A discussion of military jurisdiction in Ex Parte Milligan (1866)
There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [71 U.S. 2, 142] as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of
Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.
We can organize this more straightforwardly as follows.
There are under the Constitution three kinds of military jurisdiction:
- MILITARY LAW is exercised both in peace and war; and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces;
- MILITARY GOVERNMENT is exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress;
- MARTIAL LAW PROPER is exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise; and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.
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A discussion of the acquisition of territory by treaty cession in American Ins. Co. v. 356 Bales of Cotton (1828)
Chief Justice Marshall stated that "The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.... The usage of the world is, if a nation be not entirely subdued to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it is ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo and change. Their relations with their former sovereign are dissolved, and new relations are created between them, and the government which has acquired their territory. The same Act which transfers their country, transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse, and general conduct of individuals, remains in force, until altered by the newly created power of the state."
A discussion of the concept of independent customs territory in Fleming v. Page (1850)
It is true, that, when Tampico had been captured ... 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. For, by the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, had 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 regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.
But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States while it was occupied by their arms did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President under which Tampico and the State of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they were in an enemy's country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest . . . .
Historical Background to the Mexican-American War:
- 1846.04.24 conflict between military forces of the two countries
- 1846.05.13 US declares war
- 1846.10.28 Port of Tampico occupied by US military forces
- 1847.09.14 surrender of Mexican military forces
- 1848.02.02 Mexico and US sign peace treaty
- 1848.05.30 Mexican-American Peace Treaty (Treaty of Guadalupe Hidalgo) comes into force
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Note: United States v. Rice (1819) also discusses the concept of independent customs territory arising from military occupation.
A discussion of the continuation of military government in California after the Mexican-American Peace Treaty (Treaty of Guadalupe Hidalgo) came into force in Cross v. Harrison (1853)
By the conclusion of the Treaty of Peace, the military government which was established over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. But is there, for this reason, no government in California? Are life, liberty, and property under the protection of no existing authorities? This would be a singular phenomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately, they are not reduced to this sad condition. The termination of the war left an existing government, a government de facto, in full operation, and this will continue, with the presumed consent of the people, until Congress shall provide for them a territorial government. The great law of
necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest.
This government de facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land.
. . . .
The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, ... with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so.
Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government.
Historical Background to the Mexican-American War and the conquest of California territory:
- 1846.04.24 conflict between military forces of the two countries
- 1846.05.13 US declares war
- 1847.01.13 California territory occupied by US military forces
- 1847.09.14 surrender of Mexican military forces
- 1848.02.02 Mexico and US sign peace treaty
- 1848.05.30 Mexican-American Peace Treaty (Treaty of Guadalupe Hidalgo) comes into force, California is ceded to the United States
- 1849.12.20 End of United States Military Government (USMG) in California, beginning of civil government
- 1850.09.09 California enters the Union as the 31st state
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A discussion of the power of Congress over territories in Downes v. Bidwell (1901)
That the power over the territories is vested in Congress [182 U.S. 244, 268] without limitation, and that this power has been considered the foundation upon which the territorial governments rest, was also asserted by Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 422, 4 L. ed. 579, 605, and in United States v. Gratiot, 14 Pet. 526, 10 L. ed. 573. So, too, in Church of Jesus Christ of L. D. S. v. United States, 136 U.S. 1 , 34 L. ed. 478, 10 Sup. Ct. Rep. 792, in holding that Congress had power to repeal the charter of the church, Mr. Justice Bradley used the following forceful language: "The power of Congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired. The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty."
. . . . . .
[ with reference to De Geofroy v. Riggs (1890)]
. . . it becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the "United States". by which term we understand the states whose people united to form the Constitution,
Not only did the people in adopting the 13th Amendment thus recognize a distinction between the United States and 'any place subject to their jurisdiction,' but Congress itself, in the act of March 27, 1804 (2 Stat. at L. 298, chap. 56), providing for the proof of public records, applied the provisions of the act, not only to 'every court and office within the United States,' but to the 'courts and offices of the respective territories of the United States and countries subject to the jurisdiction of the United States,
Unless these words are to be rejected as meaningless, we must treat them as a recognition by Congress of the fact that there may be territories subject to the jurisdiction of the United States, which are not of the United States.
