Reports on the Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States

information and instruction regarding the fixed policy of the United States as to its treaty obligations. If such information is volunteered, it would be well for the consul-general to consider it confidential or refer it to the Secretary of State, before communicating it to the representatives of foreign nations as an authoritative utterance of the United States Federal Government.

I do not wish to be understood as reporting that the military governor of territory subject to military occupation may not in any case pass upon or interpret stipulations of a treaty. Many cases arise where he may do so. For instance, if an individual domiciled within or coming into the territory asserts a right to be exercised therein under a treaty, the military governor may determine if the exercise of such right is to be permitted and if the individual possesses it. But the question so presented is domestic and not foreign, and the action of the governor is quasi judicial and not political. In such instances he speaks for the military government of the Philippines and not the Federal Government of the United States.

The views expressed in the foregoing report were approved by the Secretary of War.

In response to the letter from the State Department, transmitting the note from the imperial ambassador of Germany at this capital, the Secretary of War advised the State Department as follows:

OCTOBER 15, 1900.

SIR: I have the honor to acknowledge the receipt of a communication from the State Department, dated August 15, 1900, transmitting a copy of a note addressed to the Secretary of State by the imperial German ambassador at this capital, wherein complaint is made against the orders of the military government of the Philippine Archipelago, whereby commercial intercourse with the inhabitants of the Sulu Islands was at one time prohibited and subsequently restricted to the ports in the possession of the military forces of the United States, in which ports it is subject to certain regulations.

I note your statement that you "shall be glad to transmit to the embassy your reply to its expressed hope that the military orders of which complaint is made will be rescinded."

Replying to your communication, I have the honor to state as follows:

The Sulu Islands are now subject to military occupation. The right of the commander of the occupying force to regulate or prohibit trade with territory so occupied is one of the recognized and well-received laws and usages of war and nations. (9 How. (U. S.), 615; Lieber's Instructions to American Armies in the Field, sec. 5, clause 1; Bluntschli, I, sec. 8; Manning, p. 167; Birkhimer, p. 204.)

In addition to the maintenance of military occupation of the Sulu Islands, the military forces of the United States are engaged in suppressing an insurrection in a portion of the Philippine Archipelago accessible from the Sulu Islands. The military authorities conducting the military operations against said insurrection were at one time of the opinion that a military necessity existed for prohibiting commercial intercourse between the Sulu Islands and the outside world. Thereupon Admiral

Dewey, as commander of the military forces of the United States in the Philippines, in June, 1899, issued the following order:

"All trade with the Philippines is prohibited, except with the ports of Manila, Iloilo, Cebú, and Bakalota. Ships are hereby warned to go nowhere else in the Philippines.'

Subsequently this order was modified by General Orders, No. 73, series of 1899, dated December 26, 1899; General Orders, No. 30, series of 1900, dated March 10, 1900, and General Orders, No. 34, series of 1900, dated March 13, 1900. Copies of said orders are herewith inclosed.

The military authorities in command of the United States military forces in the Philippines are of opinion that the restrictions and regulations upon trade with the Sulu Islands, now enforced pursuant to said orders, are essential to meet the military necessity occasioned by the insurrection.

These restrictions and regulations are emergency measures, and should be so considered. They are not intended as an evidence or declaration of the permanent policy or practice of the United States when the condition of peace shall prevail in the Philippines.

Very respectfully,

The SECRETARY OF STATE.

ELIHU ROOT, Secretary of War.

In response to the letter from the State Department transmitting the correspondence between the German consul and the United States consul at Singapore, the Secretary of War advised the State Department as follows:

OCTOBER 15, 1900.

SIR: I have the honor to repeat the acknowledgment of the receipt of your letter of April 17, 1900, and to answer the same as follows:

Your letter inclosed for the consideration of the Secretary of War a copy of the correspondence between the United States consul-general at Singapore and the German consul at Singapore in regard to trade with the inhabitants of the Sulu Archipelago.

