a lawful government, but also a government of law, and that law is— to quote Blackstone

a rule of civil conduct prescribed by the supreme power of the state;

not

a transient, sudden order from a superior to or concerning a particular person, but something permanent, uniform, and universal.

It is also important to ascertain if the head of the military government of Porto Rico may exercise the powers of the judicial branch of government. The functions performed by the judiciary are essential to good government, and therefore must be performed in Porto Rico. The jurisdiction to exercise judicial authority in territory to which the sovereignty of the United States has attached differs from that of legislation, in that the jurisdiction to legislate is conferred upon Congress by the fact of the sovereignty attaching, while the Federal courts of the United States, being dependent upon Congress for their territorial and other jurisdiction, must await appropriate action by Congress for jurisdiction over newly acquired territory. Meanwhile the necessity for judicial action continues, and the military government is called upon to meet the necessity. Article XII of the treaty of peace (1898) clearly contemplates that the ordinary courts of the prior government will continue in existence, and such is the usage of nations. If these courts are found inadequate to deal with the domestic or internal situation arising by reason of the questions involved in the relations sustained by the inhabitants of the island, inter se, I am of opinion that the head of the military government of the island would be authorized to discharge the necessary functions, and to accomplish said purpose may designate instruments therefor, to wit, courts. As shown by the deci sion of the Supreme Court of the United States, these courts in Porto Rico could not be authorized by the President to pass upon rights possessed by the United States, nor could they be given jurisdiction in admiralty matters. Their powers must be confined to internal and domestic matters, such as are controlled by the laws regulating the personal relations which the inhabitants sustain to each other as individual members of society.

Governor Claiborne as the head of the military government in Louisiana and Major-General Jackson as military governor of East and West Florida, in time of peace, exercised the powers of the legislative and judicial branches of the government. Jackson declared enacted a large number of statutes, several of which were subsequently repealed by Congress, and as the supreme court and chancellor of the territory he heard and determined a number of cases brought before him. But it is important to remember that Congress by legislative enactment had authorized the exercise of the legislative and judicial power by the executive branch of the military government in Louisiana and Florida.

CUBA.

The conditions existing in Cuba differ materially from those prevailing in Porto Rico, as do also the powers of the military government. The sovereignty of Spain has been withdrawn from Cuba, but the sovereignty of the United States has not attached thereto, and the sovereignty, declared by Congress to be possessed by the people of the island, remains dormant. Under these conditions the military government of Cuba continues to be a substitute for sovereignty, as though the question of sovereignty were still pending the outcome of a war. It appears to the writer that under this condition the military government of Cuba may exercise such powers of sovereignty as are necessary for the successful conduct of the internal affairs of government, subject to the restraints imposed by the ideas and theories of government prevailing under the sovereignty by which it was created and the orders of the superior officials and authorities of the sovereignty by which said military government is sustained. (Regulations for United States Army, Art. VI, sec. 65.)

It must also be considered that the purposes respecting Cuba for which the war powers of the Government of the United States were called into activity and the military forces of the United States sent into that island are not yet accomplished. Congress, in the exercise of the great sovereign powers possessed by the United States as a member of the family of nations, directed the commander in chief of our military forces to employ the military branch of our Goverment (a) to compel Spain to relinquish sovereignty in Cuba; (b) to effect the pacification of the island; (c) to enable the inhabitants of Cuba to establish a stable, independent government.

These purposes were declared and the order for their accomplishment issued to the commander in chief by the adoption of the following resolution:

JOINT RESOLUTION for the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect.

Whereas the abhorrent conditions which have existed for more than three years in the island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battle ship with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and can not longer be endured, as has been set forth by the President of the United States in his message to Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action of Congress was invited: Therefore,

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

First. That the people of the island of Cuba are, and of right ought to be, free and independent.

Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.

Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.

Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.

Approved April 20, 1898.

(30th U. S. Stats., pp. 738, 739.)

Let us suppose that the Crown of Spain had seen fit to peaceably relinquish sovereignty in Cuba and turn over its subjects in the island, their personal and property rights, and the public property belonging to the Spanish Government situate in Cuba, to the care of the United States, relying upon the declaration of Congress that the United States would accomplish the pacification of the island and erect therein a stable, independent government. Would not the commander in chief of the military force charged with carrying out such declaration rightfully exercise such powers of a belligerent as were necessary to accomplish the undertaking?

Instead of pursuing the course supposed, Spain elected to go to war. Congress thereupon declared the war existing, by the passage of the following act:

AN ACT declaring that war exists between the United States of America and the Kingdom of Spain. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninetyeight, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect.

Approved April 25, 1898.

(30th U. S. Stats., p. 364.)

