the ordinary courts are closed by the exigencies of the war, to appoint a special court or judge for the determination of cases not properly cognizable by the ordinary military tribunals. In the civil war such courts were not unfrequently constituted and were commonly designated provost courts. II, 14, February, 1863; XV, 519, July, 1865. Such courts had no jurisdiction of purely military offences (¿. e. offences which the Articles of War make cognizable by court-martial), and were therefore not properly authorized to impose forfeitures of pay or other strictly military punishments upon officers or soldiers of the army. VI, 635, December, 1864; VIII, 638, X, 39, 560, and XIII, 55, 114, July to December, 1864. These courts were in general resorted to as substitutes for the ordinary police courts of cities, and their jurisdiction was in general confined to cases of breaches of the peace and of violation of such civil ordinances or military regulations as might be in force for the government of the locality. XIII, 392, February, 1865. 1578. Held that a person taking photographs of fortifications in time of war runs the risk of being treated as a spy, or at the least of doing a thing forbidden by the law of war. His arrest outside the limits of a military reservation would not be a trespass; nor would the seizure and retention of the photographic plates be unlawful. Their retention would be proper though no notice to the public prohibiting the taking of such photographs had been given. Card 4784, August, 1898. 1579. Under the law of war a government by military occupation has no power to alienate immovable property so as to render such aliena 1Some of these courts, however, took cognizance, in the course of their existence, of cases of very considerable importance, civil as well as criminal. See the following General Orders establishing or relating to Provost Courts and similar tribunals: G. O. 41, Dept. of Virginia, 1863; do. 45, Dept. of the Gulf, 1863; do. 6, 77, id. 1864: do. 103, 146, Dept. of Washington, 1865; do. 39, id. 1866; do. 102, Dept. of the South, 1865; do. 30, 38, 49, 68, Dept. of S. Carolina, 1865; do. 37, id. 1866; do. 31, Dept. of the Mississippi, 1865; do. 12, Dept. of Arkansas, 1865; do. 5, Mil. Div. of the James, 1865; do. 31, First Mil. Dist., 1867; Circ., Second id. May 15, 1867; G. O. 29, 61, id. 1868; do. 4, Fifth id. 1869; also Gen. Wool's G. O. 516 of 1847. While the majority of these special tribunals were confined to the exercise of such functions as are commonly devolved upon police or justices' courts, their authority, when empowered for the purpose by a competent military commander, to take cognizance of important civil actions has been affirmed by the Supreme Court of the United States in the case of Mechanics' & Traders' Bk. v. Union Bk., 22 Wall., 276, in which a "Provost Court," established at New Orleans by an order of the department commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment rendered by it in an action for the recovery of $130,000, money borrowed by one bank from another, was recognized as legal. See this case also in 25 La. An. 387. So, the authority of the "Provisional Court of Louisiana" (which succeeded the "Provost Court" last indicated, and was established by the President, in an Executive Order of Oct. 20, 1862) to determine a cause in admiralty, was affirmed by the United States Supreme Court in The Grapeshot, 9 Wallace, 129, and later its jurisdiction in a civil action on a mortgage debt was recognized by that tribunal in Burke r. Miltenberger, 19 Wallace, 519. And see the same case, as Burke . Tregree, in 22 La. An. 629. The authority of the same court to take cognizance of a case of murder and one of arson (as also of civil controversies) was maintained in an elaborate tion effective after the re-instatement of the former government.1 And it would seem that the same rule should apply to the granting of franchises for railways, electric light plants, etc. Whether the effect of a treaty of peace substituting the sovereignty of the United States for that of the former government would be to render such alienations and grants binding is doubtful. Upon this point the authorities do not seem to agree, but it is laid down in the "Instructions for the Government of the Armies of the United States in the Field” (G. O. 100, A. G. O. 1863, par. 31) that "a victorious army appropriates all public money, seizes all public movable property until further direction by its government and sequesters for its own benefit or that of its government, all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation and until the conquest is made complete." If the title to real property is in abeyance as stated, it would seem that the military authorities would be without power to make an alienation of it by the granting of franchises or otherwise. which would be valid after the termination of the government by military occupation. Card 5076, September, 1898; 5457, December, 1898. 