DEPARTMENT OF JUSTICE,
Watts/#,ington, D.., July 1, 1903.
Judge CHARLES E. MAGCOON,
Lanw OCfficerl, ltreau of 1nstlar' Affars,
Wa' Department.
DEAR SIR: There is pending in the Court of Claims the
case of Warner, Barnes & Co., Limited, v. United States, No.
22757, in which the claimant asks for the refund of certain
duties exacted and collected by officials of the military government of the Philippine Islands, acting under the authority and
pursuant to the instructions of the War Department, upon
goods imported by the claimant into the Philippine Islands
between December 10, 1898, and March 2, 1902. The War
Department has heretofore coopel'ated with this Department
in the presentation of evidence, both documentary and oral, on
the part of the United States in this case, and by mutual agreement the defense of the case will be rested upon the proposition that the duties complained of were exacted as a military
necessity, there existing during the time a state of war in the
Philippine Islands. The evidence is now closed and the case
has been briefed by the attorneys for the claimant and awaits
the brief of the United States. As this is a question in which
the War Department is vitally interested, the validity of its
action in the premises being directly called in question by the
claimant, and as it is a question which has been specially and
exhaustively examined by yourself at the request of the Secretary of War, as appears in the report of such investigation
appearing in the recent volume of reports submitted by you to
the Secretary of War, I am convinced that there is no person
better qualified to present this question on behalf of the
United States to the Court of Claims than yourself. I accordingly have the honor to request that, if you can find time to
do so, you will prepare a brief setting forth the views of the
War Department upon this question to be presented on behalf
of the United States, and sign the same as counsel in the case.
Yours, very respectfully,
Louis A. PRADT,
Assistan t Attorney- General.
Pursuant to the foregoing request, and by direction of the
Secretary of War, the subjoined brief and argument was
prepared and filed.
CHARLES E. MAGOON,
Law Oficer, Bureau of JInsular Affairs, IWar Department.




n the ourtof 'O ainms ofJ the  ni te  tate.
WARNER, BARNES & Co.,
Limited, claimant,   No 22757
THE UNITED STATES.
BRIEF AND ARGUMENT FOR THE UNITED STATES.
The action is instituted to re(quire the Federal
Government of the United States to pay to the
claimant, an English corporation, out of the public moneys of the United States and from moneys
in the Treasury of the United States, "the sum of
$162,253.29 in Mexican silver."  (See petition,
p. 9.)
The claimant asserts that a liability of the
Federal Government of the United States for
the payment of said sum of money is created by
the alleged fact that during the period of time
elapsing from December 10, 1898, the date of
the Treaty of Peace between Spain and the
United States, and March 8, 1902, the date of the
enactment of the act of Congress entitled "An act
temporarily to provide revenue for the Philippine
1




.2
Islands, and for other purposes," the officials
engaged in administering the affairs of civil government in the Philippine Islands required the
claimant to pay to the government of the Philippine Islands the several sums set forth in the
petition herein, as a condition precedent to bring-,
ing certain goods, wares, and merchandise into
the territory subject to the jurisdiction of the government whose affairs were being administered by
said officials, to wit, the Philippine Islands.
I.
Incompetency of the claimant to maintain the action.
It is familiar doctrine of the common law, that
the sovereign can not be sued in its own courts
without its consent.  This doctrine rests upon
reasons of public policy-the inconvenience and
danger that would follow from any different rule.
United States v. Clark, 8 Peters, 436, 443.
United States v. McLemore, 4 Howard, 286.
Hill v. United States, 9 Howard, 386.
Case v. Terrell, 11 Wallace, 199.
The Siren, 7 Wallace, 152.
Stanley v. Schwalby, 147 U. S., 508, 512.
This doctrine is of especial force and entitled to
constant consideration in the United States, for,
under our form of government, the three branchesexecutive, legislative, and judicial-are coequal,
and the maintenance of our system depends upon
the independence of each branch from control by
either one or both of the other branches.




3


Aliens derive the right of suing the Federal Government of the United States from the provisions
found in section 1068 of the U. S. Revised Statutes, as follows:
Aliens, who are citizens or subjects of any
government which accords to citizens of the
United States the right to prosecute claims
against such government in its courts, shall
have the privilege of prosecuting claims
against the United States in the Court of
Claims, whereof such court, by reason of
their subject-matter and character, might
take jurisdiction.
The attention of the court is directed to the
proposition that the term "aliens" signifies natural persons and does not include corporations.
Bouvier's Law   Dictionary defines "alien" as
follows:
In England, one born out of the allegiance
of the King. In the United States, one born
out of the jurisdiction of the United States,
and who has not been naturalized under
their Constitution and laws. (2 Kent, 50.)
See alsoMcGregor v. McGregor, Keyes (N. Y.),
134.
Ex parte Dcanson, 3 Bradf. Surr. R.
(N. Y.), 136.
Lynch v. Clark, 1 Sandf. Ch. (N. Y.), 669.
An alien is a subject that is born out of
the ligeance of the King, and under the
ligeance of another.
Calvin's Case (7 Coke, 16).




4


Alienage, like citizenship, results from  the
phenomena of nature called birth, and is a condition relating to natural persons. To extend the
provisions of section 1068 to include corporations
formed under English laws would be as unjustifiable as to extend the provisions of the naturalization laws to include manikins manufactured in *
foreign countries.
Section 2165, Revised Statutes of the United
States, provides as follows:
An alien may be admitted to become a
citizen of the United States in the following
manner, and not otherwise.
The term " alien " as used in said section could
not be construed to include corporations.
Congress recognized the distinction to which
attention is called, in the act approved March 3,
1887, entitled "An Act to restrict the ownership
of real estate in the Territories to American citizens, and so forth" (24 Stats. at L., 476), which
act provides as follows:
Be it enacted by the Setnate and Houtse of
Representatives of the United States of Ameraiec ic Congress assembled, That it shall be
unlawful for any person or persons not citizens of the United States, or who have not
lawfully declared their intention to become
such citizens, or for any corporation not
created by or under the laws of the United
States or of some State or Territory of the
United States, to hereafter acquire, hold,
or own real estate so hereafter acquired, or




any interest therein, in any of the Territories of the United States or in the District
of Columbia, except such as may be acquired by inheritance or in good faith in
the ordinary course of justice in the collection of debts heretofore created: Provided,
That the prohibition of this section shall
not apply to cases in which the right to
hold or dispose of lands in the United States
is secured by existing treaties to the citizens or subjects of foreign countries, which
rights, so far as they may exist by force of
any such treaty shall continue to exist so
long as such treaties are in force, and no
longer.
It will be noticed that Congress did not consider
that corporations were to be included in the term
"persons not citizens" and therefore specifically
mentioned them.
Therefore the United States contends that the
claimant, being an English corl)oration, is not
competent to institute and maintain this action in
a court of the United States, for the reason that
section 1068, U. S. Rev. Stat., does not confer the
right to maintain such action in this court upon
foreign corporations.
II.
The case stated in tile petition is one "sounding in
tort" and therefore not within the jurisdiction of the
United States Court of Claims.
Under the provisions of section 1068 (U. S.
Rev. Stats.) the right granted aliens of prosecuting claims against the United States in the Court




6
of Claims is confined to claims "whereof such
court, by reason of their subject-matter and character, might take jurisdiction."
The act approved March 3, 1887, entitled "An
act to provide for the bringing of suits against the
Government of the United States" (24 Stat., 505),
providesThat the Court of Claims shall have jurisdiction to hear and determine the following
matters:
First. All claims founded upon the Constitution of the United States or any law of
Congress, except for pensions, or upon any
regulation of an Executive Department, or
upon any contract, expressed or implied,
with the Government of the United States,
or for damages, liquidated or unliquidated,
in cases not sounding in tort, in respect of
which claims the party would be entitled to
redress against the United States either in
a court of law, equity, or admiralty if the
United States were suable."
The averments of the claimnant's petition respecting the acts of the officials of the Philippine Islands,
by reason of which acts the claim is alleged to
have accrued, definitely negative the creation of a
contract and insist that said acts were tortious.
If such be the case, then this claim is one for unliquidated damages sounding in tort, and therefore
not within the jurisdiction of this honorable court.
The averments of the petition to which reference




