Mr. Cass's note was based on an opinion of Attorney-General Black, May 15, 1858, 9 Op. 140. An opinion of Mr. Reverdy Johnson, as counsel, controverting some of Attorney-General Black's positions, is printed in S. Ex. Doc. 25, 35 Cong. 2 sess. The note of Mr. Cass and the opinions just cited relate to the cases of the Georgiana and Lizzie Thompson, a full history of which is given in Moore, Int. Arbitrations, II., chap. xxxvi., 1593-1614. These cases are referred to in Lawrence's Wheaton (1863), 575, where it is stated that Mr. Cass maintained that "the citizens or subjects of a foreign nation may carry on commerce with the portions of a country in the hands of either of the parties to a civil war, and without awaiting any action on the part of their own government" toward the recognition of the insurgents. Mr. Cass, however, on the authority of Attorney-General Black, went, in the particular cases in question, somewhat further than this, and claimed for those in temporary de facto control an absolute right to dispose of the public property of the nation. This claim was not ultimately sustained by the United States, and the cases were dropped (Moore, Int. Arbitrations, II. 1612). It is probable that this result should be understood to affect not the general propositions stated by Mr. Cass when applied to ordinary commercial intercourse, but rather the broad interpretation sought to be given to them in ascribing to insurgents, who were afterwards defeated and dispersed, the same powers within the territory temporarily controlled by them as belonged to the permanent government. De facto governments "are of two kinds. One of them is such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation. * *The other kind of de facto governments** * is such as exists where a portion of the inhabitants of a country have separated themselves from the parent state and established an independent government. The validity of its acts, both against the parent state and its citizens or subjects, depends entirely upon its ultimate success. If it fails to establish itself permanently, all such acts perish with it. If it succeed, and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation. Such was the case of the State governments under the old confederation on their separation from the British Crown. Having made good their declaration of independence, everything they did from that date was as valid as if their independence had been at once acknowledged. Confiscations, therefore, of enemy's property made by them were sustained as if made by an independent nation. But if they had failed in securing their independence and the authority of the King had been reestablished in this country, no one would contend that their acts against him, or his loyal subjects, could have been upheld as resting upon any legal foundation. * "No case has been cited in argument, and we think none can be found, in which the acts of a portion of a state unsuccessfully attempting to establish a separate revolutionary government have been sustained as a matter of legal right. As justly observed by the late Chief Justice in Shortridge & Co. v. Macon, decided in the circuit, and, in all material respects, like the one at bar, 'Those who engage in rebellion must consider the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders. If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed.' Chase's Decisions, 136." Williams v. Bruffy (1877), 96 U. S. 176, 185–186. ernment: Castine. (2) MILITARY OCCUPATION. § 21. "On the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusive possession, under By recognized gov- the command and control of his military and naval forces, until the ratification of the treaty of peace in February, 1815. During this period the British Government exercised all civil and military authority over the place, and established a custom-house and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the goods upon which duties are now demanded. These goods remained at Castine until after it was evacuated by the enemy, and upon the reestablishment of the American Government the collector of the customs, claiming a right to American duties on the goods, took the bond in question from the defendant for the security of them. * * * "Under these circumstances, we are of opinion that the claim for duties can not be sustained. By the conquest and military occupation of Castine the sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. Castine was, there * * * fore, during this period, so far as respected our revenue laws, to be deemed a foreign port, and goods imported into it by the inhabitants were subject to such duties only as the British Government chose to require. Such goods were, in no correct sense, imported into the United States. The subsequent evacuation by the enemy, and resumption of authority by the United States, did not, and could not, change the character of the previous transactions.” Mr. Justice Story, delivering the opinion of the court, United States v. Rice (1819), 4 Wheaton, 246. Mr. Justice Story had previously held, on circuit, that Castine, while occupied by the British, was a "foreign port" in respect of the nonimportation (United States v. Hayward (1815), 2 Gallison, 485.) acts. The rights of the military occupant are discussed by Attorney-General Berrien, 2 Op. 321 (1830), and by Attorney-General Black, 9 Op. 140 (1858). On the other hand, it was held that goods imported into the United States from Tampico, Mexico, in 1847, while that port Tampico. was in the military occupation of the American forces, were subject to duties under the revenue laws as goods imported from a foreign country. It was true, said the court, "that, when Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. * * * But yet it was not a part of this Union. The boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest. They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the Government, was still foreign; nor did our laws extend over