9. 1850 (9 Stat. 446), established a Territorial government for New Mexico. The legislative assembly of the Territory, by an act of July 14, 1851, provided for the transfer of suits and processes of the Kearny courts to the new courts, and this was done in the present case. No question was made by counsel as to the validity of the Kearney ordinances, said the court, "with respect to the period during which the territory was held by the United States as occupying conqueror, and it would seem to admit of no doubt that during the period of their valid existence and operation, these ordinances must have displaced and superseded every previous institution of the vanquished or deposed political power which was incompatible with them." But it was contended that all rights of the occupying conqueror, as such, were terminated by the close of the war, and that the prior institutions, which were overthrown or suspended, were revived and reestablished. "The fallacy of this pretension," said the court, "is exposed by the fact, that the territory never was relinquished by the conqueror, nor restored to its original condition or allegiance, but was retained by the occupant until possession was matured into absolute permanent dominion and sovereignty; and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms. We conclude, therefore, that the ordinances and institutions of the provisional government would be revoked or modified by the United States alone, either by direct legislation on the part of Congress, or by that of the Territorial government in the exercise of powers delegated by Congress." In reality, however, the opinion of the court on these points was obiter, since the case went off on a mere question of pleading, the opinion declaring that the record presented a matter "not within the appellate or revisory power" of the court. Leitensdorfer v. Webb (1857), 20 How. 176. See, also, Cross v. Harrison, 16 How. 164, 190. While New Orleans was occupied by the United States forces during the civil war, a lease of water-front property was made to a steamship company by the city authorities appointed by the commanding general. The lease was for ten years on payment of an annual rental, and the company entered into possession and proceeded to improve the property. Some months later the commanding general forbade the military city authorities to grant rights extending beyond the reestablishment of civil government, and soon afterwards the city government was transferred to the proper civil authorities, who undertook to remove by force a part of the company's property, maintaining that the military government had no power to lease property held in trust by the city for public uses, and that whatever rights or powers the military authorities possessed ended with the termination of hostilities. The company applied for an injunction and damages. It was held that the powers of a military occupant in the exercise of the functions of government were limited only by the laws and usages of war; that a contract for the use of a part of the water front of the city was within the scope of the military occupant's authority; that the question therefore arose whether the contract under discussion represented a fair and reasonable exercise of such authority; that, considering the provisions of the lease, this question was to be answered in the affirmative; that the lease therefore did not fall when the military jurisdiction ended, and that the law of post liminium had no application to the case. The court added, however: "We do not intend to impugn the general principle that the contracts of the conqueror touching things in conquered territory lose their efficacy when his dominion ceases. We decide the case upon its own peculiar circumstances, which we think are sufficient to take it out of the rule." New Orleans v. Steamship Co., 20 Wall. 387. Cited by Knox, At. Gen., Oct. 17, 1901, 23 Op. 551, 561, holding that sec. 3 of the joint resolution of May 1, 1900, 31 Stat. 715, imposing certain restrictions on the grant of franchises in Porto Rico, did not affect an antecedent license issued by the Secretary of War for the building and maintenance of a wharf at San Juan. "In New Orleans v. Steamship Co., 20 Wall. 387, 393, it was said, with respect to the powers of the military government over the city of New Orleans after its conquest, that it had the same power and rights in territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war. In such cases the conquering power has the right to displace the preexisting authority, and to assume to such 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 exerted in such cases, save those which are found in the laws and usages of war. These principles have the sanction of all publicists who have considered the subject." Mr. Justice Brown, delivering the opinion of the court, Dooley v. United The Constitution did not prohibit the creation by military authority of courts for the trial of civil causes during the civil war in conquered portions of the insurgent States. The establishment of such courts was the exercise of the ordinary rights of conquest. Mechanics and Traders' Bank v. Union Bank, 22 Wall. 276. Petitioner, a resident native of Porto Rico, and a civilian, was tried, convicted, and sentenced in March, 1899, for a crime committed in that island, by a military tribunal of the United States established during the occupancy of the island by the forces of the United States as conquered territory of Spain. Held, that so long as a state of war existed between Spain and the United States, and the island remained Spanish territory, which was until April 11, 1899, when ratifications of the treaty of peace and of cession were exchanged, such tribunal had jurisdiction to try offenses, and, no objection being made to the formal regularity of the proceedings, the petitioner was not entitled to discharge on a writ of habeas corpus. Ex parte Ortiz, 100 Fed. Rep. 955. The court has never gone further in protecting the property of citizens residing