7
is made are those appearing in paragraphs 9, 13,
and 14 of claimant's petition, and are as follows:
9. That upon the arrival at the said port
of Manila, and at the other ports in the
Philippine Islands, of such articles, the
growth, produce, or manufacture of the several States, imported by and consigned to
said firm of Warner Barnes & Co., and to
the petitioner from the said ports of New
York and San Francisco, and from other
ports in the several States of the United
States, the military officer of the United
States then acting as collector of customs,
and the subordinate military officers acting
under his orders, took possession of such
articles and placed them  under military
guard, in the manner provided for in said
Customs Tariff and Regulations, and proceeded to assess and levy duties thereon at
the rates thereby established, and refused to
deliver possession of the same to said firm
and to the petitioner until after the payment in cash of the duties so assessed and
levied, and threatened in the event of the
default in the payment of such duties to
seize such goods with the military forces at
their command and to sell the same for the
payment of the duties in the manner provided for by said Customs Tariff and Regulations. And the said firm and the petitioner,
respectively, were thereupon obliged to and
did pay, under duress, and in order to obtain
possession of their goods, and in order to
carry on their business as aforesaid, the




8


duties so assessed, and upon such payment
the said goods were released from the custody of the military authorities and delivered
to the said firm and to the petitioner.
13. That, as the petitioner is advised by
counsel, the proper construction of the said
order of the President of July 12, 1898,
and of the customs tariff and regulations
thereby established, as amended from time
to time, is that they ceased to apply to all
articles imported and brought into the several ports in the Philippine Islands, and
more particularly the port of Manila, from
ports in the several States of the United
States at the moment the United States
ceased to be a foreign country with respect
to the Philippine Islands: That is to say, on
December the 10th, 1898, the date when the
said treaty of peace was signed. And that
all the articles and produce so imported by
the petitioner at said port of Manila, as
specified in the annexed schedules marked
respectively "A" and "B," were not subject to any import duties and were entitled
to free entry into the said port of Manila.
14. That, as the petitioner is advised by
counsel, the imposition and collection of said
duties upon imports from said firm of
Warner, Barnes & Co., and from this petitioner at the port of Manila as aforesaid, in
the amounts set forth in the schedules
hereto annexed and marked respectively
"A" and "B," were in violation of the
rights and privileges secured to the peti



9


tioner as a subject of the King of Great
Britain, under and by virtue of the provisions of the Constitution of the United
States and of the treaties between the
United *States and the Kingdom of Great
Britain and the laws of the United States,
and that the collection of such import duties
by the military authorities as aforesaid in
the amounts specified in said schedules, or
in any other amount, is unauthorized, illegal,
and in violation of the laws and Constitution of the United States and the treaties
between the United States and Great Britain,
and the petitioner claims that it is entitled
to recover said moneys from the United
States, and bases its claim thereto upon the
United States Constitution and the said
treaties and the laws of the United States.
In Gibbonts v. United States (8 Wall., 269) the
court determined as follows (syllabus):
The Government is not liable on an implied assumpsit for the torts of its officer
committed while in its service, and apparently for its benefit.
To admit such liability would involve the
Government in all its operations, in embarrassments, losses, and difficulties, subversive of the public interest.
When the injury to individuals in such
cases merits redress by the Government, the
remedy is with Congress. The statute does
not confer jurisdiction on the Court of
Claims.




10
In the body of the opinion the court say (p. 274):
But it is not to be disguised that this case
is an attempt, under the assumption of an
implied contract, to make the Government
responsible for the unauthorized acts of its
officer, those acts being in themselves torts.
No Government has ever held itself liable to
individuals for the misfeasance, laches, or
unauthorized exercise of power by its officers and agents.
In the language of Judge Story: " It does
not undertake to guarantee to any person
the fidelity of any of the officers or agents
whom it employs, since that would involve
it in all its operations in endless embarrassments, and difficulties, and losses, which
would be subversive of the public interests."
" The creation by act of Congress of a court
in which the United States may be sued
presents a novel feature in our jurisprudence,
though the act limits such suits to claims
founded on contracts, express or implied,
with certain unimportant exceptions. But
in the exercise of this unaccustomed jurisdiction the courts are embarrassed by
the necessary absence of precedent and
settled principles by which the liability of
the Government may be determined. In a
few adjudged cases where the United States
was plaintiff the defendants have been permitted to assert demands of various kinds
by way of set-off, and these cases may afford
useful guidance where they are in point.
The case of United States v. Kirpa trick and
Dox v. The Postmaster-General are of this




11


class, and establish the principle that even
in regard to matters connected with the
cause of action relied on by the United
States, the Government is not responsible
for the laches, however gross, of its officers.
The language of the statutes which confer jurisdiction upon the Court of Claims
excludes by the strongest implication demands against the Government founded on
torts. The general principle which we have
already stated as applicable to all governments forbids, on a policy imposed by
necessity, that they should hold themselves
liable for unauthorized wrongs inflicted by
their officers on the citizen, though occurring
while engaged in the discharge of official
duties.
In the absence of adjudged cases determining how far the Government may be
responsible on an implied assumpsit for acts
which, though unauthorized, may have been
done in its interest and of which it may
have received the benefit, the apparent hardships of many such cases present strong
appeals to the courts to indemnify the suffering individual at the expense of the
United States.
These reflections admonish us to be cautious that we do not permit the decisions
of this court to become authority for the
righting, in the Court of Claims, of all
wrongs done to individuals by the officers
of the General Government, though they
may have been committed while serving that
Government and in the belief that it was for




12


its interest.  In such cases, where it is
proper for the nation to furnish a remedy,
Congress has wisely reserved the matter for
its own determination. It certainly has not
conferred it on the Court of Claims.
See also Dennis v. United States, 2 Ct.
Cls., 210.
It is true that, in Dooley v. United States, 182
U. S., 222,228, the court sustained the jurisdiction
of the circuit court of the United States for the
southern district of New York to hear and determine that case as a court of claims.
In the case at bar a number of matters are urged
for consideration presenting questions that were
not involved or not considered in the Dooley case.
These matters are amply sufficient to distinguish
the case at bar from the Dooley case and to require
a different ruling; if not that, at least a further
examination of the argument upon which the decision in that case was based.
The first difference to which attention is called
is that between the averments of the petition in
the Dooley case respecting the character of the
acts of which complaint was made and the averments of the petition in the case at bar, above
quoted. The averments in the Dooley case were
as follows (see Par. XIII and XV petition in Dooley
v. United States):
XIII. * * * that during the period
aforesaid the plaintiffs, Dooley, Smith &
Company, exported from the port of New
York, in the State of New York, to the




13
plaintiff, Henry W. Dooley, as their agent
in the city of San Juan, Porto Rico, aforesaid, certain goods, wares, and merchandise,
and the said Henry W. Dooley entered such
goods or caused the same to be entered for
the plaintiffs, and as their agent at the port
of San Juan, in the island of Porto Rico,
and thereupon duties were assessed and
levied upon said goods by the officer of the
United States Army to whom charge of the
collection of such duties had been given by
the military  authorities of the United
States, to wit, Maj. (afterwards Lieut. Col.)
Charles L. Davis, of the Eleventh United
States Infantry; that thereafter said duties
were paid by the plaintiff, Henry W. Dooley,
or his agent for the plaintiffs, or by his
agent il behalf of the plaintiffs, under protest and by comlulsion of the UnTited States
military authorities and in order to enable
the plaintiffs to obtain such goods from the
custody of the United States.:::':::
XV. The plaintiffs further allege that, as
they are informed by counsel, the imposition
and collection of the duties aforesaid are in
violation of the rights and privileges secured
to the plaintiffs as citizens of the United
States and of the State of New York, under
the Constitution of the United States of
America, and that the imposition and collection of such duties are in violation of the
treaty of peace between the United States
and Spain, hereinbefore referred to, and of
the Constitution of the United States.




14
It will be noticed that Dooley voluntarily complied with the requirements of the tariff regulations prevailing at that time in Porto Rico, and
' entered or caused the same to be entered  * *  *
at the port *       *  and thereupon duties were
assessed and levied upon said goods * * * that
thereafter said duties were paid under protest
*   *                                              -
In other words, Dooley assented to the action of
the customs authorities and protected his rights by
a protest against their authority to require and
receive the payments of the money. His voluntary action may possibly justify a holding that he
thereby evidenced a sufficient assent to create a
contract relation with the Government receiving
the money, and therefore the subsequent action of
the customs officials in retaining possession of the
goods until the duties were paid did not constitute a tort against him.
The claimant herein does not show compliance
and protest. It alleges seizure of the goods by
force, the placing of a military guard thereover, a
refusal to deliver goods to the owner, threats to
seize said goods by military force and sell them,
and that claimant was "obliged to and did pay,
under duress, and in order to obtain possession of
their goods, and in order to carry on their business" (par. 9), and that this was done at a time
when said goods "were not subject to any import
duties and were entitled to free entry into the said
port of Manila" (par. 13).




