CHAPTER VI.

HOW MILITARY OR PROVISIONAL GOVERNMENTS MAY BE CREATED

AND REGULATED BY CONGRESS.

The right and duty of administering purely military government belongs to the war-making power, which is usually subject only to the rules of the belligerent law. When that power is regulated by any treaties, constitution, or statutes of the invading country, then military governments established under it must be conducted in accordance with the laws of war, as modified by such legislative, constitutional, or treaty restrictions. Thus, wherever in the United States such a government shall be instituted by the Commander-in-Chief, his administration of it may, to a certain extent, and with certain limitations, be regulated by acts of Congress.

The right of the United States to acquire territory by purchase, treaty, or annexation,, necessarily implies the existence in Congress of the power to establish some form of government over regions thus added to the country. Conquest itself confers on the conqueror authority to make laws for the conduct of people subjected to his power. The right of the government when conqueror in civil territorial war to make rules and regulations relating to conquest and captures may, by the Constitution of the United States, be exercised by the Legislative Department.

A provisional government, partaking in a high degree of a martial character, may be ordained and established over subjugated districts in time of civil war, by laws

of Congress, and may be administered by civilians or by military persons, appointed by the President, according to the requirements of the statutes.

It is also the duty of Congress to pass all laws which are proper and fit to aid the President in carrying into Obligation effect his official duty, to suppress rebellion and enforce the laws, to secure domestic tranquillity, and to guaranty to each State a republican form of government. And as the creation and administration of military or provisional governments is an essential means of accomplishing these objects, it would seem for this reason also to be the duty of Congress, in aid of the Commander-inChief, and without interfering with his military operations, to erect governments over the subjugated districts, clothed with powers adequate to administer the laws of war, subject to the Constitution and the Statutes of the United States, and to such orders as the President may from time to time issue, not inconsistent therewith. Governments thus established rest not alone upon the military power of the President as Commander-in-Chief of the army and navy, but upon the war powers of Congress, and should be so organized as to endure until the people of these districts shall be again permitted to resume self-government, and be again clothed with their former political rights.*

Therefore, although the President may, while engaged in hostilities, and in the absence of laws restricting his authority, enforce belligerent rights against a public enemy, Congress also may establish rules and regulations which, without interfering with his powers

* The model of our territorial governments, in time of peace, is the Ordinance of 13th July, 1787.

See 3 Story, Com. on Const. 1312.

Webster's Speeches, Jan. 1830, pp. 360-364.

Cerst Art 1. Jo 8 al 18 see ante p19.

as commander of the army, it will be his duty to administer.

In a province to be subdued by soldiers, the only means by which the will of Congress, or the will of the head of the army can usually be carried into execu tion, is by force of arms. In one sense, all government, whether provisional or quasi civil, established under such circumstances, must assume a military character. In that view it can be controlled by Congress only through use of the military power of the army. Yet the President is bound to execute all laws which Congress has a right to make; and so far as the Legislature has the authority to interfere with or control the President by laws or by regulations, or by imposing upon him the machinery of provisional governments, so far he is bound to administer them according to statute.

LIMITS OF POWER. CONFLICT BETWEEN THE WAR POWERS OF THE PRESIDENT AND THE LEGISLATIVE POWERS OF CONGRESS.

Though the Executive, Legislative, and Judicial departments of our government are to a certain extent independent of each other, yet no one of these departments is without some control over the others. The legislature can make no law without the concurrence of the President, unless passed by two-thirds of the voters in both houses; and laws, when made, are void if pronounced unconstitutional by the Supreme Judicial Court. The judiciary, in deciding purely political questions, are bound to follow the decisions of the Legislative or Executive departments, and are in other respects controlled by the action of the coördinate branches of the government. The Executive can make treaties only by concurrence of the Senate; and most of the appointments to high offices must, to be valid, be made with its

advice and consent. The President cannot declare war; but Congress can. Congress cannot carry on war; but the President can. Congress may make rules

and regulations concerning captures, and for the government and regulation of the land and naval forces, when in service, binding upon the President, whose duty it is to see all constitutional laws faithfully executed, while he is made the supreme commander of the army and navy.

Questions may therefore arise as to the limitation of the respective powers of the Commander-in-Chief in conducting hostilities, and the powers of Congress in controlling him, by virtue of this legislative right to make rules and regulations for the government of military forces, and respecting captures on land and sea.

To determine how far Congress may interfere with and govern the military operations of the Executive, when the war power is employed in enforcing local government by martial law, without derogating from his power as Commander-in-Chief of the army, will require careful consideration, inasmuch as such government can be in fact maintained and enforced only by military, and not by legislative authority.

HOW THESE GOVERNMENTS MAY BE TERMINATED.

Military governments may be terminated by the commanding general at his will, by withdrawal of the officers who administer it.

As it is in the power of the Legislative Department to declare war, and to provide or withhold the means of carrying it on, Congress also may, after hostilities shall have ceased, declare or recognize peace, terminate military or provisional governments, or may regulate them

and cause them to be modified or wholly withdrawn, whether originally erected by its own authority or by the war power of the President, and may institute civil territorial governments in their place.

Or the people of the district, having formed a new government for themselves, by permission of the United States, may be admitted into the Union as a State, and thus the military government will be displaced.

But military governments are not of necessity terminated by a declaration of peace between belligerents, or a cession of territory in dispute, but may be continued long after war ceases, by presumed assent of the President and of Congress.

"The right inference," says Mr. Justice Wayne, in delivering the unanimous opinion of the Supreme Court,* "from the inaction of both the President and of Congress, is, that it (the military government) 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 cause of delay, it must be presumed that the delay was consistent with the true policy of the Government." "California and New Mexico were acquired by conquest confirmed by cession. During the war they were governed as conquered territory, under the law of nations, and in virtue of the belligerent rights of the United States as the conqueror, by the direction and authority of the President as Commander-in-Chief. By the ratification of the treaty of Guadalupe-Hidalgo, on the 20th of May, 1848, they became a part of the United States, as ceded conquered territory. The civil governments established in each during the war, and existing at the date of the treaty of peace, continued in

*Cross vs. Harrison, 16 How. 193.