The letter of the German consul is as follows:

"I have the honor on behalf of some German merchants who are desirous of trading in the Sulu Islands to request you kindly to inform me whether the right guaranteed to German (and other) merchants by Article IV of the treaty concluded between the Governments of Spain, Great Britain, and Germany March 7, 1885, to trade in those islands free and unmolested is recognized by the Government of the United States, or if any and what restrictions are placed on the carrying on of that trade."

It is to be noted that the German consul sought information as to whether or not the "Government of the United States” recognized certain rights of trade guaranteed by treaty concluded between the Governments of Spain, Great Britain, and Germany March 7, 1885.

The answer to this request involves the determination of certain questions as to the existing relations between the sovereignty of the United States and the respective sovereignties of Germany, Great Britain, and the other powers. Such questions are to be dealt with by the Federal Government of the United States, acting through that branch of the Federal Government to which our foreign relations are committed. If this view is correct, it would seem to follow that upon such request being received by the American consul, the proper course for him to pursue would be to refer it to the State Department for instruction and advice.

I note that in his letter to the United States consul-general the German consul

states that he makes the inquiry "on behalf of some German merchants who are desirous of trading in the Sulu Islands," and that he speaks of the right under the treaty as being "guaranteed to German (and other) merchants."

It may be that the purpose of said letter extended no further than to secure information as to the fact of whether or not the ports of the Sulu Islands were open to trade from the outside world. If this were the full extent of the inquiry, it was probably proper and permissible to refer such request for information to the military government of the Philippines. This was the course adopted and pursued by the United States consul-general who received the communication. Upon receiving the response of the military government, the United States consul-general wrote to the German consul as follows:

"I have the honor to communicate for your information the following extract of a telegram of date 14th November, 1899, and of letter of 10th December, 1899, received from his excellency Gen. E. S. Otis, military governor of the Philippine Islands, giving expression of his opinion on the subject:

[Telegram of 14th November, 1899.]

'United States maintain that protocols 1877, 1885, granting free trade in Sulu Archipelago, expired with transfer of sovereignty by Spain.”

[Letter dated Manila, 10th December, 1899.]

“Of course the former trade protocols between Spain, Great Britain, and Germany fall with the transfer of sovereignty under the late Paris treaty.”

“I would add that foreign vessels are not permitted to engage in the coasting trade and that the customs regulations in force in Manila apply to all other open ports of the Philippine Islands."

The military government of the Philippine Archipelago, maintained therein by the United States, is engaged in suppressing an insurrection in a portion of said Archipelago accessible from the Sulu Islands. The military authorities conducting the military operations against the insurrection were at one time of the opinion that a military necessity existed for prohibiting commercial intercourse between the Sulu Islands and the outside world. Thereupon Admiral Dewey, as commander of the military forces of the United States in the Philippines, in June, 1899, issued the following order:

"All trade with the Philippines is prohibited, except with the ports of Manila, Iloilo, Cebú, and Bakalota. Ships are hereby warned to go nowhere else in the Philippines."

The military authorities in command of the United States military forces in the Philippines are of opinion that the restrictions and regulations upon trade with the Sulu Islands now enforced pursuant to said orders are essential to meet the military necessity occasioned by the insurrection.

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In regard thereto, Birkhimer on Military Government says (p. 204)

"One of the most important incidents of military government is the regulation of trade with the subjugated district. The occupying State has an unquestioned right to regulate commercial intercourse with conquered territory. It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either policy or a proper attention to military measures may justify. While the victor maintains exclusive possession of the territory his title is valid. Therefore, the citizens of no other nation have a right to enter it without the permission of the dominant power. Much less can they claim an unrestricted right to trade there.”

This authority of the commander of the occupying force is not to be exercised in accordance with the existing treaty obligations of his Government nor in defiance thereof; it is to be exercised without reference thereto, and with reference solely to the purposes of the military undertakings in which he engaged.

