the island. Neither the military government of the island nor the executive branch of the Government of the United States has jurisdiction to make this determination. As to the inhabitants the treaty provides (Art. IX):

The civil rights and political status of the native inhabitants

determined by the Congress.

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shall be

The authority to determine what relation the permanent government of Porto Rico shall sustain to the Federal Government of the United States is also vested in Congress.

The history of our country is not without instances of attempts by the executive branch of our Government to anticipate the action of Congress in the determination of the relations between the Federal Government and the civil government in territory subject to military occupation; notably the instances of Upper California and New Mexico and the States which engaged in the rebellion and associated themselves as the Confederate States of America.

In these instances Congress refused to recognize the actions taken pursuant to Administrative or Executive authorization. In the instance of California the action of Congress was such that President Taylor sent a message to that body disclaiming all responsibility in the matter. (Message to 31st Cong, dated Jan. 21, 1850; Ex. Doc. No. 17, 1st sess. 31st Cong.)

In 1863 President Lincoln undertook to weaken the rebellion by the formation of loyal State governments in the rebellious districts, and for this purpose issued a proclamation December 8, 1863, inviting the people to form such governments under conditions set forth in the proclamation. (13 Stat. L., 738.) This was clearly a war measure. Pursuant to the request of President Lincoln, State governments were formed in Louisiana and Arkansas early in 1864 and in Tennessee early in 1865. To the State executives thus chosen were given the powers theretofore exercised by the military governors previously appointed by the President. Congress declined to recognize the governments so organized; and the Senators and Representatives elected thereunder were denied seats in the respective Houses.

Those were the last governments organized, while the war of the rebellion continued, in territory occupied by rebels treated as belligerents. They were the first efforts toward a reconstruction of State governments in insurgent territory. Their organization caused the first decided antagonism between the Executive and Congress growing out of the conduct of the war. The continued efforts of the succeeding Executive to secure Congressional recognition of these governments as sustaining the relation of component parts of the Union resulted in a controversy which culminated in the extraordinary proceeding of impeachment.

The views entertained by Congress as to the attempts of the Execu

tive to institute permanent governments in the territory subject at that time to military occupation were fixed among the institutions of our Government by what are known as the "reconstruction acts." By the act of March 2, 1867, said governments were denounced as illegal, subjected to military control, and declared to be provisional only. (14) Stat. L., 428.)

There exists an obvious necessity of creating and establishing a permanent civil government in Porto Rico. The authority necessarily to be exercised in accomplishing this work is vested in Congress. Porto Rico is now a conquest, or property seized as a spoil of war, and held to reimburse this nation for the loss of blood and treasure occasioned by the war, and to deter other nations from engaging in war with the United States.

The Constitution provides as follows:

The Congress shall have power *

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11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

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18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof. (Art. I, sec. 8.)

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. (Art. IV, sec. 3.)

The creation of a permanent civil government for Porto Rico calls for the exercise of legislative powers; and the Constitution provides that

All legislative powers herein granted shall be vested in Congress. (Art. I, sec. 1.) Halleck's International Law (3d ed., vol. 2, chap. 34, par. 16, p. 483)

says:

The right of the King to change the laws of a conquered territory after the war, results, according to the decisions of the English courts, from his constitutional power to make a treaty of peace, and consequently to yield up the conquest, or to retain it upon whatever terms he pleases, provided those terms are not in violation of fundamental principles. But the President of the United States can make no treaty without the concurrence of two-thirds of the Senate, and his authority over ceded conquered territory, though derived from the law of nations, is limited by the Constitution and subordinate to the laws of Congress. It, however, is well settled by the Supreme Court, that, as constitutional commander in chief, he is authorized to form a civil or military government for the conquered territory during the war; and that when such territory is ceded to the United States, as a conquest, the existing government so established does not cease as a matter of course or as a consequence of the restoration of peace; that, on the contrary, such government is rightfully continued after the peace and until Congress legislates otherwise. So long as that government continues *

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it represents the sovereignty of the United States, and has the legal authority to enforce and execute the laws which extend over such territory. Congress may at any time put an end to this government of the conquered territory, and organize a new one. * * * The power of Congress over such territory is clearly exclusive and universal.

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 Admir. e. United States, 171 U. S., 220, 230; United States v. Vallejo, 1 Black, 541; Harcourt r. 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 . Robertson, 124 U. S., 190; Edye . 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 . 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.

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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