15
In the Dooley case the conditions with which
the military government of Porto Rico was called
upon to deal were alleged to be as follows (Par.VI):
VI. That prior to the signing of the said
protocol and in the month of July, 1898,
after the first landing of the military forces
of the United States upon the said island of
Porto Rico, there were a few skirmishes
between the United States forces and the
Spanish forces stationed on said island, but
that all hostilities of every kind ceased from
and after the 12th day of August, 1898, the
date of the signing of the protocol as aforesaid, and from that date down to the present time there have been no hostilities of
any kind iupon said island and no military
operations of any kind have been conducted
by the United States forces against the
Spanish forces or against any other hostile
forces on said island, but that immediately
upon the signing of said protocol, and as
therein provi(ded, the said island was abandoned by Spain and her possession and sovereignty thereof relinquished, and all the
Spanish forces were immediately withdrawn
and the said island was evacuated and all
public property on said island was delivered
to and taken possession of by the United
States, and said island has ever since been
and now is in the possession and under the
sovereignty of the United States; and since
the 12th day of August, 1898, the said island
has been and now is in a condition of peace
and the inhabitants thereof have been in
8812-03   2




16


the enjoyment of civil rights, except as
such rights have been affected by certain
orders of the President and of the War
Department and of the military forces of
the United States, more particularly the
orders for the collection of duties herein
referred to.
The existence of these conditions in Porto Rico
were of far reaching influence and control in determining the decision in the Dooley case. The
important question in that case, as to the case at
bar, was the question as to the limitations upon
the exercise of legislative authority by the President. In that opinion Mr. Justice Brown says
(p. 234):
His power to administer would be absolute, but his power to legislate would not
be without certain restrictions. In other
words, they would not extend beyond the
necessities of the case.
The petition in the case at bar does not set forth
the conditions respecting social quietude and public peace with which the military government of
the Philippine Islands was called upon to deal and
does not assert that they were of the kind and
character described as existing in Porto Rico.
The duties involved in the Dooley case were
arranged by the court into three classes (p. 230):
(1) The duties prescribed by General
Miles under order of July 26, 1898, which
merely extended the existing regulations;
(2) the tariffs of August 19, 1898, and Feb



17
ruary 1, 1899, prescribed by the President
as Commander in Chief, which continued in
effect until April 11, 1899, the date of the
ratification of the treaty and the cession of
the island to the United States; (3) from
the ratification of the treaty to May 1, 1900,
when the Foraker Act took effect.
The collection of the duties included in classes
1 and 2 was sustained. The collection of the duties in class 3 was not sustained.
The collection of the duties included in classes
1 and 2 were sustained by the court on the ground
that the collection was made by authority derived
from the fact that technically the condition of war
prevailed in Porto Rico. Respecting the effect of
that condition Mr. Justice Brown says (p. 230):
There can be no doubt with respect to the
first two of these classes, namely, the
exaction of duties under the war power,
prior to the ratification of the treaty of
peace.     *  *  In adopting this method,
General Miles w1las fully justified by the lawvs
of war.
The laws of war are operative in domestic warfare, and acts performed pursuant thereto are
justified thereby equally with acts of like character
performed in foreign war.
The duties included in class 3 were collected
under the same orders of the President as were
those in class 2.




18
In sustaining the jurisdiction of the court in the
Dooley case, Mr. Justice Brown says (p. 228):
We think the case is one within the first
class of cases specified in the Tucker Act, of
claims founded upon a law of Congress,
namely, a revenue law, in respect of which
class of cases the jurisdiction of the Court
of Claims, under the Tucker Act, has been
repeatedly sustained.
If the orders of the President, respecting the
exaction of duties in Porto Rico, dated August 19,
1898, and February 1, 1899, have the force and
effect of a law of Congress, and thereby justify a
claimant in bringing and maintaining in the Court
of Claims a suit based on a payment of duties required by said orders, must not said orders have
the force and effect of a law of Congress in justifying a collection of duties required thereby? It
is now the settled law that Congress may provide,
by appropriate legislation, for the collection of
customs duties on goods brought from a State of
the Union into Porto Rico or the Philippine
Islands. If the President's orders are equivalent
to an act of Congress for one purpose, why not for
the other?
There are other differences between the case at
bar and the cases which arose in Porto Rico, which
differences will be referred to at more appropriate
points in the argument; but the foregoing seem
to justify this court in applying in this case the
test of jurisdiction applied in the following cases:




19
Schillinger v. United States, 155 U. S., 163; Hill v.
United States, 149 U. S., 593; United States v.
Jones, 131 U. S., 1.
In Schillinger v. United States (155 U. S., 163 -166) the court say:
The United States can not be sued in
their courts without their consent, and in
granting such consent Congress has an
absolute discretion to specify the cases and
contingencies in which the, liability of the
Government is submitted to the courts for
judicial determination. Beyond the letter
of such consent the courts may not go, no
matter how beneficial they may deem or in
fact might be their possession of a larger
jurisdiction over the liabilities of the Government.
The court further say (pp. 167, 168):
Under neither of these statutes had or
has the Court of Claims any jurisdiction of
claims against the Government for mere
torts; some element of contractual liability
must lie at the foundation of every action.
In Gibbons v. Uinited States (8 Wall., 269,
275) it was said: "The language of the
statutes which confer jurisdiction upon the
Court of Claims excludes by the strongest
implication demands against the Government founded on torts. The general principle which we have already stated as
applicable to all governments forbids, on
a policy imposed by necessity, that they
should hold themselves liable for unauthorized wrongs inflicted by their officers on the




20


citizen, though occurring while engaged in
the discharge of official duties." And,
again, in Morgan v. United States (14 Wall.,
531, 534): " Congress has wisely reserved to
itself the right to give or withhold relief
where the claim is founded on the wrongful
proceedings of an officer of the Government."
The rule thus laid down has been consistently followed by this court in many
cases up to and including the recent case of
Hill v. United States (149 U. S., 593, 598).
It is said that the Constitution forbids
the taking of private property for public
uses without just compensation; that therefore every appropriation of private property
by any official to the uses of the Government, no matter however wrongfully made,
creates a claim founded upon the Constitution of the United States and within the
letter of the grant in the act of 1887 of the
jurisdiction to the Court of Claims. If that
argument be good, it is equally good applied
to every other provision of the Constitution
as well as to every law of Congress. This
prohibition of the taking of private property
for public use without compensation is no
more sacred than that other constitutional
provision that no person shall be deprived
of life, liberty, or property without due
process of law. Can it be that Congress
intended that every wrongful arrest and
detention of an individual, or seizure of his
property by an officer of the Government,




21


should expose it to an action for damages
in the Court of Claims? If any such breadth
of jurisdiction was contemplated, language
which had already been given a restrictive
meaning would have been carefully avoided.
It is true also that to jurisdiction over
claims founded "upon any contract, expressed or implied, with the Government
of the United States," is added jurisdiction
over claims " for damages, liquidated or unliquidated," but this grant is limited by the
provision "in cases not sounding in tort."
This limitation, even if qualifying only the
clause immediately preceding, and not extending the entire grant of jurisdiction
found in the section, is a clear indorsement
of the frequent ruling of this court that
cases sounding in tort are not cognizable in
the Court of Claims.
That this action is one sounding in tort
is clear. It is in form one to recover damages. The petition charges a wrongful appropriation by the Government against the
protest of the claimants, and prays to recover the damages done by such wrong.
The successive allegations place the parties
in continued antagonism to each other, and
there is no statement tending to show a
coming together of minds in respect to anything. It is plainly and solely an action
for an infringement, and in this connection
reference may be made to the statutory
provision (Rev. Stat., ~ 4919) of an action
on the case, as the legal remedy for the
recovery of damages for the infringement




22


of a patent. If it be said that a party may
sometimes waive a tort and sue in assumpsit,
as on an implied promise, it is technically a
sufficient reply to say that these claimants
have not done so. They have not counted
on any promise, either express or implied.
III.
If this action be for the recovery of specific property by
virtue of superior proprietary right, then claimant has
failed to adduce evidence sufficient to sustain a judgment
for restitution against the United States.
The claimant recognizes the structural weakness
of the appliance with which it has undertaken to
secure possession of public moneys of the United
States, and attempts to strengthen it by an allegation as follows:
11. That after collecting the amounts of
duties so assessed and levied upon the
imports of said firm of Warner, Barnes &
Co., and of this petitioner, the said military
officers, acting as collectors of customs
during the period herein referred to, paid
the same over to the United States, and said
amounts of money are now in the possession
of the United States.
It will be noticed that the claimant does not
allege that the money exacted has been expended
for the use and benefit of the Federal Government
of the United States. Were such averment made,
the action would be of the nature of a suit for
conversion, and, if successful, the judgment could
be satisfied and discharged with ordinary legal
tender.




