Abbildungen der Seite
PDF
EPUB

Federal Courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. Congress could not invest a military commission with such power, owing to the Constitution of the United States. For the same reason suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.

under the

§ 7. It is said by English writers, that when a country has Effect of military been conquered by British arms, it immediately becomes a оссираdominion of the King in right of his Crown, and that the in- tion habitants of such conquered territory, once received under the laws of King's protection, become his subjects, and are universally to England be regarded in that light, and not as enemies or aliens. As no other act than that of conquest is requisite to make the conquered territory a dominion of the Crown, and nothing more than the submission to the King's authority and protection, on the part of the inhabitants of such territory, is necessary to make them subjects of the King, such territory is no longer to be regarded, either by other nations or by other parts of the British empire, as a foreign country, or its inhabitants as aliens. In other words, foreign territory becomes a dominion, and its inhabitants the subjects of the King, ipso facto, by the conquest made by the British arms, without any action of the legislature-the Parliament of Great Britain.'

§ 8. But a different rule holds in the United States. The

Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so in the case of a foreign invasion martial rule may become a necessity in one State, when in another it would be "mere lawless violence." (Ex parte Milligan, 4 Wall., 131; see also Geoffroy's Case in France, Forsyth, Cases and Opinions, 483; Phillipps v. Eyre, L. R., 6 Q. B., 1.)

In February 1866 it was resolved by Congress that the condition of the former Confederate States fully justified the President in maintaining the suspension of the writ of habeas corpus in those States, and that the condition of those States fully justified the President in maintaining the military possession and control of them.

Calvin's case, Coke R., part vii.; Elphinstone v. Bedreechund, Knapp. R., 338; Campbell v. Hall, 23 State Trials, 322; Fabrigas v. Moslyn, 1 Cowp. R., 165; Callet v. Lord Keith, 2 East. R., 260; Blankard v. Guldy, 4 Mod. R., 225.

tion of

States

Under the peculiar character of that government, and the powers vested constitu- in it by the Federal Constitution, have given rise to rules somethe United what peculiar and anomalous, with respect to the government of conquered territory. The President, in the exercise of his constitutional power as commander-in-chief of the army, and the military officers under his authority, may, when war has been declared, seize the enemy's possessions, and establish a government and laws for the territory so seized and occupied. Such territory is subject to the sovereignty and dominion of the United States as soon as the enemy is driven out or submits to their arms. But neither the President nor his officers can extend the limits, or enlarge the boundaries of the union. This can only be done by Congress. As the institutions and laws of the United States do not extend beyond the limits before assigned to them by the legislative power, the inhabitants of a conquered territory, during its military occupation by the United States, can claim none of the rights and privileges established by such laws. And even where these institutions and laws are adopted by the government of military occupation, the rights which they confer upon the inhabitants of the conquered territory do not extend to the States or territories of the United States. The conquered territory is under the sovereignty and authority of the Union; but it is not a part of the United States; nor does it cease to be a foreign country, or its inhabitants cease to be aliens, in the sense in which these words are used in the laws of the United States. They are to be governed by martial law, as regulated and limited by public law. But such territory forms no part of the Union, and its inhabitants have none of the rights, immunities, and privileges of citizens of the United States, under the Federal Constitution and laws; nevertheless, other nations are bound to regard the conquered territory, while in the possession of the United States, as its territory, and to respect it as such, and to regard its inhabitants as under its protection and government; for, by the laws and usages of nations,' says Chief Justice Taney, 'conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, have a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regards all other nations, it is a part of the United States,

[ocr errors]

and belongs to them as exclusively as the territory included in our established boundaries.'1

cerning

of inha

§ 9. This distinction between conquered territory in the Distincmilitary occupation of the United States, and territory of the tion conUnited States within the limits of the Federal union, as esta- relations blished by Congress, is a very important one, and leads to very bitants important consequences. It has been recognised and esta- with blished by the decisions of the highest judicial authority, and regard to foreign must be regarded as the law of the land. The relations be- States tween the inhabitants of such conquered territory and foreign. nations are, therefore, very different from the relations between the people of the United States and such nations, as previously established by treaties and commercial law. The intercourse of foreign nations with such territory, is regulated by the government of occupation, under the direction of the President of the United States, as commander-in-chief of the army, or, in other words, by martial law. Hence, the scale of duties, on goods imported into the conquered territory, and the tonnage on vessels and goods brought into the United States. The victor may either prohibit all commercial intercourse with his conquest, or place upon it such restrictions. and conditions as may be deemed suitable to his purpose. To allow intercourse at all is a relaxation of the rights of