during the rebellion in the Confederate States from judicial sale than to declare that where such citizen has been driven from his home by a special military order and forbidden to return, judicial proceedings against him were void. University. Finch, 18 Wall. 106. "The capitulation of the Spanish forces in Santiago de Cuba and in the eastern part of the province of Santiago and the occupation of the territory by the forces of the United States render it necessary to instruct the military commander of the United States as to the conduct which he is to observe during the military occupation. "The first effect of the military occupation of the enemy's territory is the severance of the former political relations of the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their private rights and relations. It is my desire that the inhabitants of Cuba should be acquainted with the purpose of the United States to discharge to the fullest extent its obligations in this regard. It will therefore be the duty of the commander of the army of occupation to announce and proclaim in the most public manner that we come not to make war upon the inhabitants of Cuba, nor upon any party or faction among them, but to protect them in their homes, in their employments, and in their personal and religious rights. All persons who, either by active aid or by honest submission, cooperate with the United States in its efforts to give effect to this beneficent purpose will receive the reward of its support and protection. Our occupation should be as free from severity as possible. "Though the powers of the military occupant are absolute and supreme and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and other officials connected with the administration of justice may, if they accept the supremacy of the United States, continue to administer the ordinary law of the land, as between man and man, under the supervision of the American commander-in-chief. The native constabulary will, so far as may be practicable, be preserved. The freedom of the people to pursue their accustomed occupations will be abridged only when it may be necessary to do so. "While the rule of conduct of the American commander in chief will be such as has just been defined, it will be his duty to adopt measures of a different kind if, unfortunately, the course of the people should render such measures indispensable to the maintenance of law and order. He will then possess the power to replace or expel the native officials in part or altogether; to substitute new courts of his own constitution for those that now exist, or to create such new or supplementary tribunals as may be necessary. In the exercise of these high powers the commander must be guided by his judgment and his experience and a high sense of justice. "One of the most important and most practical problems with which it will be necessary to deal is that of the treatment of property and the collection and administration of the revenues. It is conceded that all public funds and securities belonging to the government of the country in its own right, and all arms and supplies and other movable property of such government, may be seized by the military occupant and converted to his own use. The real property of the state he may hold and administer, at the same time enjoying the revenues thereof, but he is not to destroy it save in the case of military necessity. All public means of transportation, such as telegraph lines, cables, railways, and boats, belonging to the state, may he appropriated to his use, but, unless in case of military necessity, they are not to be destroyed. All churches and buildings devoted to religious worship and to the arts and sciences, and all schoolhouses, are, so far as possible, to be protected, and all destruction or intentional defacement of such places, of historical monuments or archives, or works of science or art is prohibited, save when required by urgent military necessity. "Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as telegraph lines and cables, railways and boats, may, although they belong to private individuals or corporations, be seized by the military occupant, but unless destroyed under military necessity are not to be retained. As "While it is held to be the right of the conqueror to levy contributions upon the enemy in their seaports, towns, or provinces which may be in his military possession by conquest, and to apply the proceeds to defray the expense of the war, this right is to be exercised within such limitations that it may not savor of confiscation. the result of military occupation the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the salaries of the judges and the police, and for the payment of the expenses of the army. "Private property taken for the use of the army is to be paid for, when possible, in cash at a fair valuation, and when payment in cash is not possible receipts are to be given. "All ports and places in Cuba which may be in the actual possession of our land and naval forces will be opened to the commerce of all neutral nations, as well as our own, in articles not contraband of war, upon payment of the prescribed rates of duty which may be in force at the time of the importation." Order of President McKinley to the Secretary of War, July 18, 1898, on the occupation of Santiago de Cuba by the American forces, Correspondence relating to War with Spain I. 159. As a matter of power, it is within the legitimate function of the War Department to establish and maintain its own telegraph line between Santiago and Havana, Cuba, and to transmit private messages over it, although the transaction of business of that nature may be in conflict with the vested rights of the International Ocean Telegraph Company. In the maintenance and operation of such line the military officers of the United States in Cuba are exercising a war power under a military occupation of territory wrested by arms from a belligerent. The question whether the business of the International H. Doc. 551-vol 7-18 |