23
The averments of said paragraph 11 state a case
of the nature of an action in replevin or a trial of
the rights of property. The claimant asserts that
there "are now in the possession of the United
States" certain moneys the proprietary rights to
which are vested in the claimant and not in the
United States; that it is entitled to the immediate
possession of its said property and seeks the
assistance of this court in securing restoration.
In this view the case is one of a proprietor seeking
to follow and recover his property in the hands of
one who unlawfully retains possession thereof.
If the plaintiff in an action of this character
recovers judgment, such judgment can be satisfied
only by the restoration of the particular and specific property which was the subject of the litigation, for such action is not for the recovery of
damages. The case is the same as though a claimant should appear and assert that he owned a horse
which had been taken from him by an official of
the Federal Government of the United States
without authority of law, that said horse was now
in the possession of the United States and he
demands the return of said horse to him as the
owner, and as having the superior right to possession of that particular animal. Such a claimant
could not secure a judgment requiring that the
United States should turn over to him a horse, but
the judgment, if secured, would order the restitution of the horse which was the subject of dispute.




24


Attention is directed to this phase of the claimant's contention, that due consideration may be
given to the fact that the monies collected from
the claimant as duties and taxes on articles brought
into the territory of the Philippine Islands were
collected by the officials administering the affairs
of civil government in said territory and were
expended by said officials in providing for the
necessities of civil government in said territory
and were not paid over to the United States, and
are not now and never have been in the possession
of the United States.
It devolves upon the claimant, under said averment, to show conclusively that the monies it
seeks to recover are now in the Treasury of the
United States.
In United States v. Ross, 92 U. S., 281, 282, the
court say:
It is incumbent upon a claimant under the
captured or abandoned property act to establish by sufficient proof that the property
captured or abandoned came into the hands
of a Treasury agent; that it was sold; that
the proceeds of the sale were paid into the
Treasury of the United States, and that he
was the owner of the property and entitled
to the proceeds thereof. All this is essential
to show that the United States is a trustee
for him, holding his money. That there is
in the Treasury a fund arisen out of the
sales of property captured or abandoned, a
fund held in trust for somebody, and that




25


the claimant's property, after capture or
abandonment, came into the hands of a
quartermaster of the Army or a Treasury
agent is not sufficient. There must be evidence connecting the receipt of it by the
Treasury agent with the payment of the
proceeds of sale of that identical property
into the Treasury. We do not say that the
evidence must be direct. It must, however,
be such as the law recognizes to be a legitimate medium of proof, and the burden of
proof rests upon the claimant who asserts
the connection.
In the present case the Court of Claims
has not found as a fact that the claimant's
cotton came into the hands of a Treasury
agent, that it was sold, and that the proceeds of that cotton were paid into the Treasury.  No connection between the cotton
captured and the fund now held by the
United States has been established. Certain facts have been found, and from them
it was inferred, as matter of law, that other
facts existed; and upon the facts thus inferred the court gave judgment.
We think that in this there was error.
The claimant owned in May, 1864, 31 bales
of cotton, then in a warehouse in Rome,
Ga. On the 18th of that month Rome was
captured by the United States forces, and
shortly afterwards the cotton was removed
on Government wagons to a warehouse adjoining the railroad leading from Rome to
Kingston, and connecting there with a road
leading thence to Chattanooga. Whether




26


it was the only cotton in that warehouse is
not found, but it is inferable from the other
facts found that it was not. Subsequently
(but how long afterwards does not appear)
all of the cotton in that warehouse was
shipped on the railroad to Kingston, the
road being then in the possession of the military authorities. It is next shown that cotton (some cotton) arrived in Kingston from
Rome before August 19, 1864, and was forwarded to Chattanooga; that, on the 19th
of August, 42 bales were received at Chattanooga from the quartermaster at Kingston; that thence they were shipped to
Nashville, where they were received as
coming from Kingston, turned over to the
Treasury agent, and sold. The proceeds of
sale were paid into the Treasury, and no
title to these 42 bales has been asserted by
third persons.
Such were the facts found; and from them
the court deduced, not as a conclusion of
fact, but as a presumption of law, that the
31 bales removed on Government wagons to
the warehouse immediately adjoining the
railroad at Rome, shortly after May 18,1864,
were a part of the 42 bales received at Nashville on the 24th of August, four months after -
wards, and there turned over to the Treasury
agent. It is obvious that this presumption
could have been made only by piling inference upon inference and presumption upon
presumption. Because the 31 bales of the
claimant were taken to the warehouse alongside of the railroad at Rome in May, 1864,




27


and the cotton in that warehouse afterwards, at some unknown time (whether
before or after August 19 does not appear),
was shipped on the road to Kingston, it is
inferred that the claimant's cotton was part
of the shipment. Because somebody's cotton (how much or how little is not shown)
arrived at Kingston from Rome at some time
not known, and was forwarded to Chattanooga before the 19th of August, 1864, it is
inferred that the claimant's 31 bales, presumed to have reached Chattanooga, thus
arrived and were forwarded; and because
42 bales were received at Chattanooga on
that day from the quartermaster at Kingston, it is inferred that the claimant's bales
were among them. These seem to us to be
nothing more than conjectures. They are
not legitimate inferences, even to establish
a fact; much less are they presumptions of
law. They are inferences from inferences;
presumptions resting on the basis of another
presumption. Such a mode of arriving at
a conclusion of fact is generally, if not universally, inadmissible. No inference of fact
or of law is reliable drawn from premises
which are uncertain. Whenever circumstantial evidence is relied upon to prove a
fact the circumstances must be proved and
not themselves presumed. Starkie on Evidence, page 80, lays down the rule thfus: " In
the first place, as the very foundation of indirect evidence is the establishment of one
or more facts from which the inference is
sought to be made, the law requires that




28


the latter should be established by direct
evidence, as if they were the very facts in
issue."  It is upon this principle that courts
are daily called upon to exclude evidence as
too remote for the consideration of the jury.
The law requires an open, visible connection between the prinicipal and evidentiary
facts and the deductions from them, and
does not permit a decision to be made on
remote inferences. (Best on Evid., p. 95.)
A presumption which the jury is to make is
not a circumstance in proof; and it is not,
therefore, a legitimate foundation for a presumption. There is no open and visible
connection between the fact out of which
the first presumption arises and the fact
sought to be established by the dependent
presumption. (Douglas v. Mitchell, 35 Penn.
St., 440.)
The Court of Claims thought the facts
found by them entitled the claimant to the
legal presumption said by this court to exist
in Crussell's Case, 14 Wall., 1; and therefore
determined as a conclusion of law that the
cotton taken from the claimant was a part
of that transmitted to Nashville and turned
over to the Treasury agent and sold. We
think Crussell's Case does not justify such a
conclusion. Because property was captured by a military officer and sent forward
by him, and because there is an unclaimed
fund in the Treasury derived from sales of
property of the same kind as that captured,
because omnia presumuntur rite esse acta,
and officers are presumed to have done their




29


duty, it is not the law that a court can conelude that the property was delivered by
the military officer to a Treasury agent, that
it was sold by him, and that the proceeds
were covered into the Treasury. The presumption that public officers have done
their duty, like the presumption of innocence, is undoubtedly a legal presumption;
but it does not supply proof of a substantive
fact. Best, in his Treatise on Evidence, section 300, says: " The true principle intended
to be asserted by the rule seems to be that
there is a general disposition in courts of
justice to uphold judicial and other acts
rather than to render them inoperative;
and with this view, where there is general
evidence of facts having been legally and
regularly done, to dispense with proof of
circumstances, strictly speaking, essential
to the validity of those acts, and by which
they were probably accompanied in most
instances, although in others the assumption may rest on grounds of public policy."
Nowhere is the presumption held to be
a substitute for proof of an independent
and material fact. The language of the
opinion in Crussell's Case would perhaps
mislead, were it not read in connection
with the finding of facts. The question
was, whether seventy-three bales of cotton of the plaintiff's had been forwarded,
with a much larger amount, to the officer in
charge of military transportation at Nashville, and by him turned over to the treasury
agent. There was no direct proof that the




