It is undoubtedly true that the military government of civil affairs in Porto Rico will continue to be administered by martial rule and that martial rule includes authority to deal with each necessity that may arise. In attempting to apply this broad rule it must be remembered that "necessity," as used in connection with the justification of martial rule, means that which is essential or indispensable to the accomplishment of a required purpose.

What are the purposes required of the existing military government of Porto Rico? To the writer it appears that since said government has ceased to be an instrument of actual war, its purposes are (1) to promote conditions which will justify the transfer of the administration of civil affairs to the civil branch of the government; (2) to preserve peace and order in the island, i. e., police the territory until Congress shall have an opportunity to effect the legislation required by the conditions existing in that territory.

To accomplish these purposes the most potent means available to the military government is the military force placed at its disposal. Next in importance are the various agencies of civil government subject to its direction and control and the police power of a State. The methods and procedure to be followed in attempting to accomplish these purposes are those available under the laws continuing in force in the island, supplemented by the military orders of legislative character issued during the existence of the war.

The powers derived from these sources are not sufficient to cope with all matters which may properly be the subject of governmental action when permanent government is established. There are undoubtedly rights to be released and conferred, abuses to be corrected, wrongs to be righted, and many public undertakings to be entered upon; but such is also the existing condition in the United States and all other countries. These await the orderly progress of the agencies of government created by the Constitution, which deal with them as best they can, often inadequately it is true; but a military government is by no means a short cut to the millennium.

A military government installed by the United States in territory ceded and held as a conquest, is required, in time of peace, to execute the laws in force in the territory subject to its jurisdiction. The question therefore arises as to what laws are in force in Porto Rico.

1. I have heretofore referred to the general doctrine that the inhabitants of territory subject to military occupation or held as a ceded conquest are governed in their relations inter se by the municipal laws of such territory in force at the time of the cession or conquest. Said laws, while they are not suspended or abrogated by the fact of military occupancy, may be suspended or altered by the conqueror during the period of the war when he exercises the power of supreme legislator as a belligerent right. (See Halleck's Int. Law, 3d ed., chap. 34, sec. 18.)

It is therefore necessary to determine what laws remained without modification when the war ended, and what modifications had been made.

2. It is also necessary to consider that upon the occupied territory being ceded to the United States all of the laws of the former sovereignty which were incompatible with the character and institutions of our Government became null of force and void of effect. (Chi., R. I. & P. R'y Co. v. McGlinn, 114 U. S., 542, 546; Am. Ins. Co. v. Canter, 1 Pet., 542; More . Steinbach, 127 U. S., 70, 80.)

In Railway Co. . McGlinn the court say (p. 546):

It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed. Among other laws which pass away with a surrendered sovereignty are those relating to the alienation of public property.

In More . Steinbach (127 U. S., 70, 81) the court say:

The doctrine invoked by the defendants, that the laws of a conquered or ceded country, except so far as they may affect the political institutions of the new sovereign, remain in force after the conquest or cession until changed by him, does not aid their defense. That doctrine has no application to laws authorizing the alienation of any portions of the public domain, or to officers charged under the former government with that power. No proceedings affecting the rights of the new sovereign over public property can be taken except in pursuance of his authority on the subject. (See also Ely's Admr. v. United States, 171 U. S., 220, 230; United States v. Vallejo, 1 Black, 541; Harcourt e. Gailliard, 12 Wheat., 523.)

3. While the municipal laws of newly acquired territory not in conflict with the laws of the new sovereign continue in force without the expressed assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14.) However, such political laws of the prior sovereignty as are not in conflict with the constitution or institution of the new sovereignty may be continued in force, if the conqueror shall so declare by affirmative act of the

commander in chief during the war, or by Congress in time of peace. (Ely's Administrator v. United States, 171 U. S., 220, 231.)

4. The laws of the new sovereignty which proprio vigore extend over the newly acquired territory.

The administrative branch of this Government, believing that the power of extending the existing laws of the United States over the territories acquired by the late treaty of cession with Spain is lodged in Congress, that belief must be assented to and respected by the military governments of said territory.