As directed to do by this act, the Commander in Chief of the Army and Navy proceeded to carry on the war so declared to exist, and compelled Spanish sovereignty to withdraw from Cuba and the Govern ment of Spain to sue for peace. This war was a mere incident to the accomplishment of the purposes declared by the Congressional resolution of April 20, 1898. It was an obstacle encountered by the Commander in Chief in carrying out the order given him by Congress in

said resolution. But said order was not complied with nor the work ended to which the people of the United States had devoted the Army and Navy, when Spanish sovereignty was expelled. The pacification of the island was yet to be effected. The prejudices, animosities, hatreds, strifes, resulting from many years of internal warfare, were to be allayed and the inhabitants molded into a homogeneous whole on which the foundations of a nation might rest, and thereafter a government constructed which would give to the island and its inhabitants peace, prosperity, and the largest degree of liberty consistent with the maintenance of individual rights and collective tranquillity.

As from time to time the sovereignty of Spain was forced to abandon the various sections of said island and the territory became subject to military occupation by the forces of the United States, there was installed a government of civil affairs in said sections, whereby was maintained the protection of individual and property rights for which governments are established. Eventually said government extended over the entire island.

If the doctrine is correct that a military government is a substitute, ad interim, for sovereignty, and further, that the purposes for which the military forces of the United States were sent into Cuba are uncompleted, it would seem to follow that said military government may properly exercise the rights of a belligerent without regard to the fact that the war has ended.a

Speaking of the powers exercised by the officer in command in Texas under the reconstruction acts, the supreme court of Texas say: In Texas this officer exercised powers legislative and executive, if not judicial. (Daniel r. Hutcheson, 86 Texas, 57.)

In the same case the court say:

That the State was governed by military law, even though its own laws may to some extent have been recognized and administered, must be considered an established fact.

The power of the United States Government to impose such a rule upon the State must be recognized as fully, under the facts existing, as though Texas had theretofore been an independent sovereignty, having no relation to the United States than that usually sustained by one independent nation to another.

Civil war had existed of magnitude seldom exceeded, resulting in the overthrow by force of arms of the cause the State had espoused and the occupation of her territory by a hostile army.

This occupancy was continued, and under the laws of war furnished ground for the establishment of military law. (66 Texas, p. 60.)

a In letter to Secretary of War, dated September 8, 1900, the Attorney-General says: "Cuba, therefore, rightly continues to be governed under the law of belligerent right. * * According to the law of belligerent right * the conqueror may make such new laws, rules and regulations as he sees fit." (See post., 370.)

*

*

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1394-03——————3

In another case the supreme court of Texas, in speaking of the reconstruction acts, say:

The National Legislature used its legitimate powers with moderation and magnanimity, endeavored to encourage the formation of republican governments in these States and bring the people back to a due appreciation of the law and of the liberty which is secured to the free enjoyment of every citizen under the Constitution. Texas, 570.)

(33

It is true that the authority to exercise the legislative and judicial authority was conferred upon the officers in command of the several military districts created by the reconstruction acts, by Congress; yet when the war powers of the nation are called into action, the Commander in Chief of our military forces may confer a like authority, in territory affected by military operations, upon the military commanders.

IV.

SHOULD CONGRESS BE INVOKED TO ASSUME DIRECTION AND CONTROL IN THE CONDUCT OF THE MILITARY GOVERNMENT OF CUBA ?

If the President of the United States were not the Commander in Chief of the Army and Navy, he would have little, if any, authority to participate in the government of civil affairs in Cuba. Such authority as he possesses in connection with said government belongs to and is to be exercised by the Commander in Chief of the military forces of the United States. This results from the fact that the only powers of the United States which anyone is authorized to exercise in the island of Cuba are the war powers of this nation; and the only instrument or agency of the United States authorized by Congress or by our theory of government to exercise said war powers in Cuba is the military arm or branch of the Government of the United States.

As a general proposition, it is true that wherever the sovereignty of the United States attaches the Congress may prescribe the ways and means, the manner, and methods by which such sovereignty is to be asserted.

This presents the inquiry: Ias the sovereignty of the United States attached to Cuba? Did not the resolution of Congress passed April 20, 1898, recognize and declare that the sovereignty of the island was in the people of Cuba and further that the United States disclaimed the right or intention of securing, assuming, or exercising sovereignty in Cuba? Is not Congress, by its own acts, estopped from legislating in regard to the affairs of civil government in Cuba?

The character of the military government now being maintained in Cuba has been discussed at length for the purpose of showing that it continues to derive its powers from the laws and usages of war, if not flagrante, at least nondum cessante bello. If this proposition is correct, it follows that the Commander in Chief in conducting said government. exercises the right of a belligerent. In other words, the operations of