30


plaintiff's cotton was included in the shipment; but there was proof that the treasury
agent forwarded the cotton received by
him to the supervising agent at Cincinnati,
where a sale was soon after made, and some
of the bales sold were marked with the
plaintiff's mark. The question, therefore,
whether the military officer who shipped
the large quantity had shipped it with the
cotton of the plaintiff, was not left to depend
upon the presumption that he had done his
duty. There was distinct and independent
proof of it in the fact that some of the plaintiff's cotton had reached Cincinnati and had
been sold there. The presumption was only
confirmatory of what had been proved by
evidence, and in confirmation of that proof
it might be invoked. This is all that can
fairly be deduced from the opinion of the
court as delivered by the Chief Justice.
No more need be said of the present case.
It is not found as a fact that the identical
cotton captured from the plaintiff ever came
into the hands of a treasury agent, or that
it was sold, and that the proceeds were paid
into the treasury; and the presumption of
law adopted by the court, that the cotton
was a part of that transmitted and sold, was
unwarranted.
During the time the Philippine Islands were
subject to military occupancy by the forces of the
United States the Federal Government of the
United States might have properly levied and collected military contributions from the inhabitants




of the occupied territory in such sums as it saw
fit to require as indemnity for the cost of the invasion and maintenance of its troops and covered
the amount secured into its Federal Treasury, but
the United States did not pursue that course; it
contented itself with permitting the military government to exercise the authority to raise revenues
by duties and taxes and devote the revenues derived to the maintenance and puIrposes of the government of the islands.
The Brussels Project of an International Declaration Concerning the Laws and Customs of War
provides as follows:
ART. 5. The army of occupation shall
only levy such taxes, dues, duties, and tolls
as are already established for the benefit of
the state or their equivalent, if it be impossible to collect them, and this shall be done,
as far as possible, in the form of, and according to, existing practice. It shall devote
them  to defraying the expenses of the
administration of the country to the same
extent as was obligatory on the legal government.
Lieber's Instructions for the Government of
Armies of the United States in the Field (G. 0.,
100, A. G. 0., 1863) provides as follows:
10. Martial law effects chiefly the police
and collection of public revenues and taxes,
whether imposed by the expelled government or by the invader.           (Sec. 1,
par. 10.)
8812-03   3




32


9. The salaries of civil officers of the hostile government who remain in the invaded
territory and continue the work of their
offices and can continue it according to the
circumstance arising out of the war-such as
judges, administrative or police officers, officers of the city or communal governmentsare paid from the-public revenue of the
invaded territory until the military government has reason wholly or partially to discontinue it. (Sec. 2, par. 9.).
The Treasury Department on March 1, 1899,
formally determined that the moneys derived from
taxes and duties imposed in the islands at that
time subject to military occupancy by the military
forces of the United States, were not moneys belonging to the Federal Government of the United
States and were not to be deposited in its Treasury. The question was presented to the Treasury
Department as follows:
The collectors of customs and taxes in Porto
Rico and Cuba called attention to the large amount
of money accruing in their hands and the want of
means for safeguarding its keeping. There were,
also, a number of disbursing officers of the War
Department, paymasters and quartermasters of the
United States Army in Cuba and Porto Rico, who
had in their possession large sums of money drawn
from the Treasury of the United States for the
purpose of paying the troops and other expenses
of the military service of the army in those islands.
These officials and officers desired to avoid the




33


hazard of personal responsibility and in their interests the War Department took up the matter
with the Treasury Department, and after conference, the Treasury Department was advised as
follows:
WAR DEPARTMENT,
Washington, February 27, 1899.
The SECRETARY OF THE TREASURY.
SIR: Owing to the provisions of section
3621, R. S., it would materially facilitate
the business of the War Department if the
North Anterican. Trust Comnpany, of New
York, United States fiscal agent at Santiago, Havana, and other places in Cuba, and
De For d     cd Comtpany, of Boston, United
States fiscal agents in the island of Porto
Rico, were designated as United States Depositaries, and you are therefore respectfully requested to so designate them, if the
same may be done under the law.
Very respectfully,
G. D. MEIKLEJOHN,
Assistant Secretary of Wair.
In response to the foregoing the Secretary of the
Treasury transmitted to the War Department the
original of which a copy is as follows:
DEPARTMENT OF JUSTICE,
OFFICE OF THE SOLICITOR
OF THE TREASURY,
Washington, D. C., February 28, 1899.
The SECRETARY OF THE TREASURY.
SIR: I have considered the letter to you
of Hon. G. D. Meiklejohn, Assistant Secre



34


tary of War, of the 27th instant, in which
he says:
"Owing to the provisions of section 3621,
R. S., it would materially facilitate the business of the War Department if the North
American Trust Comp(tay, of New York,
United States fiscal agent at Santiago,
Habana, and other places in Cuba, and De
Ford adl Compalny, of Boston, United States
fiscal agents in the island of Porto Rico,
were designated United States depositories,
and you are therefore respectfully requested
to so designate them, if the same may be
done under the law."
The affairs of tie islands of Cuba and
Porto Rico are under the exclusive control
and management of the War Department.
The levying and collecting of taxes, as well
as the collection of duties, belong exclusively
to the military branch of the Government.
We have fiscal agents in those islands
who receive, have the custody of, and disburse the funds of the Government, for
which the Treasury Department is responsible.
Taxes, duties, etc., being the revenues of
those countries, do not when collected belong to the United States, and are not paid
into its Treasury, and there is no authority
for the designation of United States depositories for such funds by the Secretary of the
Treasury.
I am clearly of the opinion that the War
Department, which is responsible for the
safe-keeping of such funds, may provide for




35
depositories, and make sure of the safety of
the funds, by requiring such security as prudence may dictate.
Very respectfully,
MAURICE D. O'CONNELL,
Solicitor.
The rule thus declared was thereafter adhered to
in the Philippine Islands, Porto Rico, and Cuba by
all Departments of the executive branch of the
Federal Government of the United States.
On May 3, 1899, President McKinley issued al
order containing the following requirement:
The collectors of subports shall deposit
all moneys collected by them with the collector of the islands, and a receipt from the
collector of the islands shall be taken in
duplicate for all such deposits. All moneys
collected at the chief port by the collector
of customs for the islands, or transmitted
to him by the collectors at the subports,
shall be deposited with the treasurer of the
islands.  (See tariff circular No. 65, War
Department, Washington, May 5, 1899.)
(See also "Rules and instructions to carry into
effect the Executive orders relating to the military
government of the United States in the islands of
the Philippine Archipelago, and the island of
Guam, during the maintenance of such military
government," promulgated by Executive order
dated May 8, 1899. Also "Rules and instructions
relative to the accounting system of the military
government by the United States in the islands of




36
the Philippine Archipelago," promulgated February 23, 1901.)
Major-General Otis in his deposition taken in
this action testified as follows:
33. Question. By what authority or for
what purpose did you impose these duties?
Answer. I imposed them as a war measure for a revenue. Unless we had succeeded
in getting a revenue there, we could not have
carried on the war.
35. Question. Was the disbursement of
this money left with you?
Answer. Entirely.
36. Question. Was any of it sent in or accounted for in the Treasury Department
here?
Answer. When we commenced to disburse
this money I issued it to the chiefs of the
bureaus over there-our chiefs of the staff
department. I directed that they keep a
separate account of everything received, and
account for it. We had an inspector appointed to look over all expenditures. These
officers kept their own separate accounts and
they sent them to Washington. They were
all returned, saying that they did not desire
them in Washington, as they had nothing
whatever to do with them. It was not a
portion of their business. We never sent
them after that.
The moneys derived from taxes and duties imposed in the Philippine Islands were covered into
the Treasury of the insular government and disbursed by that government for its own purposes,




37
by appropriations made at first by the coordinate
action of the President, the Secretary of War, and
the military governor, while those officials exercised the powers of the legislative branch of that
government, and on and after September 1, 1900,
by the legislative act of the Philippine Commission, pursuant to authority conferred in the instructions of the President to the Philippine Commission, dated April 7, 1900.
The method adopted for providing revenues for
the government of the Philippine Islands and appropriating and disbursing the funds so secured
has been brought to the attention of Congress at
each session since the policy was inaugurated, by
full reports thereon and by laying before that body
the numerous appropriation acts adopted by the
legislative branch of the Government of the Philippine Islands. Congress did not see fit to disapprove of either the policy or the specific acts by
which it was carried out, and finally affirmatively
approved, ratified, and confirmed the whole and
every part thereof. (Act approved March 8, 1902,
entitled "An act temporarily to provide revenue
for the Philippine Islands and for other purposes,"
and act approved July 1, 1902, entitled "An act
temporarily to provide for the administration of
the affairs of civil government in the Philippine
Islands and for other purposes.")
The policy adopted by President McKinley enabled his administration, and that of President
Roosevelt, to avoid the difficulty encountered by