5. The provisions of the treaty of peace and cession and the obligations of international law are binding upon the military government, not only in a national sense, but also as they affect the rights of individuals. (Ex Parte Cooper, 143 U. S., 472; Whitney v. Robertson, 124 U. S., 190; Edye v. Robertson, 112 U. S., 580.)

6. An officer of the United States acting as a military governor is bound to obey the orders of his superior officers, and to conform to such rules, regulations, orders, and instructions as the home Government is authorized to make, either by virtue of its own laws and principles of government or by the general law of nations.

7. The military government of Porto Rico may exercise the "police power" of a State.

It may be well to call attention to the fact that the officers of the United States Army who are acting as governors and other executive officers of the governments being maintained by the United States in the territories ceded and relinquished by Spain are officials of the United States, and derive their authority from this Government, and not from the Crown of Spain. The right to exercise certain royal prerogatives which had been possessed by the officers of Spain did not pass to the officers of the United States.

In Munford v. Wardwell (6 Wall., 423, 435) the court held:

Mexican rule came to an end in that department on the 7th of July, 1846, when the government of the same passed into the control of our military authorities. Municipal authority also was exercised for a time by subordinate officers appointed by our military commanders. Such commander was called military governor, and for a time he claimed to exercise the same civil power as that previously vested in the Mexican governor of the department. By virtue of that supposed authority Gen. S. N. Kearney, March 10, 1847, as military governor of the territory, granted to the town of San Francisco all the right, title, and interest of the United States to the beach and water lots on the east front of the town, included between certain described points, excepting such lots as might be selected for government use. But the power to grant lands or confirm titles was never vested in our military governors; and it follows as a necessary consequence that the grant as originally made was void and of no effect. Nothing passed to the town by the grant, and, of course, the doings of the alcalde in selling the lot in question was a mere nullity.

* *

*

In letter to the Secretary of War dated July 10, 1899, AttorneyGeneral Griggs (22 Op., 527) says:

By well-settled public law upon the cession of territory by one nation to another, either following a conquest or otherwise, those internal laws and regulations which

are designated as municipal continue in force and operation for the government and regulation of the affairs of the people of said territory until the new sovereignty imposes different laws or regulations.

Those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty. Political and prerogative rights are not transferred to the succeeding nation. Such laws for the government of municipalities in said territory as are not dependent on the will of the former sovereign remain in force. Such laws as require for their complete execution the exercise of the will, grace, or discretion of the former sovereign would probably be held to be ineffective under the succeeding power.

Whether or not the prerogative rights of the sovereign of Spain passed by the cession to the sovereign people of the United States, it is not necessary to discuss. The Federal Government of the United States derives such powers as it possesses from the people, by and through the Constitution, wherein said powers are enumerated.

As was said in Pollard's Lessee . Hagan (3 How., 225):

It can not be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them.

It is important to ascertain whether or not the head of the military government of Porto Rico may now exercise the power of legislation. In time of war and in territory affected by military operations undoubtedly the head of a military government may exercise this power. War no longer exists in Porto Rico. The sovereignty of the United States has attached permanently to the island, and the Government of the United States is in peaceable possession of the territory. The right to legislate therefor now belongs to Congress, and I see no reason for asserting that the jurisdiction of Congress has been suspended or Congress in any way incapacitated for exercising this right. It is the inability of the duly authorized agency of government to perform its proper function which authorizes the performance of that function by martial rule. As to legislation for Porto Rico, this justification can not be asserted.

Notwithstanding this want of authority to legislate, the head of the military government of civil affairs in Porto Rico is at liberty to issue military orders which the inhabitants are bound to obey. His warrant therefor is the vis major at his command and constitutes an authority akin to the police power of a State. Therefore such orders should relate exclusively to the internal or domestic affairs of the island. These orders differ from legislation in that they lack abiding force or permanency, since their force would cease upon the military government being withdrawn, unless Congress, by appropriate action, should continue them in force and effect.

In respect of the exercise of this authority, it is necessary for those charged with the high duty of administering military government to bear in mind that a military government in time of peace is not only

a lawful government, but also a government of law, and that law isto 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 decision 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.