. . . . . .
[ with reference to Johnson v. M'Intosh (1823) ]
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.
A discussion of a self-governing dominion under the United States Military Government in Neely v. Henkel (1901)
In Neely v. Henkel, 180 U.S. 109 , 45 L. ed. 448, 21 Sup. Ct. Rep. 302 (Jan. 14, 1901), the question was whether Cuba was a foreign country or foreign territory within the act of Congress of June 6, 1900 (31 Stat. at L. 656, chap. 793, U. S. Comp. Stat. 1901, p. 3591), [205 U.S. 257, 264] providing for the extradition from the United States of persons committing crimes within any foreign country or foreign territory or any part thereof, occupied or under the control of the United States. And it was held that Cuba was within this description.
-- as quoted in Pearcy v. Stranahan (1907)
Historical Background to the Spanish-American War:
- 1898.02.15 conflict between military forces of the two countries
- 1898.04.22 US declares war
- 1898.06.21 surrender of Spanish military forces in Guam
- 1898.07.17 surrender of Spanish military forces in Cuba
- 1898.08.12 surrender of Spanish military forces in Puerto Rico
- 1898.08.14 surrender of Spanish military forces in the Philippines
- 1898.12.10 Spain and US sign peace treaty
- 1899.04.11 Spanish-American Peace Treaty (Treaty of Paris) comes into force
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Note: Occupied Cuba was a self-governing dominion held under US Military Government which was given "trust territory" characteristics by the USA. In regard to Taiwan, there is a self-governing dominion by San Francisco Peace Treaty cession. Another nomenclature for this would be a "quasi-trusteeship" of insular status.
It must be recognized that any ceded territory coming under the administrative authority of the US Military Government is inalienably endowed with 'basic constitutional rights' by the US Supreme Court. These basic rights are life, liberty, and property of the Fifth Amendment and the basic equal protections of the 14th Amendment. These inalienable rights arise from a territorial status known as "unincorporated territory" and categorically it has expressly included all of "Occupied Cuba" in the past, from the coming into force of the Treaty of Paris on April 11, 1899, to the recognition of Cuban independence on May 20, 1902.
A discussion of military government in Madsen v. Kinsella (1952)
In speaking of the nature of military government, Colonel William Winthrop, in his authoritative work on Military Law and Precedents (second edition, 1920 reprint), says on page 800: "Military government . . . is an exercise of sovereignty, and as such dominates the country which is its theatre in all the branches of administration. Whether administered by officers of the army of the belligerent, or by civilians left in office or appointed by him for the purpose, it is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except in so far as the same may be permitted by him to subsist . . . . The local laws and ordinances may be left in force, and in general should be, subject however to their being in whole or in part suspended and others substituted in their stead -- in the discretion of the governing authority."
A discussion of constitutional restraints in Reid v. Covert (1956)
In Reid v. Covert, 351 U.S. 487 (1956), Justice Black in a plurality opinion of the US Supreme Court asserted that wherever the United States acts it must do so only "in accordance with all the limitation imposed by the Constitution . . . . Constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home."
A discussion of the applicability of of the Constitution in overseas territories in United States v. Verdugo-Urquidez (1990)
The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 .
In Dorr v. United States, 195 U.S. 138 (1904), we declared the general rule that in an unincorporated territory -- one not clearly destined for statehood -- Congress was not required to adopt "a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated." 195 U.S., at 149. Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id., at 148; Balzac, supra, at 312-313; . . . . And certainly, it is not open to us in light of the Insular Cases to endorse the view that every constitutional provision applies wherever the United States Government exercises its power.
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