation or conquest. 2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief, or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same.

"See General Order 101, A. G. O., series 1898.

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4. Martial law is simply military authority exercised in accordance with the laws and usages of war. * *

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6. All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government-legislative, executive, or administrative-whether of a general, provincial, or local character, cease under martial law, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader.

14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

That the military authorities of the United States are not prohibited by the Constitution or institutions of our Government from maintaining governments under requisite conditions, has been judicially determined by our Supreme Court. (Cross et al. v. Harrison, 16 How., 164, 193; Leitensdorfer v. Webb, 20 How., 176, 177.)

As to the government established in California, the court say:

The government, of which Colonel Mason was the executive, has its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. How., 193.)

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As to the government instituted in New Mexico, the court say: Upon the acquisition, in the year 1846, by the arms of the United States of the Territory of New Mexico, the civil government of this Territory having been overthrown, the officer, General Kearney, holding possession for the United States in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained, under the sanction and authority of the United States, a provisional government for the acquired country. (20 How., 176, 177.)

Military government is the dominion exercised by a belligerent power over invaded territory and the inhabitants thereof. Such a government performs its functions and discharges its obligations by what is known as martial law.

Chief Justice Chase describes military government as a form of military jurisdiction

to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents. (Ex parte Milligan, 4 Wall., 141.)

In this case Chief Justice Chase defined martial law as an authority called into action, when public necessity required it, in a locality or district, not of an enemy's country, but of the United States, and "maintaining adhesion to the National Government." (4 Wall., 142.)

It will be seen that a military government takes the place of a suspended or destroyed sovereignty, while martial law or, more properly, martial rule, takes the place of certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty.

The occasion of military government is the expulsion of the sovereignty theretofore existing, which is usually accomplished by a successful military invasion.

The occasion of martial rule is simply public exigency which may arise in time of war or peace.

A military government, since it takes the place of a deposed sovereignty, of necessity continues until a permanent sovereignty is again established in the territory. Martial rule ceases when the district is sufficiently tranquil to permit the ordinary agencies of government to cope with existing conditions.

The power of such government, in time of war, is a large and extraordinary one, being subject only to such conditions and restrictions as the laws of war impose upon it.

As was said by the United States Supreme Court, such governing authority

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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. * 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. (New Orleans v. Steamship Co., 20 Wall., 394.)

Commenting on this view of the law, the Texas supreme court say: This language, strong as it may seem, asserts a rule of international law, recognized as applicable during a state of war. (Daniel v. Hutcheson, 86 Texas, 61.)

That the power is measured and restricted only by the laws of war, see Sargeant on the Const., 330; 1 Kent's Com., 306; Flanders Expos. of Const., 169, 184; Little v. Barreme, 2 Cranch, 170; State v. Fairfield, 13 Ohio St., 377.

In ancient times governments of this character were administered according to the accepted doctrine, "The will of the conqueror is the law of the conquered." This doctrine is still recognized as a law of nations, but has been so modified by modern usage as to deprive it of its terrors.

When an army engaged in actual warfare drives out or destroys the former sovereignty of a country, the laws created by that sovereignty and dependent upon that sovereignty pass away with it. There also passes away the obligation of the inhabitants, theretofore owing allegiance to the deposed sovereignty, to obey the will of said sovereigni. e., its laws.

Thereupon the necessity exists out of which arises martial rule. Martial rule, as exercised in any country by the commander of an invading army, is an element of the jus belli. It is incidental to a state of war and appertains to the law of nations. The commander of the occupying army rules the territory within his military jurisdiction, as necessity demands and prudence dictates, restrained by international law and obligations, the usages and laws of war, and the orders of his

superior officers of the government he serves and represents. (Hansard's Parliamentary Debates, 3d series, vol. 95, p. 80; Op. Att'y Gen., vol. 8, p. 369; Regulations for U. S. Army, Art. VI, sec. 65.) The inhabitants are not released from the various obligations they owe each other and to the community. These are quite independent of their allegiance to the deposed sovereignty. These obligations must be discharged, and therefore the municipal laws of the country-the laws regulating the relations between individuals—are continued in force. Originally this was considered an act of grace on the part of the conqueror; but the practice is now so well established among civilized nations as to make it one of the "laws and usages of war."

Although said laws continue in force, the authority of the officials who administered the laws under the previous sovereignty ceases, as of course, upon the assumption of control by the military forces of the invader. The further exercise of power by said officials is to he considered as by and with the authority of the military force maintaining the occupation.

Lieber's Instructions for the Government of Armies of the United States in the Field (sec. 1, par. 6), lays down the rule as follows:

All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law (military government) unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government—legislative, executive, or administrative—whether of a general, provincial, or local character, cease under martial law, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader.

Military government-that is, the administration of the affairs of civil government exercised by a belligerent in territory of an enemy occupied by him-is not considered in modern times as doing away with all laws and substituting therefor the will of a military commander. Such government is considered as a new means or instrument for the execution of such laws, natural and enacted, international and domestic, * as are necessary to preserve the peace and order of the community, protect rights, and promote the war to which it is an incident.

Under any government, if for any reason the usual and ordinary means of enforcing the laws and accomplishing the purposes of government are found inadequate to meet an existing emergency, resort may be had to martial rule in order to enforce the law and accomplish the purposes of government. Martial rule is intended to effectuate some law, not to abrogate all law. To illustrate: Private property may be taken or injured for public purposes. Ordinarily this is accomplished by the slow process of condemnation. Under martial rule the process is accelerated. If the necessity apparently exists, as in the presence of a conflagration, a building may be summarily destroyed or trespass committed without liability. Again, a man's life may be

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taken if he is guilty of treason. Under the ordinary administration of the law the most notoriously guilty individual, captured red-handed, must be proceeded against by the slow process of the court. martial rule he is incontinently executed. It is the procedure which is dispensed with, not the law.

While a military government continues as an instrument of warfare, used to promote the objects of the invasion by weakening the enemy or strengthening the invader, its powers are practically boundless.

In New Orleans v. Steamship Company (20 Wall., 387, 394) the court say:

In such cases the conquering power has a right to displace the preexisting authority and to assume to such an extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. 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 exercised in such cases, save those which are found in the laws and usages of war.

But when the war is ended and the military government ceases to be an instrument to promote actual warfare and devotes itself simply to civil affairs instead of military affairs, limitations at once attach. The reason for this rule is derived from the established doctrine that military government or martial rule is the creature of necessity, and its acts must be justified by necessity-real or apparent. (See The Justification of Martial Law, by G. Norman Lieber, Judge-AdvocateGeneral, U. S. A., War Dept. Doc. No. 79.)

In Ex Parte Milligan (4 Wall., p. 2), the majority of the court held as follows (127):

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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, 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; * * * And so in the case of a foreign invasion martial rule may become a necessity in one state when, in another, it would be mere lawless violence.

In Raymond v. Thomas (91 U. S., 712) the court held void an order of General Canby issued May 28, 1868, whereby he undertook to annul the decree of a court of chancery in South Carolina. The court say:

It was an 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. Citing Mitchell r. Harmony, 13 How., 115; Worden v. Bailey, 4 Taunt., 67; Fabrigas v. Moysten, 1 Cowp., 161.