it." Fleming v. Page (1850), 9 How. 603. California and New * * * * * * "By the law of nations a conquered territory is subject to be governed by the conqueror during his military possession, and until there is either a treaty of peace, or he shall voluntarily withdraw from it. The old civil government being necessarily superseded, it is the right and duty of the conqueror to secure his conquest, and to provide for the maintenance of civil order and the rights of the inhabitants. This right has been exercised and this duty performed by our military and naval commanders, by the establishment of temporary governments in some of the conquered provinces in Mexico, assimilating them as far as practicable to the free institutions of our own country. In the provinces of New Mexico, and of the Californias, little if any further resistance is apprehended from the inhabitants to the temporary governments which have thus, from the necessity of the case and according to the laws of war, been established. It may be proper to provide for the security of these important conquests by making an adequate appropriation for purpose of erecting fortifications and defraying the expenses necessarily incident to the maintenance of our possession and authority over them." President Polk's second annual message, 1846. "In prosecuting a foreign war thus duly declared by Congress, we have the right, by conquest and military occupation, to acquire possession of the territories of the enemy, and, during the war, to exercise the fullest rights of sovereignty over it. The sovereignty of the enemy is in such case 'suspended,' and his laws can no longer be rightfully enforced' over the conquered territory, or be obligatory upon the inhabitants who remain and submit to the conqueror. By the surrender the inhabitants pass under a temporary allegiance' to the conqueror, and are bound by such laws, and such only, as' he may choose to recognize and impose. 'From the nature of the case, no other laws could be obligatory upon them; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedience.' These are well-established principles of the laws of war, as recognized and practised by civilized nations; and they have been sanctioned by the highest judicial tribunal of our own country." President Polk's special message, July 24, 1848. The port of San Francisco was occupied by the United States as early as 1846. "Shortly afterward, the United States had military possession of all of Upper California. Early in 1847, the President, as constitutional commander in chief of the Army and Navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army which had the conquest in possession. No one can doubt that these orders of the President, and the action of our Army and Navy commander in conformity with them, were according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations. In this instance it is recognized by the treaty itself." Cross v. Harrison, 16 How. 190. New Orleans. * * * The proclamation of General Butler at New Orleans, dated the 1st and published on the 6th of May, 1862, announcing that "all rights of property" would be held "inviolate, subject only to the laws of the United States;" and that "all foreigners not naturalized, claiming allegiance to their respective governments, and not having made oath of allegiance to the government of the Confederate States," would be "protected in their persons and property as heretofore under the laws of the United States," did but reiterate the rules established by the legislative and executive action of the National Government; and vessels and cargoes belonging to citizens of New Orleans, or neutrals residing there, and not affected by any attempts to run the blockade, or by any act of hostility against the United States, were protected by that proclamation, though such persons, by being identified with the enemy by long voluntary residence and business relations, may have been "enemies" within the meaning of the expression as used in public law. The Venice, 2 Wallace, 258, A conqueror has a right to displace the preexisting authority and to assume, to such extent as he may deem proper, the exercise by himself of all powers and functions of government. He may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to his pleasure, and he may prescribe the revenues to be paid, and apply them to his own use or otherwise. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war, as settled by the law of nations. New Orleans v. Steamship Company, 20 Wallace, 387. pines. "The first effect of the military occupation of the enemy's territory is the severance of the former political relations of Cuba and the Philip- the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their private rights and relations. . . . The municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before the occupation." But, if the course of the inhabitants should render such measures indispensable to the maintenance of law and order, the commander in chief possesses "the power to replace or expel the native officials in part or altogether, to substitute new courts of his own constitution for those that now exist, or to create such new or supplementary tribunals as may be necessary." The military occupant also collects and administers the revenues. President McKinley to the Secretary of War, May 19, 1898, in relation to the occupation of the Philippines, Richardson's Messages and Papers of the Presidents, X. 208. See, also, President McKinley to the Secretary of War, July 13, 1898, in relation to the occupation of Santiago de Cuba, id., X. 214. The powers of courts established by the military occupant do not necessarily terminate with the cessation of the war, Continuation of pow- if such occupant retains the sovereignty of the conquered territory, and suits pending in such courts may, on the organization of civil government, be transferred by statute to the new courts so organized. ers after annexation. Lietensdorfer v. Webb, 20 How. 176. |