1580. Anything that may properly be made a law of a military government, and which is promulgated in any effective way that the supreme military commander may see fit to promulgate it, becomes a valid law of that government on being so promulgated and must be obeyed by all persons within the territory. No rules or laws that may have been in force in the territory prior to its military occupation can compel the commander to adopt any particular manner of promulgaopinion of its judge, Hon. C. A. Peabody (in 1865), in the cases of the United States r. Reiter & Louis, reported in 13 Am. Law Reg. 534. The civil jurisdiction of a similar war court-the "Commission" established by the department commander in Memphis in 1863—was similarly recognized in Hefferman r. Porter, 6 Coldw. 391. And as to the full authority of this tribunal as a substi tute for the ordinary civil courts of the locality, see also State v. Stillman, 7 id. 341. But see, contra, Walsh r. Porter, 12 Heisk. 401. In the cases thus sustaining the action of special tribunals during the civil war, the courts in general refer to the earlier and leading case of Leitensdorfer v. Webb, 20 Howard, 176, in which was affirmed the authority of the courts established in 1846 in New Mexico as a part of the system of civil government instituted by Gen. Kearney, the military commander. With this case consult also United States 7. Rice, 4 Wheaton, 254; Cross r. Harrison, 16 Howard, 164. The reasoning upon which the above cited later rulings is based is,-that the authority to create courts with a civil as well as a criminal jurisdiction in a conquered country in military occupation attaches to the dominant power by the law of war and of nations as an incident to the power to establish a military government; that it is not only the right but the duty of the conqueror to institute such courts "for the security of persons and property and for the administration of justice"; and that when during the civil war such courts were created by commanding generals-such as the commanders of separate departments or armies-the order of the commander was to be presumed to be the order and act of the President. Wheaton Int. Law, third Eng. edition by Boyd p. 469; Hall's Int. Law, fourth edition, 482-508; Birkhimer's Military Government and Martial Law, 197. tion of the rules enjoined by him. The chief commander in the territory governed by military government does not fill any office or position that formed a part of the government of the country prior to the military occupation; nor is he bound by any rules or laws relating to the performance of official duties by any governor or other officer of the government displaced. Card 5978, May, 1898. 1581. As a result of military occupation the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless the latter sees fit to substitute for them other rates or modes of contribution to the expenses of the government. So, held that the President acted clearly within his powers when under date of August 8, 1898, as commander-in-chief of the army and navy he ordered and directed what the tariff and duties to be levied and collected as a military contribution upon the occupation and possession of any ports and places in the Island of Cuba by the forces of the United States should be; that regulations for the administration of such tariff and duties should take effect and be in force in the ports and places when so occupied; and that questions arising under said tariff and regulations should be decided by the general in command of the United States forces in said island. Card 5268, November, 1898. 1582. The destruction or injury of private property in battle or the bombardment of cities and towns has to be borne by the sufferers as one of the consequences of war. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, may be lawfully ordered by the commanding general. The necessities of war justify all this. The safety of the State in such cases overrides all considerations of private loss. Salus populi is then in truth suprema lex. So held that the United States was not legally responsible for damages to the house of a resident and citizen of Santiago, Cuba, caused by a shell fired from an American war ship on or about the fifth day of July, 1898, during the bombardment of the city." Card 5619, January, 1899. 66 1583. Under the terms of the protocol of August 12, 1898, and of the Treaty of Peace, signed at Paris on December 10, 1898, all of the immovable property on the island of Porto Rico belonging to the general government and as such “to the Crown of Spain" together with certain property in the nature of public records was ceded to the United States. All other movable property of the general government for which no special provision was made either in the protocol 1See U. S. v. Pacific Railroad, 120 U. S., 227, and authorities cited. or treaty remained the property of Spain to be disposed of as desired by the latter. Certain articles of this movable property (office furniture) which it appeared had been, like the public buildings and other public works of the island, paid for from appropriations collected from the island, were ordered purchased from the Spanish government out of the insular funds collected by the United States. Held that the payment could legally be made as ordered, the property belonging to Spain and not to the "island government," there never having been an independent government for Porto Rico. Card 6828, August, 1899. 