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

* *

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. 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 . Barreme, 2 Cranch, 170; State . 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 be 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 gov ernment 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

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. Under 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. 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):

*

*

*

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. 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.

*

*

SF

In Raymond. 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 . Harmony, 13 How., 115; Worden . Bailey, 4 Taunt., 67; Fabrigas r. Moysten, 1 Cowp., 161.

II.

THE TREATY OF PEACE BEING ENTERED INTO AND PROCLAIMED, MAY SAID MILITARY GOVERNMENTS LAWFULLY CONTINUE TO EXERCISE AUTHORITY IN CIVIL AFFAIRS ?

The military governments under consideration were established to deal with conditions resulting from successful invasion. As a result of that invasion the prior sovereignty had been expelled and the instruments and agencies of that sovereignty for the performance of the functions of civil government had been deprived of the authority theretofore exercised as the representatives of that sovereignty. Everywhere and at all times government of some kind is a necessity, and this necessity justifies and requires the continuance of the military government until there is established in said islands a civil government which comports with the interests and inclinations of the dominant power.

This question arose in the United States upon the exchange of ratifications of the treaty of peace with Mexico in 1848. Respecting the continued existence of the military governments established by the United States in New Mexico and Upper California, President Polk said:

The only government which remained was that established by the military authority during the war. Regarding this to be a de facto government, and that by the presumed consent of the inhabitants it might be continued temporarily, they were advised to conform and submit to it for the short intervening period before Congress would again assemble and could legislate upon the subject. (Message to Cong. Dec. 5, 1848; see Messages and Papers of the Presidents, vol. 4, p. 638.)

With reference to the same matter, Mr. James Buchanan, at that time Secretary of State, said:

The termination of the war left an existing government, a government de facto in full operation, and this will continue with the presumed consent of the people until Congress shall provide for them a Territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. (See Ex. Documents, 2d sess. 30th Cong., Doc. No. 1, p. 48).

The continuance of the military government over California after peace was declared was considered by the Supreme Court of the United States in Cross . Harrison (16 How., 164), and therein the court say (pp. 193, 194):

It was the government when the Territory was ceded as a conquest, and it did not case 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 ne 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 power to admit new States into the Union.

That military government may legally continue in bello cessante equally in flagrante bello was the substance of the holding in Lamar e. Brown. 92 U. S., 187, 193, et seq. (See also Leitensdorfer . Webb, 20 How., 176; Dow . Johnson, 100 U. S., 168; Texas . White, 7 Wall.. 700; The Grapeshot, 9 Wall., 132; Burke . Miltenburger, 19 Wall.. 524; Lewis v. Cocks, 23 Wall., 469; Mechanics' Bank v. Union Bank, 22 Wall., 276; Pennywitt e. Eaton, 15 Wall., 382.)

The course pursued by the Congress of the United States at the close of the civil war establishes the acceptance by Congress and this nation of the doctrine that military government may continue after the cessation of hostilities and until the purposes for which the war was entered upon, or rendered obvious by the war, are accomplished."

As regards private rights the civil war ended August 20, 1866. (McKee . Rains, 10 Wall., 22; United States v. Anderson, 9 Wall., 561; McElrath e. United States, 102 U. S., 426.)

As regards public matters there were two proclamations made by the President declaring that the war had closed-one issued April 2, 1866 (14 Stat. L., 811), embracing all the late rebellious States excepting Texas, and the other issued August 20, 1866 (14 Stat. L., 814), embracing Texas.

The Executive undertook to place the States which had engaged in the rebellion on a footing of equality with the other States of the Union. Congress antagonized this position and passed what are known as the "reconstruction acts." (14 Stat. L., 428; 15 Stat. L., 14.) These acts provided for military government possessing sovereign powers to be exercised by martial rule in the several States mentioned. For this purpose said act required:

That said rebel States shall be divided into military districts and made subject to the military authority of the United States. (14 Stat. L., 428.)

The powers given to the district commanders were as follows (sec. 3, chap. 30, 14 Stat. L., 428):

SEC. 3. And be it further enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace, and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders, or when in his judgment it may be necessary for the trial of offenders he shall have power to organize military commissions or tribunals for that purpose, and all interference under color of State authority with the exercise of military authority under this act shall be null and void.

1394-03-2