38
President Polk by reason of the course pursued by
the Polk Administration when a portion of Mexico
was subject to military occupancy by the forces of
the United States (luring the Mexican war. While
war with Mexico existed and afterwards, President Polk exercised the right of distributing or
appropriating the funds derived from the customs
revenues of the country occupied by our armies.
The money so secured was collected as military
contributions or requisitions. It was seized as
legitimate spoil of war, and held and intended for
the use and benefit of the United States. In this
respect it differed from the funds derived from the
revenues collected in the Philippine Islands, which
are created, collected, and disbursed for the use
and benefit of those islands.
The money secured by our military forces in the
war with Mexico was not converted into the
Treasury of the United States, and President Polk
used it, as his discretion determined, "toward defraying the expenses of the war."
The authority of President Polk to dispose of
the funds so collected was challenged in Congress.
(Congressional Globe, vol. 20, p. 57, Dec. 18, 1848.)
The matter was referred to a select committee,
who submitted a majority report denying such
authority in the President and a minority report
sustaining the course pursued by President Polk.
(See Reports of Committees, 2d sess., 30th
Cong. (1848-49), Report No. 119; see Message
Pres. Polk to Cong., Jan. 2, 1849; Richardson's




39
Comp., vol. 4, p. 672; see Discussion of Message,
20 Cong. Globe, p. 148 et seq.)
The course pursued by President Polk was
fillnally sustained by Congress by the passage of an
act approved March 3, 1849, entitled "An act to
provide for the settlement of the accounts of public officers and others who may have received
moneys arising from   military contributions or
otherwise in Mexico."  (9 Stats., 412.)
It must not be forgotten that the moneys disbursed by order of President Polk belonged to the
United States, and the officers who had received
and disbursed the same were required to account
therefor to the Treasury Department. Hence the
necessity for the above-entitled act.
The claimant has recently accepted the view
that the moneys collected by the customs officials
in the Philippine Islands belonlg to the government
of the archipelago, and that a suit to recover the
moneys so paid should be against the G(overnment
of the Philippine Islands.
The legislative branch of the Government of the
Philippine Islands has made provision for the recovery of amounts erroneously or illegally exacted
by the customs officials of that government. Act
of the Philippine Commission, No. 355, known as
the Philippine customs administrative act, passed
February 6, 1902, provides for a court of customs
appeals, having jurisdiction to review the action of
customs officials in imposing and collecting customs duties.  The court is composed of three




40
judges, one of whom is the Secretary of Finance
and Justice for the government of the islands,
one a judge of the supreme court, and one a competent person to be appointed by the civil governor,
with the advice and consent of the Philippine
Commission.
Since the passage of this act and the organization of the court Warner, Barnes & Co., Limited,
have instituted a number of appeals in said court,
seeking to recover from the government of the
Philippine Islands various amounts paid by it as
duties on imports into the-Philippine Islands and
exports therefrom subsequent to February 6, 1902.
Several of these cases have been adjudicated by
that court. A review of the proceedings and a
complete copy of the opinion of the court and the
decisions in the cases is published in the official
publication of the Philippine government known
as "Customs Decisions," No. 2, Vol. II, issued
September 30, 1902, pages 28 to 57. A copy of
said official document has' been filed in this case.
The opinion of the court was rendered by Judge
Henry C. Ide, Secretary of Finance and Justice of
the Government of the Philippine Islands, concurred in by Cayetano Arellano, the chief justice
of the supreme court of the Philippine Islands,
and A. S. Crossfield, judge. It appears from the
published proceedings that the claimant in those
cases advanced the same propositions of law and
fact relied upon to secure a recovery in the case
at bar. The court denied the claimant's right to




41
recover. In the opinion Judge Ide discusses several propositions involved herein, and while the
determination is not binding upon this court, the
decision is instructive, at least, and the opinion of
Judge Ide is entitled to great weight and consideration as being the judicial utterance of one learned
in the law and familiar with the facts out of which
this case arises.
IV.
The war of tihe insurrection in tlie Philippine Islands,
1899-1902; the military occupancy of Manila and Iloilo
by the forces of tie United States; the administration of
civil governmient by nmilitary authority; the character and
extent of the insurgent military and political organizalions; the jurisdiction and dominion exercised thereby;
tie hostile endeavors of the insurgents to expel the sovereignty of tlie United States; the measures required to
overcome such endeavors; tie resulting conditions.
In its ultimate analysis this case turns upon the
legality of maintaining the military occupancy of
Manila and Iloilo during the period of time in
which the exactions complained of were enforced.
The right to maintain that military occupancy being established, verb. sap. the other actions complained of are justified.
The right to subject territory to military occupancy is one of those known as belligerent rights.
The authority to exercise this right is derived
from the laws of war. The conferring of such
authority is dependent upon the existence of
war. In time of war between independent nations the right extends to all territory of the




42


opposing states; that is to say, either combatant
may occupy any portion of his adversary's territory when the fortunes of war enable him to do
so. In domestic warfare the right is confined to
such portion of the nation's territory as is the
theater of actual hostilities and military operations
or directly and immediately affected thereby.
The President is without authority to subject
any portion of the nation's territory to military
occupancy unless there exists a real or apparent
necessity for such occupancy. This necessity may
be created by a foreign invasion or by an insurrection of such extent as to require the United
States to protect or enforce its sovereign and proprietary rights by military force. The necessity
arising, the President, as the Chief Executive, is
bound to adopt measures calculated to preserve the
nation's rights and enforce the nation's authority.
When conditions afford "color of title" for the
exercise of such authorty the President may act
without awaiting permission of Congress, and his
determination of what steps are required to meet
the emergency is conclusive upon all branches of
this Government. It is therefore advisable to
consider the conditions affecting the rights of the
United States, the public peace and social order,
and the duties devolving upon the sovereignty in
the Philippine Islands during the time the archipelago was subjected to military occupancy by the
military forces of the United States.




43
The military occupancy of the Philippine Islands
by the forces of the United States was instituted
originally as an incident of the war with Spain.
The territory actually occupied by the United States
was that included within the limits of the city of
Manila. Around the city and within its suburbs
was encamped an armed force of natives collected
and organized in military formations by Aguinaldo
and a number of influential natives who voluntarially submitted to his orders. Beyond this line
the territory was occupied by the Spanish forces
or by communities yielding allegiance to Spain or
to the insurgent military-civil organization.
In 1896 there was an insurrection in the Philippine Islands against the sovereignty of Spain.
The avowed purpose of that insurrection was to
bring about certain reforms in government; but,
as is now known, the insurgents sought to overthrow and expel Spanish sovereignty. To promote that insurrection there was organized a secret
society called the Katapunan, the subordinate
branches of which extended into all parts and
nearly all communities of the islands and became
quite formidable. That insurrection was directed
by a junta established at Hongkong. The Spanish
officials promised compliance with the demand for
reforms, and by various means known to oriental
administration induced the leaders to abandon
their following and leave the islands. These
leaders, among them Aguinaldo, proceeded to




44
Hongkong and the juinta, thus reenforced, continued to plot for the accomplishment of their more
ambitious designs as opportunity should be
afforded. Upon the outbreak of the SpanishAmerican war the Hongkong junta sought and
secured permission from the American authorities
to return to the Philippines and engage in the
work of promoting a friendly feeling toward
Americans and the American cause, and to raise
troops for such purposes as the United States might
properly use them. Upon arrival at Manila the
emissaries of the junta availed themselves of the
knowledge and means by which the insurrection of
1896 had been promoted, and a large body of
natives flocked to their standards. These men
were organized into an army in accordance with
approved plans for military organization and
equipped with arms secured by the capture of the
Spanish arsenal at Cavite.
The insurgent military force was greatly augmented by the accession of large bodies of native
troops which had been raised and equipped by the
Spanish Government on the outbreak of the Spanish-American war, for use in case the United
States should invade the Philippine Archipelago.
These native troops, after being armed and
equipped by the Spanish military authorities,
were assigned to positions in the lines defending
Manila. Aguinaldo arrived at Cavite May 19,
1898. The first desertions of these troops to him




45


took place May 23, 1898, consisting of a battalion
of natives, enlisted in Pampanga Province, which
had reached Manila April 29, 1898, and had been
stationed between Manila and Bacoor, a town near
Cavite. Almost immediately the greater part of
the remaining volunteers passed, with their arms
and equipment, to Aguinaldo. By August, 1898,
the Spanish garrisons and Spanish civil officials in
Luzon had surrendered to or been captured by the
insurgents, usually with little or no resistance;
and the arms of the Spanish garrisons and of the
native volunteers were at the disposal of Aguinaldo. With these in his hands he was in a position to dictate to the inhabitants such form of
government as he desired. The terms of the
peace protocol of August, 1898, aild of the capitulation of Manila, gave him a free hand, as they
confined the American forces to the limits of that
city; and as the status was still one of war, no
reenforcements could be sent to the Philippines,
still Spanish territory, to put down the insurrection.
Whatever were the purposes entertained by the
i  junta in sending its members to Manila, and of the
leaders who gathered around Aguinaldo upon his
arrival, they shortly afterwards conceived the design of creating an insurrection against the sovereignty of the United States, expelling it from the
archipelago and establishing an independent state
created by the insurgents. Their experience in




