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sidering each case upon its merits, unless the language of the instrument imperatively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire. Choice in some cases, the natural gravitation of small bodies towards large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that, ultimately, our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
We are therefore of opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case. The judgment of the Circuit Court is therefore
Clerk Supreme Court, U. S. (Cited from "Opinions Delivered in the Insular Tariff Cases in the Supreme Court of the United States," May 27, 1901. Washington: Government Printing Office.)
Military Government.—Military government is the organization by which the power of a state is exercised through the medium of its military establishment over the properties and inhabitants of a territory which has previously existed as a separate state or as a part of a separate state.
Military government must not be confused with Martial Law. The latter may be defined as the organization by which a state exercises its power through the medium of its military establishment over a portion of its own territory. The distinction is determined by the character of the territory over which military rule is established. If the territory is foreign, we have military government. If it is domestic, we have Martial Law. In making this distinction, districts which have been occupied by rebels against whom a recognized state of belligerency has existed are considered foreign.
Military Government vs. Martial Law. The above distinction between military government and martial law is important. By it, military government is placed within the domain of international law and the rule of war, whereas martial law is a domestic fact and the source of its authority is municipal law. This difference is made strikingly manifest through the dissimilar rules of responsibility under which military officers exercise their respective powers. With rare exceptions, the military governor of a district subdued by arms is amenable according to the laws and customs of war only for measures taken affecting the inhabitants of the district; whereas the military commander who enforces martial law must be prepared to answer for his acts, should their legality
be questioned, not only to his military superior but also to the civil tribunals when they resume their jurisdiction.
Military Government vs. Military Control.—Military government must also be distinguished from military control. Here the essential difference is to be found in the relations which exist between the native government and the military power which exercises control over its territory. Military control presupposes the absence of a former state of belligerency and of general armed opposition to its institutions. It is usually the result of the native government's inability to protect life and property and preserve law and order within its borders. It is usually instituted upon the invitation of the native government. It exists with the consent of the inhabitants of the territory or at least with the consent of an influential part of the population. It partakes of a contractual relation between the native government and the military power whereby the former surrenders for the time being the full exercise of its sovereign power in return for the military aid which is necessary to the establishment of peace and order over its territory. It implies the withdrawal of the military control as soon as the object for which it was instituted has been achieved. The American control over Santo Domingo and the former British and Russian control over their respective spheres of influence in Persia are examples.
This chapter deals only with military government, which may be divided into two classes:
1. The Government of Hostile Occupation, which is military government exercised over occupied enemy territory.
2. Military government of ceded or conquered territory, that is, territory which has come under the sovereignty of the state which dominates it but over which civil government has not yet been instituted.
(a) Government of Hostile Occupation. The distinction between these two types of military government is one of sovereignty. In the first type, the international title to the occupied territory still rests with the state which pos
sessed it prior to the occupation. The estabiishment of a military government over occupied enemy territory does not effect a permanent transfer of sovereignty. It does, however, temporarily suspend the authority of, and the exercise of the rights of, sovereignty by the state which possessed them prior to the occupation. That a true transfer of sovereignty is not effected is evidenced by the weil established rule, which is now incorporated in Act XLV of the Hague Convention of 1907, expressly forbidding the government of hostile occupations from compelling the inhabitants to swear allegiance to such government. The military government may require an oath of neutrality, although the necessity for such an oath is not apparent since the inhabitants owe the obligation imposed and can be punished under the law of war for the violation of such obligation. Moreover, the occupant may not demand services which involve the inhabitants in the obligation of taking part in military operations against their own country, nor can he compel the inhabitants of occupied territory to give information of the other belligerent or about his means of defence. These limitations, established by custom and formulated in the terms of the Hague Convention, limit the exercise of supreme power by the occupant, and therefore sustain the modern theory that the occupation of enemy territory suspends the exercise of sovereign power on the part of the former government but does not transfer sovereignty. As a result of the suspension of the exercise of the sovereign power of the former government, the government of Hostile Occupation possesses, for the time being, the authority to exercise most of the rights which under ordinary circumstances are attributes of sovereignty. The exercise of these rights results from the established power of the occupant and is considered legitimate by reason of the necessity of maintaining law and order, indispensable to both the inhabitants and the occupying force.
The German government of Belgium from 1914 to 1919 is an example of a military government of the first type. The
government of Mexico established by General Winfield Scott during the occupation of that country in 1847-48 is another example. The various military governments established by the Federal government over occupied districts of the south during the progress of the War of the Rebellion fall within this category. Here, it will be observed, the Federal government resumed control over territory that was still, according to its own contention, a part of the United States. It was, however, in a legal sense, foreign territory by virtue of the recognized belligerency of the Southern Confederacy to which it belonged. Its existence, however brief, as a part of a separate state had given it a new status in international law, which lasted as long as hostilities continued. Thus, the military governments established over wide sections of the south were in truth military governments, and not municipal governments administered according to the Code of Martial Law.
(6) Government of Ceded Territory.-Military governments of the second class almost invariably grow out of governments of hostile occupation. The transfer of the sovereignty to the occupant by the formal terms of the peace treaty ending the war, or his long continuance in undisputed and acknowledged possession of the territory, operate to establish a government of the second type. Examples of such governments are to be found in the military governments of Porto Rico, and the Philippine Islands after the signing of the peace between the United States and Spain, and in the German government of Alsace-Lorraine after the signing of the treaty of Frankfort.
The two types of military government resemble each other in form and exist for the same reason, namely, because they provide ready and effective machinery for maintaining law and order and enforcing the will of the dominating state upon an unfriendly population. The two types differ, however, in regard to the primary purpose which each is destined to serve, in the methods employed, and with respect to control exercised over each by the home government. The two types will be considered separately.