of Congress, and may be administered by civilians or by military persons, appointed by the President, according to the requirements of the statutes. It is also the duty of Congress to pass all laws which are proper and fit to aid the President in carrying into effect his obligation to suppress rebellion and enforce the laws, to secure domestic tranquillity, and to guaranty to each State a republican form of government.* And as the creation and administration of military or provisional governments are essential means of accomplishing these objects, it would seem for this reason also to be the duty of Congress, in aid of the Commander-inChief, and without interfering with his military operations, to erect governments over the subjugated districts, clothed with powers adequate to administer the laws of war, subject to the Constitution and the statutes of the United States, and to such orders as the President may from time to time issue, not inconsistent therewith. Governments thus established rest not alone upon the military power of the President as Commander-in-Chief of the army and navy, but upon the war powers of Congress, and should be so organized as to endure until the people of these districts shall be again permitted to resume self-government, and be again clothed with their former political rights.+ Therefore, although the President may, while engaged in hostilities, and in the absence of laws restricting his authority, enforce belligerent rights against a public enemy, Congress also may establish rules and regulations which, without interfering with his powers. * Constitution, Art. 1, Sect. 8, Ch. 18. See ante, p. 269. †The model of our territorial governments, in time of peace, is the Ordinance of 13th July, 1787. See 3 Story, Com. on Const. 1312. Webster's Speeches, Jan. 1830, pp. 360-364. as commander of the army, it will be his duty to admin. ister. In a province to be subdued by soldiers, the only means by which the will of Congress, or the will of the head of the army can usually be carried into execution, is by force of arms. In one sense, all government, whether provisional or quasi civil, established under such circumstances, must assume a military character. In that view it can be controlled by Congress only through use of the military power of the army. Yet the President is bound to execute all laws which Congress has a right to make; and so far as the Legislature has the authority to interfere with or control the President by laws or by regulations, or by imposing upon him the machinery of provisional governments, so far he is bound to administer them according to statute. LIMITS OF POWER. CONFLICT BETWEEN THE WAR POWERS OF THE PRESIDENT AND THE LEGISLATIVE POWERS OF CONGRESS. Though the Executive, Legislative, and Judicial departments of our government are to a certain extent independent of each other, yet no one of these departments is without some control over the others. The legislature can make no law without the concurrence of the President, unless passed by two-thirds of the voters in both houses; and laws, when made, may be pronounced unconstitutional by the Supreme Judicial Court. The judiciary, in deciding purely political questions, are bound to follow the decisions of the Legislative or Execu tive departments, and are in other respects controlled by the action of the coördinate branches of the govern ment. The Executive can make treaties only by concurrence of the Senate; and most of the appointments to high offices must, to be valid, be made with its Congress cannot carry on advice and consent. The President cannot declare war; but Congress can. war; but the President can. and regulations concerning captures, and for the government and regulation of the land and naval forces, when in service, binding upon the President, whose duty it is to see all constitutional laws faithfully executed, although he is the supreme commander of the army and navy. Questions may therefore arise as to the limitation of the respective powers of the Commander-in-Chief in conducting hostilities, and the powers of Congress in controlling him, by virtue of this legislative right to make rules and regulations for the government of military forces, and respecting captures on land and sea. To determine how far Congress may interfere with and govern the military operations of the Executive, when the war power is employed in enforcing local government by martial law, without derogating from his power as Commander-in-Chief of the army, will require careful consideration, inasmuch as such government can be in fact maintained and enforced only by military, and not by legislative authority. HOW THESE GOVERNMENTS MAY BE TERMINATED. Military governments may be terminated by the commanding general at his will, by withdrawal of the officers who administer it. As it is in the power of the Legislative Department to declare war, and to provide or withhold 'the means of carrying it on, Congress also may, after hostilities shall have ceased, declaré or recognize peace, terminate military or provisional governments, or may regulate them and cause them to be modified or wholly withdrawn, whether originally erected by its own authority or by the war power of the President, and may institute civil territorial governments in their place. Or the people of any district, in which hostilities have ceased, having formed a new government for themselves, by permission of the United States, may be admitted into the Union as a State, and thus the military government will be displaced. But military governments are not of necessity terminated by a declaration of peace between belligerents, or by a cession of territory in dispute, but may be continued long after war ceases, by presumed assent of the President and of Congress. "The right inference," says Mr. Justice Wayne, in delivering the unanimous opinion of the Supreme Court, "from the inaction of both the President and of Congress, is, that it (the military government) 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 cause of delay, it must be presumed that the delay was consistent with the true policy of the Government." "California and New Mexico were acquired by conquest confirmed by cession. During the war they were governed as conquered territory, under the law of nations, and in virtue of the belligerent rights of the United States as the conqueror, by the direction and authority of the President as Commander-in-Chief. By the ratification of the treaty of Guadalupe-Hidalgo, on the 20th of May, 1848, they became a part of the United States, as ceded conquered territory. The civil governments established in each during the war, and existing at the date of the treaty of peace, continued in *Note to Forty-third Edition. See note on Military Government and Reconstruction, pp. 427-451. † See Index, "Reconstruction.” Cross v. Harrison, 16 How. 193. 40 operation after that treaty had been ratified. California, with the assent and coöperation of the existing government, formed a constitution which was ratified by its inhabitants, and a State government was put in full operation in December, 1849, with the implied assent of the President, the officers of the existing government of California publicly and formally surrendering all their powers into the hands of the newly-constituted authorities. The constitution so formed and ratified was approved by Congress, and California was, on the 9th of September, 1850, admitted into the Union as a State. New Mexico also formed a constitution, and applied to Congress for admission; the application was not granted, but on the 9th of September, 1850, New Mexico, and that part of California not included within the limits of the new State, were organized into territories, with new territorial governments, which took the place of those organized during the war, and existing on the restoration of peace." * Such governments, founded only in and sustained by war power, are, when peace is officially recognized, entirely within the control of Congress. When the enemy have laid down their arms, and make no further opposition to the execution of our laws, there can exist no reason why the President should not obey and enforce the rules and statutes of Congress, regulating his own conduct and the military governments and military tribunals established by him. No reason could be offered to explain why he should not make complete and unquestioning submission to the will of the people. His refusal to do so would subject him to impeachment. *Halleck, Int. Law, 828, 829. |