46
the insurrection of 1896 and the information acquired by the juRta in attempting to secure assistance through the representatives of foreign governments at Hongkong and elsewhere, advised
them that the success of an insurrection, having
for its purpose the creation of an independent
state, required not only a military force sufficient
to expel the existing sovereignty, but also a civil
organization sufficient to assume and exercise the
powers and discharge the obligations of sovereignty. During the time the peace negotiations
were in progress in Paris, the plans of the conspirators in the Philippines were adopted and put
into execution. The Katapunan was revived and
made the propaganda of the insurrection and
became the basis of an organization for the administration of civil government. From July,
1898, the work of organizing and promoting the
insurrection went on with constantly increasing
activity. The racial prejudice of Orientals against
all things Occidental, the abuses of Spanish administration, the ignorance of the inhabitants
respecting the government and purposes of the
Americans, and the absence of a common language or means of communication, all made it
easy for the insurgents to foment opposition and
arouse passion and prejudice against the United
States.
The American troops were cooped up in Manila
by reason of the peace protocol, and being comparatively few in number, and those few remain



47
ing inactive, their presence became an excitent
rather than a deterrent. By the time the Peace
Commission at Paris had completed its labors the
insurgent force surrounding Manila was of such
size and efficiency that the leaders believed it capable of overcoming the defense and capturing
the city, while throughout the islands armed
bodies of insurgents were formed and civil organizations created for the purpose of seizing the
local governmental agencies when they should be
abandoned by the Spanish officials. During this
critical period the American commanders were
without authority or means to counteract what was
going on, and the large native element opposed to
the insurrection was inactive and impotent for
want of leaders and knowledge of the purposes of
the Americans, or ability to anticipate the ultimate outcome of the negotiations at Paris, or the
course of events thereafter. In many communities the Spanish authorities abandoned their stations, or were displaced and their positions and
powers usurped by agents of the insurrection.
Thus the plans of the insurgent leaders were
developed without opposition, and by December,
1898, the insurgent military and civil organizations extended throughout the larger portion of
the principal islands, ready and waiting to act
upon instructions from the central authorities of
the insurrection.
The military situation at Manila and in that
8812-03   4




48
vicinity rapidly approached a crisis. On December 10, 1898, the Treaty of Paris was signed
whereby Spain consented to the transfer of sovereignty over the Philippine Islands to the United
States. On January 4, 1899, the President transmitted said treaty to the Senate '' with a view to
its ratification."  Early in February, 1899, it was
evident that the Senate would advise that the
treaty be ratified. The consummation of the
transfer of sovereignty being at hand, the leaders
of the insurrection determined to adopt active and
offensive means to prevent that consummation,
and thereupon the military forces of the insurrection made an attack upon the American forces
in Manila. This attack occurred on the night of
February 4, and was re)eated on February 5,
6, and 10, 1899.
The situation at Iloilo was as follows: In December, 1898, General Otis, then in command at
Manila, received a letter signed by a number of
merchants located at Iloilo, stating that the Spanish were about to evacuate the town and permit it
to be occupied by the insurgents, in which event
the signers feared great loss of property and life,
and besought the American commander to send
troops to occupy the town and prevent the threatened disaster. Major-General Otis ordered a body
of troops, under command of Brig. Gen. Marcus P.
Miller, to proceed to Iloilo and occupy the town.
On December 25, the expedition started from
Manila under naval escort and arrived at Iloilo




49
December 28, 1898. Upon entering the harbor
General Miller was met by a delegation representing the insurgent government, who demanded that
he should not land his troops and occupy the city,
stating that were he to attempt to land, such action would be taken as a declaration of war
against the Aguinaldo government and the Americans would meet with armed resistance. They
also presented to Generall Miller a letter signed by
the merchants who had previously called for the
protection of the American troops, requesting that
the American forces should not attempt to occupy
the city, as they feared if the attempt were made
the insurgents would burn their property and start
a general conflagration thoughout the city. General Miller decided not to land his forces until he
could advise General Otis of the situation acnd receive further orders. General Otis ordered the
troops to remain on board the vessels and await
developments. The troops remailled on board
the ships until February 11, 1899; meanwhile, the
insurgent forces attacked Manila, whereupon General Otis ordered Iloilo to be taken, and the city
was bombarded, the insurgents driven out, and thl
city occupied by the American forces.
The treaty of December 10, 1898, confirmed the
title of the United States to sovereignty over the
Philippine Islands and the proprietary rights to
the property in said islands theretofore possessed
by the Crown of Spain, but the only territory of
said islands occupied and possessed by the United




50


States was the city of Manila, and that possession
was segregated from the remaining territory of the
islands by a line of hostile guns. The territory
beyond that line was not occupied by the American forces until the forces of the insurrection had
been routed and the territory captured by the
valor of American arms.
The American troops in Manila in February,
1899, numbered 20,870.   (See Annual Report
Secretary of War for 1899, p. 7.)
Opposed to them was an armed force of insurgents estimated by Major-General Otis at 50,000
or 60,000 (question 43, deposition). Of these,
20,000 or 30,000 invested Manila (Otis deposition,
questions 12 and 43).
General Otis further testifies:
46. Question. At the time of the outbreak
to what extent was the army organized?
Answer. They had organized this army
around Manila in four zones. There were
two zones, as they called them, to the north
and two zones to the south. It was organized after the Spanish practice, and quite
efficiently organized. It was a military organization throughout.
These forces were intrenched about Manila and
had 40,000 stand of arms and several pieces of artillery. (Otis deposition, questions 12 and 13.)
On February 5, 1899, immediately following the
repulse of the attack of the insurgets on Manila,
Aguinaldo, as general in chief, issued, as of date




51
February 4, 1899, a "general order to the Philippine Army," containing the following:
I order and command:
1. Peace and friendly relations between
the Philippine forces and the American
forces of occupation are broken, and the
latter will be treated as enemies, with the
limits prescribed by the laws of war.
2. American soldiers who may be captured by the Philippine forces will be treated
as prisoners of war.
3. This proclamation shall be communicated to the accredited consuls of Manila
and to Congress, in order that it may accord
the suspension of the constitutional guaranties and the resulting declaration of war.
On February 22, 1899, a concerted rising of the
Tagalogs in the city of Manila, of whom there were
about 200,000, was attempted under instructions
from the insurgent leaders to massacre all the
Americans and Europeans in the city. This attempt was suppressed and the city was placed
under strict control by the military authorities.
(See Annual Report, Sec. of War, 1899, p. 7.)
Respecting the situation outside the American
lines defending Manila, General Otis testifies:
21. Question. After the outbreak of hostilities, within what territory did this Filipino government have sway?
Answer. Throughout Luzon, throughout
the Visayan Islands, excepting Negros, and
in northern Mindanao.




52
Manila is in Luzon and Iloilo is in Panay, the
principal island of the Visayan group.
General MacArthur testifies herein as follows:
9. Question. From your observation and
from various sources of information that
you had, state what was the situation regard -
ing the insurrection movement at the time
you reached the Philippines.
Answer. At the time I landed at Paranaqui, which is possibly 10 or 12 miles south
of Manila, I found the Filipinos organized
and occupying a line of investment which
included eight-tenths of the line that surrounded Manila. The Filipino army was
cohesive and remarkably well organized,
considering the conditions under which it
had its origin, and was apparently supported
by the entire Filipino population.
1G. Question. Mr. Coudert has stated that
along with the Philippine Islands we inherited an insurrection; was that about right?
Answer. The people of the islands were
engaged in a violent movement against
Spain, which continued during the entire
period of the negotiations of the treaty of
Paris. The American Army occupied Manila and its suburbs, and outside of Manila,
in Luzon, the insurgents had almost absolute
control.  That insurrectionary movement
was in behalf of their self-interest. When
the American army landed, the general tendency of the Filipinos was rather in the
direction of friendship, because of the belief
that we would help them to accomplish their




