CHAPTER VIII. THE LAW ADMINISTERED BY MILITARY GOVERNMENTS. As the powers of a de facto government belong to the conqueror by the laws of war, he may suspend, modify, or abrogate all municipal laws of those whom he has conquered; he may disregard their former civil rights and remedies; he may introduce and enforce a new code of laws, military and municipal, and may carry them into effect by new military tribunals, having abolished all courts and offices held under the authority of It has been held by the Supreme Court that "the laws, whether in writing or evidenced by the usage and customs of the conquered or ceded country, continue in force till altered by the new sovereign." + while they continue in force, it is by the express or implied permission of the new sovereign, and until altered by him. They are recognized only as an expression of the will of the conqueror. If the law should conflict with the will of the conqueror, the LAW must yield; * Halleck, Int. Law, pp. 830-831, and cases there cited. Bowyer, Universal Public Law, ch. 16, 158. Fabrigas vs. Mostyn, 1 Cowper, 165. Gardner vs. Fell, 1 Jacob & Walker, 27. Flemming et al. vs. Page, 9 How. 603. Am. Ins. Co. vs. Canter, 1 Peters, 542. Cross et al. vs. Harrison, 16 How. 164. Heffter, Droit Int'l, sect. 185. Strother vs. Lucas, 12 Peters, 436, and authorities there cited. For the operation of transfers of territory upon the laws and rights of otherwise the conqueror would be subjected to the rule of those whom he has subjugated. But the local laws of a conquered country may be changed not only by the law-making power of the conquering country, but by virtue of the BELLIGERENT rights of the conqueror.* All these propositions follow from the fact that the power of a public enemy to make or administer law is terminated by the conquest of that territory by a dif ferent law-making and law-administering power, viz., that of the conqueror. The local laws of a conquered country of which our army holds military occupation, have no force or effect whatever, except by our permission. When such local laws agree with those of the invading country, such laws may be, and usually are, adopted and sanctioned because they do so agree therewith. Thus rules governing the rights of property, the relations of persons, the inhabitants of the territory ceded or conquered, see, among other authorities, the following, viz: Vattel, B. B. ch. 13, sects. 199, 201. 4 Com. Dig. Ley. (C.) Calvin's Case, 7 Coke, 176. Blankard vs. Galdy, 2 Salk. 411; S. C. 2 Mod. 222. Mostyn vs. Fabrigas, Cowp. 165. Hall vs. Campbell, Cowp. 204, 209. Anon. 2 P. Williams, 76. Ex parte Prosser, 2 Br. C. C. 325. Elphinstone vs. Bedreechund, Knapps P. C..R. 338. Ex parte Anderson, 5 Ves. 240. Evelyn vs. Forster, 8 Ves. 96. Sheddon vs. Goodrich, 8 Ves. 482. Att'y Gen'l vs. Stewart, 2 Meriv. 154. 8 Wheaton, 589; 12 Wheaton, 528–535. 9 Pet. 133, 734, 749. * Cross vs. Harrison, 16 How. 199. and the laws of crimes in the respective countries of the belligerents are often so nearly alike that the administration of them is permitted to remain un. changed even in war. But no law or institution established by law is permitted to survive, which is in conflict with those of the conqueror. In all cases, the will of the conqueror governs. Hence, in a ceded or subjugated territory, all laws violating treaty stipulations with foreign nations, or granting rank and titles or commercial privileges in conflict with the institutions of the conqueror, are abrogated.* It has been asserted that the municipal laws of a belligerent territory remain in force, "proprio vigore," until altered by military orders; but, although such laws may have been tacitly adopted, or the enforcement thereof may have been permitted, it is not because these laws retained any validity "proprio vigore." Their only validity was derived from the tacit or express sanction and adoption thereof by the will of the commanderin-chief of the invading army. In case of conquest of a foreign country, the question has been asked, what laws, if any, of the invading country are ipso vigore, and without legislation extended over the territory acquired in war? The suppression of the present rebellion is not the conquest of a foreign country. The citizens of the United States residing in the districts in rebellion are not alien enemies, though they are public enemies; and it is important, in several points of view, to observe the dis * Halleck, Int. Law, 833, 834, and authorities there cited: Campbell vs. Hall, 1 Cowper, 205. Fabrigas es. Mostyn, 1 Cowp. 165. Gardner vs. Fell, 1 Jacob and Walk. 27, 30, note. Att'y Gen'l vs. Stewart, 2 Merivale, 159. tinction between enemies who are subjects of a foreign government, and are therefore called "alien enemies," and those who are denizens and subjects of the United States, and being engaged in civil war, are called “public enemies." An alien owes no allegiance or obedience to our government, or to our constitution, laws, or proclamations. A citizen subject is bound to obey them all. In refusing such obedience, he is guilty of crime against his country, and finds in the law of nations no justification for disobedience. An alien, being under no such obligation, is justified in refusing such obedience. Over an alien enemy, our government can make no constitution, law, or proclamation of obligatory force, because our laws bind only our own subjects, and have no extra-territorial jurisdiction. Over citizens who are subjects of this government, even if they have so far repudiated their duties as to become enemies, our constitution, statutes, and proclations are the supreme law of the land. The fact that their enforcement is resisted does not make them void. It is not in the power of armed subjects of the Union to repeal or legally nullify our constitution, laws, or other governmental acts. The proclamation of the President, issued during the present rebellion, in executing the powers conferred on him by the Constitution and the Acts of Congress, in rits executing their powers, and the decisions of the Supreme Court of the United States, are all, in one respect, "like the Pope's bull against the comet; " the proclamation, the lawsand the decisions are alike resisted and spurned by our adversaries; neither can be enforced until the enemy is overthrown. But when the soldiers of the Union shall have routed and dispersed the last armed force of the rebellion, and when the supremacy of our military power is undisputed, the constitution, the laws of Congress, the proclamation, and the decisions of the Supreme Court, will at the same time, pari passu, be acknowledged and enforced. It is, therefore, idle to speculate upon the legal validity and operation of the proclamation liberating enemies' slaves, in districts not yet secured in our military possession. It would be equally useless to attempt to determine the validity and operation of our constitution, laws, and decisions of courts in these rebellious districts. Neither of them will be enforced upon the enemy until they have been subjugated. When that event takes place, whether it be the result of battles or of returning sanity of repentant madmen, the army of the United States will then have actual possession of every portion of the United States, and of every slave who may be found therein; and the rights of the slave to his freedom under the constitution, the statutes passed, and the proclamations issued by the Government during the war, will be secured to him at the same time that other rights under the same Constitution and proclamations will be secured to the other inhabitants of the country. And there can be no doubt that in civil war the laws of the United States, rightfully extending at all times over the whole country, are to be enforced, so far as applicable, in time of war, over the belligerent territory as fast as it comes under our military control; and that in case of complete conquest, the constitution and laws. of the Union will be restored to full operation over all the inhabitants thereof. At the same time, the laws of war will have swept away all local hostile authorities, and all laws, rights, and institutions resting solely thereon. |