commander in chief during the war, or by Congress in time of peace. (Ely's Administrator . 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. 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.

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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 v. 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 therefore 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.

CUBA.

The conditions existing in Cuba differ materially from those prevailing in Porto Rico, as do also the powers of the military government. The sovereignty of Spain has been withdrawn from Cuba, but the sovereignty of the United States has not attached thereto, and the sovereignty, declared by Congress to be possessed by the people of the island, remains dormant. Under these conditions the military government of Cuba continues to be a substitute for sovereignty, as though the question of sovereignty were still pending the outcome of a war It appears to the writer that under this condition the military government of Cuba may exercise such powers of sovereignty as are necessary for the successful conduct of the internal affairs of government, subject to the restraints imposed by the ideas and theories of government prevailing under the sovereignty by which it was created and the orders of the superior officials and authorities of the sovereignty by which said military government is sustained. (Regulations for United States Army, Art. VI, sec. 65.)

It must also be considered that the purposes respecting Cuba for which the war powers of the Government of the United States were called into activity and the military forces of the United States sent into that island are not yet accomplished. Congress, in the exercise of the great sovereign powers possessed by the United States as a member of the family of nations, directed the commander in chief of our military forces to employ the military branch of our Goverment (a) to compel Spain to relinquish sovereignty in Cuba; (b) to effect the pacification of the island; (c) to enable the inhabitants of Cuba to establish a stable, independent government.

These purposes were declared and the order for their accomplishment issued to the commander in chief by the adoption of the following resolution:

JOINT RESOLUTION for the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect.

Whereas the abhorrent conditions which have existed for more than three years in the island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battle ship with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and can not longer be endured, as has been set forth by the President of the United States in his message to Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action of Congress was invited: Therefore,

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

First. That the people of the island of Cuba are, and of right ought to be, free and independent.

Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.

Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.

Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.

Approved April 20, 1898.

(30th U. S. Stats., pp. 738, 739.)

Let us suppose that the Crown of Spain had seen fit to peaceably relinquish sovereignty in Cuba and turn over its subjects in the island, their personal and property rights, and the public property belonging to the Spanish Government situate in Cuba, to the care of the United States, relying upon the declaration of Congress that the United States would accomplish the pacification of the island and erect therein a stable. independent government. Would not the commander in chief of the military force charged with carrying out such declaration rightfully exercise such powers of a belligerent as were necessary to accomplish the undertaking?

Instead of pursuing the course supposed, Spain elected to go to war. Congress thereupon declared the war existing, by the passage of the following act:

AN ACT declaring that war exists between the United States of America and the Kingdom of Spain. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninetyeight, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect.

Approved April 25, 1898.

(30th U. S. Stats., p. 364.)

As directed to do by this act, the Commander in Chief of the Army and Navy proceeded to carry on the war so declared to exist, and compelled Spanish sovereignty to withdraw from Cuba and the Govern ment of Spain to sue for peace. This war was a mere incident to the accomplishment of the purposes declared by the Congressional resolu tion of April 20, 1898. It was an obstacle encountered by the Commander in Chief in carrying out the order given him by Congress in