The full purpose and extent of the existing restrictions and regulations of outside trade with the Sulu Islands are to provide for a military necessity, the existence of which affords them justification. Such rights of trade in said islands as are dependent upon trade treaties relate to the conditions of peace, and are properly to be held in abeyance until those conditions prevail in the Philippines. Such, at least, is the view entertained by me. If you are unable to agree with the views herein expressed I should be greatly obliged to you if you will favor me with the views entertained by you regarding this subject, as it is important that unnecessary complications be avoided.

The military governor of the Philippine Islands does not of course undertake to state the permanent tariff policy of the United States in those islands, or the position of this Government as to former treaties between Spain and other powers. His authority is limited to the temporary treatment of the subject during military occupation and his expressions should be regarded as so limited.

Yours, very respectfully,

ELIHU ROOT, Secretary of War.

The SECRETARY OF STATE.

IN RE CLAIMS MADE AGAINST THE UNITED STATES BY REASON OF THE MILITARY OPERATIONS, ENCAMPMENT OF TROOPS, CONDUCT OF SOLDIERS, ETC., IN PORTO RICO, CUBA, HAWAII, AND THE PHILIPPINES.

[Submitted February 6, 1901. Case No. 2491, Division of Insular Affairs, War Department.]

SYNOPSIS.

1. Aliens asserting claims for unliquidated damages against the Federal Government of the United States must present them to the State Department through diplomatic channels.

2. In 1874 Congress adopted the rule that it would not consider the claims of aliens except upon the request of the State Department.

3. A belligerent is not required to pay for damages to persons or property of enemies or neutrals which, being in the track of war, may be injured by military operations.

4. The United States is not liable for injuries resulting from the unauthorized acts of individual soldiers.

5. A sovereign nation is not ordinarily responsible to alien residents for injuries they receive on its territory from belligerent action, or from insurgents whom the sovereign could not control.

6. The United States, while exercising the rights of a belligerent, may occupy real property and seize personal property belonging to private individuals and apply to the use and benefit of the troops, without liability for compensation.

7. The right to impress the desired property may be waived and liability for compensation created by the action of the military authorities, if such action is taken prior to or at the time the property is devoted to the use of the Army and is sufficient to create a contract, express or implied. If such action is not taken at that time the military authorities cease to possess such authority and the waiver must be made by Congress.

8. The existence of a contract, express or implied, being established, the Secretary of War is authorized to settle and determine claims based thereon or arising therefrom.

SIR: I have the honor to acknowledge the receipt of your request for a report on the numerous claims made against the United States, of the character indicated in the title, now on file in the Insular Division, to the end that the final action of the War Department may be taken thereon.

In compliance with said request I have the honor to report as follows: These claims are made against the Federal Government of the United States. They are not made against one of the military governments. Examination leads me to the conclusion that in a majority of the cases, for want of jurisdiction to pass upon the merits, the action of the War Department must be confined to informing the claimant as to his proper remedy. As to a large portion of these claims, not only is the War Department without jurisdiction to settle the questions involved, but in addition there are no available funds with which the War Department could pay said claims if the liability of the United States and the amount thereof were established.

The want of jurisdiction arises from the fact that said claims are for unliquidated damages. The determination of unliquidated damages requires the exercise of judicial powers. It is well established that the Executive Departments of the United States Government do not possess judicial powers and therefore can not exercise them.

There is a recognized exception to this general rule, which will be considered hereinafter. Ordinarily, when a claim for unliquidated damages is presented to the War Department, the claimant is advised of the want of jurisdiction to determine his claim and is thereafter permitted to select his remedy, or the claim and accompanying documents are forwarded to Congress for consideration by that body.

The claimants in the cases under consideration presumably possess little, if any, knowledge of the distribution of powers among the several branches of our Government, and therefore a rejection of their claims without explanation would hardly be consistent with the candor and high regard for private rights which is expected from the Federal Government of the United States.

With but few exceptions, the reference of these claims to Congress

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Reports on the Law of Civil Government in Territory Subject to Military ...