Page images

said government are to be considered as being the same as the military operations of a belligerent. What power has Congress to direct the operations of our military forces engaged in the conduct of a war in a foreign country?

Chief Justice Chase, in the minority opinion in Er parte Milligan, said (+ Wall., 139):

Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of compuigns. That power and duty belong to the President a- Commander in Chief. Both these powers are deriveil from the Constitution, but neither is detiner by that instrument. Their extent must be determined by their nature and loy the principles of our institutions.

The power to make the necessary laws is in ('ongress; the power to execute in the President. Both powers imply many suborilinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrudle upon the proper authority of Congress, inor Congress pon the proper authority of the President.

Of necessity, a military government resorts to martial rule, or martial law. Should Congress undertake to legislate for a military gorernment and prescribe the rules and regulations of its conduct, Congress would enter upon the dangerous undertaking of giving to martial law the sanction and fixed character of legislative enactment. Under our theory of government martial rule, whether exercised by a military government or the military arm of a civil gorernment, arises from necessity, ceases with the necessity, and during its continuance its every act must be justitied hy necessity. Herein is to be found the safeguard against the arbitrary exercise of military power in time of martial rule. The military person exercising power under martial rule is liable to he called before the courts, after martial rule has ceased, and required to justify his action by showing the necessity therefor or respond in damages.

In Mitchell *. Harmony (13 How., 115, 13+) the court sav: But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.

But if Congress has the authority and shall exercise it and make martial rule the subject of legislation, then the justification of the acts of persons enforcing martial rule becomes a question of law and not of necessity. The legislative act would be a justification which could not be impeached, and the person injured would be without remedy. (Cooley's Constitutional Law, p. 148; Griffin 2. Wilcox, 21 Ind., 370; Johnson . Jones, 4+ Ill., 142; Hare's American Constitutional Law,
vol. 2, p. 968; Pomeroy's Constitutional Law, sec. 709 et seq.)

If Congress regulates the exercise of that military power over civil
rights which we call martial law, the military person who acts within
the limits of such legislation would be protected by it, for the act of
Congress would be an exercise of its political power, and the necessity
therefor or the expediency thereof could not be inquired into by the

Bennett's edition of Pomeroy's Constitutional Law lays down the
rule as follows:

This military law-or, in other words, this code of positive, enacted, statutory rules
for the government of the land and naval forces-is something very clifferent from
martial law, which, if it exists at all, is unwritten, a part and parcel of the means
and methods by which the Commander in Chief may wage effective war, something
above and beyond the jurisdiction of Congress; for that body has no direct authority
over the actual conduct of hostilities when war has been initiated. (Sec. 469, p. 385.)

The same author further says:

When actual hostilities have commencell, either through a forinal declaration
made by Congress or a belligerent attack made by a foreign government which the
President must repel by force, another branch of his function as Commander in
Chief comes into play. He wages war; Congress does not. The Legislature may, it
is true, control the course of hostilities in an indirect manner, for it must bestow all
the military means and instruments; but it can not interfere in any direct manner
with the actual belligerent operations. Wherever be the theater of the warlike
movements, whether at home or abroad, whether on land or on the sea, whether
there be an invasion or a rebellion, the President as Commander in Chief must con-
duct those movements; he possesses the sole authority and is clothed with the sole
responsibility. (Sec. 706, p. 591.)


The Philippine Archipelago was not included in the Congressional
resolution approved April 20, 1898, and the military goșernment estab-
lished in those islands was originally an instrument for promoting the
war with Spain. Although the United States has acquired the rights
of sovereignty over those islands, it has not entered into peaceable and
undisputed possession thereof. In establishing that possession it
encounters an armed insurrection, against which it is conducting mili-
tary operations and with the forces of which it is engaged in active
hostilities. The military government of the islands has been continued
and is now utilized as a means of suppressing said armed insurrection,
and therefore is authorized to exercise the rights of a belligerent.

The Secretary of War approved the views set forth in the foregoing
report, and the policy of the War Department, in respect of said mili-
tary governments, has accorded with the principles discussed and con-
clusions reached therein.

[Case No. 11-14, Division vi lnsular Affairs, War Department.)



Juwitter February 12, 1900. Printed its il War Department publication by order of the mecretary of

War. Printed as it. Senate Document two editions) logoriler of the Senate, Filty-sixth congress,
first session, Doc. So. 231. Bi oriler of the House of Representatives (Res. No. 197, Filly-sixth (ole
gre) 10,000 aditional copies were printed for the use of the House.]

SIR: In response to your request, I have the honor to report upon
the following questions of law:

1. llave the territorial boundaries of the United States been extended
to embrace the islands of the Philippine Archipelago, the island of
Guam, and the island of Porto Rico!

2. Are said islands and their inhabitants bound and benetited, privi-
leged and conditioned by the provisions of the Constitution of the
United States?

3. Tas the Congress of the United States jurisdiction to legislate for
said islands and their inhabitants:

1. Muxt such legislation conform to the constitutional requirements
regarding territory within the boundaries of the several States of the
United States and citizens clomiciled therein?

The power to extend or contract the territorial boundaries of the
United States is rested in the political branch of our (overnment.
to wit, the two llouses of Congress acting with the approval of the
Executive. It is not to be exercised by the President, either its chief
Exceutive or as Commander in Chief of the military forces. The terri-
torial boundaries of the t'nited States do not advance with its success-
ful armies nor retire before an invading foe. (Fleming et al. ». Page.
9 How. (C. S.), 603; United States r. Rice, + Wheat. (U.S.). 216.)