So, also, the rules of intercourse and trade, between the inhabitants of the United States and such conquered territory, may be very different from the rules regulating the intercourse and trade between different parts of the union. An American vessel entering the port of the conquered territory, during its military occupation by the United States, must conform to the regulations adopted, and pay the duties exacted, by the government of such territory; and an American vessel, returning to the United States from a port of such territory, is regarded as coming from a foreign port, and not as engaged in the coasting trade; and the cargo is not exempt from the payment of duties as fixed by the laws of the United States for goods imported from a foreign country. The right of the victor to the revenues of the conquered territory is firmly established and recognised by the laws of war and the usage of nations. It is immaterial whether these revenues arise

1 Fleming et al. v. Page, 9 Howard R., 615; Cross et al. v. Harrison, 16 Howard R., 164; Gardner, Institutes, p. 208.

In regard

of the

Union

from import taxes, rents of public property, duties on imports and exports, or from any other source; they are a part of the conquest, and rightfully belong to the conqueror. Those who are permitted to hold commercial intercourse with such territory, whether they be subjects of the conqueror, or of foreign States, must conform to the regulations, and pay the duties established by the conquering power; and, in case of conquest by the United States, the President, in the absence of legislative enactments, exercises this power.1

§ 10. The effect of military occupation, by one belligerent, to States of a portion of the territory of the other, so far as respects revenue laws, has been adjudicated upon by the Supreme Court of the United States: Ist, with respect to neutral territory in possession of the enemy; 2nd, with respect to territory of the United States in possession of the enemy; and 3rd, with respect to the enemy's territory in the possession of the United States. I. In the case of the island of Santa Cruz, belonging to the Kingdom of Denmark, but in the military occupation of British forces, the Supreme Court says: Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet, to every commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark.' 2. Castine, in the United States, was captured by the British forces on the first day of September, 1814, and remained in their exclusive possession until after the ratification of the treaty of peace, in February 1815. By the conquest and military occupation of Castine,' says the Supreme Court, 'the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. 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 choose to recognise and impose.

1

Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vii. Cushing, Opinions U. S. Attys.-Gen., vol. viii. §§ 365 et seq.

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. Castine was, therefore, 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.' 3. In the case of Tampico, in Mexico, which was captured and occupied by the arms of the United States, during the war with Mexico, the Supreme Court held that cargoes of goods landed there were liable to the duties charged on them by the military authorities of the United States, whether shipped from the United States or from foreign countries.1

revenues

§ 11. In the absence of any laws of Congress on this sub- Collection ject, the regulating and collecting of such revenues, in enemy's and use of territory in the possession of the United States, devolves upon in such the President, as the constitutional commander-in-chief, and territory upon the military and naval officers under his direction. The moneys derived from these sources may be used for the support of the government of the conquered territory, or for the expenses of the war. They are war revenues and do not belong to the treasury of the United States until so directed by a law of Congress. Being no part of the moneys of the Treasury of the United States, their expenditure is not regulated by the general laws of the United States, but by the direction of the President of the United States, under whose authority they were collected.

During the war of 1846, between the United States and Mexico, and on the conquest of the ports of the latter republic on the Gulf of Mexico, the President of the United States formed a tariff of duties on goods from the United States and foreign countries, admitted into such ports in his military possession. A different one, however, had been previously adopted for California, by the military and naval commanders on the Pacific coast and Gulf of California, which, with certain modifications, was, with the tacit approval of the President, continued to the end of the war. Certain missions and other public property in California were rented by the military com

1 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch R., 191; United States v. Rice, 4 Wheat. R., 246.

« ZurückWeiter »