1584. When the treaty of peace with Spain took effect, April 11, 1899, the military government was in control in Porto Rico, and rightfully continued as the de facto government of the island exercising both executive and legislative powers,' subject to such constitutional limitations as were applicable. As the island had become territory of the United States, under the treaty, the Secretary of War was without power in the absence of congressional authority to alienate any part of the public domain, but held that he could, as representative of the President, lawfully license the temporary use of the same during the occupancy and government of the island by the military authorities. Card 6990, November, 1899. LEASE. 1585. By the River and Harbor Act of August 5, 1886, the United States formally accepted from the State of Ohio the Muskingum River Improvement, with all its franchises, appurtenances, water rights, &c., subject to any existing leases of water rights under leases granted by the State. The State, by its official representative, had made a lease to certain individuals which contained a clause providing for a forfeiture of the lease in case of an assignment without the sanction of the lessor. The lease was assigned to a third party without any formal sanction or concurrence on the part of the lessor, but the lessor, subsequently to the assignment, accepted rents from the assignee. Held that such acceptance amounted to an absolute waiver of the forfeiture clause, and made the lease valid in the hands of the assignee, investing him with all the rights of the original lessees, and was therefore binding upon the United States under the reservation of the act. 22, 45, January, 1888. 1586. The act of Congress approved Aug. 11, 1888 (25 Stats. 417), authorized the Secretary of War "to grant leases or licenses for the 'Cross . Harrison, 16 Howard, 164, 193. 2See Opinion of Atty. Genl. of July 26, 1899 (22 Opins., 544). use of the water powers on the Muskingum River at such rate and on such conditions and for such periods of time as may seem to him just, * * * and * * * equitable and expedient to grant leases or licenses for the occupation of such lands belonging to the United States on said Muskingum River as may be required for mill sites or for other purposes not inconsistent with the requirements of navigation." Under this statute two leases for periods of twenty years each were granted, but neither provided for a forfeiture of the term for non-payment of rent. Held, therefore, that the Secretary of War could not terminate them on account of non-payment of rent;1 and advised that the proper way to terminate them would be to have the lessees execute instruments surrendering their terms. Card 2096, March, 1896. See card 3242, January, 1900. 1587. Where a lease made to the United States, of land to be used for public purposes, contained no stipulation other than one for the payment of certain rent, held that such lease was not annulled by transfer under Sec. 3737, Rev. Sts., but was legally assignable. The case is deemed to be governed by the ruling of the Supreme Court in Freedman's Saving Co. v. Shepherd, to the effect that Sec. 3737 did not apply to a lease so made, "under which the lessor is not required to perform any service for the Government, and has nothing to do in respect to the lease except to receive from time to time the rent agreed to be paid." 43, 175, October, 1890. 2 1588. Where rent was due by the United States for the occupation of a house which it had leased for a recruiting rendezvous, and the title to the premises was claimed both by the lessor and another person as parties to a pending suit in a court of chancery,-advised that if the rights of the parties to the rent were so involved in the litigation as to enable the United States to pay the amount of the rent into court and receive an acquittance therefor, this course would properly be pursued; otherwise that the payment should be withheld entirely until the question of title be determined and the United States be enabled to receive a final receipt from one of the parties or both jointly. 64, 15, 300, February and April, 1894. 1589. Where land was leased by the United States for a target range in the State of Texas and the lease contained a covenant for renewal at the end of the year at the option of the United States, held that unless the lease were acknowledged (or proved) and recorded as provided by the Statutes of Texas, such covenant would not be binding upon a purchaser for value without notice thereof.3 Card 2439, July, 1896. Taylor's Landlord and Tenant, eighth ed., § 489; Am. and Eng. Ency. of Law (1st edition), vol. 12, p. 758k. 2127 U. S., 494; 4 Comp. Dec., 43. As to how a lease containing a covenant for renewal should be renewed, see § 882, ante. |