The United States derives the right to acquire territory from the
fact that it is a nation; to speak more detinitely, a sovereign nation.
Such a nation has an inherent right to acquire territory, similar to the
inherent right of a person to acquire property. (American Ins. ('o.
r. Canter, i Peters, 642; Mormon Church ». United States, 136 l'.s.,
1, 2.)

In fact, the territory, i. c., the stretch of country, when acquired
by conquest, treaty, or discovery, is at tirst a possession appertaining
or property belonging to the United States. The subsequent erection
therein of a political entity or government, whether State or Territo-
rial, iind the bestowal of citizenship upon the inhabitants are acts of
grace on the part of the new owner or sovereign. Such acts of yrace

are sometimes stipulated for with the former sovereign, as was the case in the instances of Louisiana and Upper California, or omitted, as in the instance of the islands lately surrendered by Spain.

The opportunity to extend the boundaries of the United States may be afforded Congress by the successful conduct of a war by the Executive as the Commander in Chief of the Army and Nary, as in the war with Mexico; or by diplomatic negotiations, as in the instance of Louisiana; or by the proffer of the constituted authorities of the territory, as of Texas and the Hawaiian Islands; or by discovery, as of the Navassa Island; or by prior and long-continued occupation, as of Oregon.

The opportunity being afforded Congress, that body acts as its discretion determines. It may accept or reject as it sees fit. It was only after several years of deliberation that Congress completed the transfer of the Floridas and utterly rejected the proffer of Santo Domingo.

During the progress of the debate in the House on the Louisiana purchase treaty Mr. G. Griswold said:

If the right of extending our territory be given by the Constitution its exercise is vested in the legislative branches of the Government. (Annals of Congress, 180:3–4,

p. 433.)

John Randolph, of Virginia, said:

If the Government of the United States possess the constitutional power to acquire territory from foreign states, the Executive, as the organ by which we communicate with such states, must be the prime agent in negotiating such an acquisition. Conceding, then, that the power of confirining this act and ammering to the I'nited States the territory thus acquired ultimately rests with Congress

(Annals of Congress, 1803–4, p. 436.)

Congress, having determined to accept the proffer of territory, may follow one of several procedures. In the instance of Texas the course pursued was to incorporate the existing State into the Union upon a footing of equality with the other States thereof. In the instance of the Hawaiian Islands the right was exercised by passing a joint resolution. In other instances the acquisition of territory was made by means of treaties duly negotiated and thereafter ratified by the Senate, approved by the Executive, an exchange of ratifications had and proclamation made, whereby the United States became bound and its national honor pledged to carry out the stipulations of the treaty. But in many respects a treaty is not self-operating.

It frequently happens that a treaty stipulates for that which can only be accomplished by Congressional enactment; in which case Congress, i. (., the Senate and House of Representatives, must exercise the powers of legislation in regard thereto before such stipulation is effective. The ratification of a treaty by the Senate creates a contract but does not crecute it. When a treaty requires legislative enactments before it can become operative it will take effect as a national ;

compact on being proclaimed, but it can not become operative as to the particular engagements until the requisite legislation has taken place. (Foster et al. %. Neilson, 2 Peters, 253, 311-315; L'nited States 7. Arredondo, 6 Peters, 691, 73+735; Op. Atty. Gen., vol. 6, p. 750; also id., p. 296.)

The treaty with Great Britain, London, 1794, negotiated by Jay during Washington's Administration, was the first concluded with a foreign power by the United States under its present form of government. After its ratification this treaty was communicated to Congress for the information and guidance of that body in preparing the legislation necessary to render the treaty effective. The House of Representatives took the position that the assent of that body was necessary to the wvlidity of a treaty. This was controverted by President Washington, and receded from by the House. (Annals, first session Fourth Congress, pp. 759-772.) Subsequently a resolution was introduced in the House that provision for rendering the treaty effective should be made by law duly enacted. This gave rise to an animated debate, but the resolution passed by a vote of 51 to 18. (Annals, first session Fourth Congress, p. 940.)

This question was also discussed in connection with the legislation for carrying into effect the treaty relating to the purchase of Louisiana. (Annals, first session Eighth Congress.)

In 1916 the Senate passed an act to carry into effect the commercial convention of 1815 with Great Britain. The act provided that so much of any existing act as inight be contrary to the provisions of the convention should cease to be of force and effect. The House passed an act, in several sections, enacting spriatim the provisions of the treaty. The Senate claimed that the treaty was operative of itself, and therefore the act should be declaratory only. The House insisted that legislation was necessary to carry it into effect. Each body refused to recede. A conference committee agreed upon a bill wbich was then enacted. (3 U. S. Stat. L., 255.) The principle upon which an agreement was reached was reported to the House as follows:

Your committee understood the committee of the Senate to admit the principle contenıleil for by the House that while some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the ques. tion how far such provision was necessary must be founded upon the peculiar character of the treaty itself. (Annals, first session Fourteenth Congress, p. 36.)

The subject was again before Congress when the bill making appropriations for the purchase of Alaska was under consideration (1, 2, 3,

4, and 5, Globe, second session Fortieth Congress), and was disposed · of hy the House accepting from a conference committee a preamble reciting that the stipulations of the treaty "that the United States shall accept of such session * can not be carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary." (15 U. S. Stat., 198.)

[ocr errors]
« PreviousContinue »