3


purpose. Gradually that feeling of confidence was changed into mistrust and suspicion, and the whole force of the movement
which had been directed against Spain was,
after February 4, 1899, directed against the
United States.
On cross-examination General MacArthur testifies as follows (p. 283)
9. Cross-questioll. How far, if at all, did
the Filipinos,carry on what is known as a
territorial war-that is, having complete
possession, control, and jurisdiction? Was
there any place where their jurisdiction and
power and possession was supreme, so that
you could not )elnetrate it?
Answer. At the beginning of the insurrection the entire territory, outside of a
number of garrisons that we held-Cavite
and Manila-they lhad everything. Subsequently we occupied every town by the
distribution to which I have referred. The
distribution was so great that we had at the
maximum there 520 different posts.
The existence of these conditions in territory
recently acquired by the United States and lawP      fully amenable to its sovereignty amply justified,
nay, imperatively required, that the President
should have recourse to the military arm of this
Government to maintain the occupancy of the
territory then in our possession, and to extend
that occupancy throughout the islands.    The
treaty confirming the title of the United States to
that territory, far from depriving the President of




54
authority to deal with the situation as necessity
required, increased that authority in proportion to
the increase of national and international obligation to discharge the duties thereafter devolving
upon the United States.
The President determined that the condition of
war against the sovereignty of the United States
prevailed in the Philippine Islands as the result
of the efforts of armed bodies of insurgents to overthrow and expel that sovereignty and establish an
independent government. The treaty of peace
with Spain did not terminate that condition, for
the elemental reason that it did not terminate the
attempts of the insurgents to accomplish the purposes of the insurrection by force of arms.
The President dealt with that situation as he
best could with the military forces at his disposal.
As soon as the treaty was signed at Paris additional troops of the Regular Army were ordered to
Manila. The troops under General Otis, at that
time, included 15,498 volunteer officers and enlisted
men and 1,650 regulars whose right to discharge
was perfected by the exchange of ratifications of
the treaty on April 11, 1899. To meet this situation Congress, on March 2, 1899, authorized the
President to increase the Regular Army of 27,500
men to 65,000 men and maintain it at that maximum until July 1, 1901. On February 2, 1901, in
view of the provisions of the act of March 2, 1899,
requiring the muster out of the additional force not
later than July 1, 1901, and the utter inadequacy




55
of the Regular Army after that date to deal with
existing conditions, Congress authorized an increase
of the Regular Army to 100,000 men. With the
troops placed at his disposal by Congress the
President, as Commander in Chief, continued his
efforts to suppress the insurrection, and to that end
exercised in the archipelago the rights of a belliger -
ent commander.
The doctrine is well received that a sovereignty
engaged in suppressing an insurrection against its
authority may exercise the rights of a belligerent..
This is especially so when the purpose of the insurrection is the overthrow and expulsion of the law -
ful sovereign. Lieber's Instructions for the Government of Armies of the United States in the
Field declares the rule as follows (section 10):
1. Insurrection is the rising of people in
arms against their government or a portion
of it, or against one or more of its laws, or
against an officer or officers of the government. It may be confined to mere armed
resistance, or it may have greater ends in
view.
2. Civil war is war between two or more
portions of a country or state, each contending for the mastery of the whole and
each claiming to be the legitimate government. The term is also sometimes applied
to war of rebellion when the rebellious provinces or portions of the state are contiguous
to those containing the seat of government.
3. The term rebellion is applied to an insurrection of large extent, and is usually a




56


war between the legitimate government of
a country and portions of provinces of the
same who seek to throw off their allegiance
to it and set up a government of their own.
Bouvier's Dictionary, title Law, says: "In a civil
war the sovereign has belligerent as well as sovereign rights against his rebel subjects, and may
exercise either at his discretion. (2 Wall, 419; 100
Mass., 576; Rose v. Himtely, 2 Cr., 272.) "
An. insurrection becomes a war by reason of its
attendant circumstances, the number, power, and
operations of the persons who originate it or engage therein.  (The Prize Cases, 2 Black., 635.)
"It is a proposition never doubted that the belligerent party who claims to be sovereign may exercise
both belligerent and sovereign rights." (Id., 673.)
That actual war prevailed in the Philippine
Islands during the time referred to in claimant's
petition is shown by the following compilation
from the records of the Record and Pension Office,
War Department, and authenticated by Brig. Gen.
F. C. Ainsworth, Chief of that Bureau.
The maximum number of troops in the
Philippine Islands during the year of 1898
was 22,073; in 1899, 29,722; in 1900, 69,420,
and in 1901,67,393. These were the largest
in any one month during the above years.
The total aggregate number of troops that
served in the Philippines between June 30,
1898, and December 31, 1901, was 115,077.
The Report of the Adjutant-General for
the year 1902, page 11, shows that the number of troops that served in the Philippine




57


Islands between June 30, 1898, and July 4,
1902, when the insurrection ended, was
126,468, and the total number of engagements, skirmishes, etc., with the enemy
between February 4, 1899, and July 4,1902,
was 2,811.
The engagements with the enemy in that
country during the war with Spain, and
prior to February 4, 1899, were limited to
the operations and attack on Manila, July
31 to August 13, 1898.
The number of engagements of all sorts
against the insurgents after February 4,
1899, was, as near as it is possible to determine at present, in 1899, 538; in 1900,
1,150, and in 1901, 656; total, 2,744.
The posts and stations garrisoned by the
United States forces in 1898 were confined to
Manila and its suburbs; for the years 1899,
1900, and 1901 the number so garrisoned can
not with any degree of accuracy be given,
owing to the almost continuous operations
and changes, many places being occupied
for a few days only. The army returns
give little information on this point, but the
printed rosters of different dates from
headquarters at Manila, showing stations
and location of troops from time to time,
indicate that at times the number so occupied was between 500 and 600. None of the
rosters were issued, so far as known, prior
to March, 1900, and after that at irregular
intervals, and it is therefore impracticable
to give the data desired by years.
The number of deaths there among the




58


troops, from all causes, was 4,374, and the
number of wounded in action was 3,022.
F. C. AINSWORTH,
Chief Record and Pernsion Office.
The Annual Report of the Lieutenant-General
Commanding the Army, for 1901, part 2, pages
73-78, sets forth the "Distribution of troops in
the Philippine Islands on June 1, 1901."
In the same volume of said report, pages 79-87,
appears a "List of garrisoned towns, &c.," in said
islands on June 1, 1901.
Upon examination as to the operations of the
American forces it appears that on August 31,
1899, seven months after the outbreak of the
insurrection, the cities in the islands occupied and
permanently held by the United States forces were:
Manila, island of Luzon; Iloilo, island of Panay;
Cebu, island of Cebu; Bacolod, island of Negros;
Jolo, in the Sulu Archipelago. (See Annual
Report, Secretary of War, 1899, p. 7.)
The situation as to the other towns and territory
of the islands is stated by the Secretary of War as
follows (Annual Report, 1899, p. 7):
There were not the troops necessary to
garrison the towns or to maintain any far
extended lines of communication. No at- '
tempt was accordingly made to occupy the
country, except in the vicinity of Manila,
and at such points as were important for the
protection of our lines. Such movements
as passed beyond this territory were designed
primarily to break up threatening concen



59
trations of insurgent troops, and to prevent
undue annoyance to the positions which we
occupied.
Appendix A to the Report of the Secretary of
War for 1899 contains a number of cablegrams
from General Otis reporting the operations of his
command in the Philippine Islands after August
31, 1899, showing almost daily engagements with
the forces of the insurrection. See also "Summary of the principal events connected with
military operations in the Philippine Islands,"
Annual Report of the Major-General commanding, 1899, part 2, pages v-xvII.
Secretary Root, in his annual report for 1900,
describes the military situation in the Philippine
Islands as follows (pp. 5-10):
The enlargement of the field of operations
and government in the Philippine Islands
made it impracticable to conduct the business under the charge of the army in those
islands through the machinery of a single
department, and by order made April 7,
1900, the Philippine Islands were made a
military division, consisting of four departments: The Department of Northern Luzon,
the Department of Southern Luzon, the
Department of the Visayas, and the Department of Mindanao and Jolo. The Department of Northern Luzon is subdivided into
six, the Department of Southern Luzon into
four, the Department of the Visayas into
four, and the Department of Midanao and
Jolo into four military districts.




60


The operations conducted under the direction of the Department during the year include the continued prosecution of the war
for the suppression of the insurrection in
the Philippines and the establishment and
maintenance of government in those islands.
At the date of the last report (November
29, 1899) the government established by the
Philippine insurgents in central Luzon and
the organized armed forces by which it was
maintained had been destroyed, and the
principal civil and military leaders of the
insurrection, accompanied by small and scattered bands of troops, were the objects of
pursuit in te  este     the este r an the notern parts
of the island. That pursuit was prosecuted
with vigor and success, under conditions of
extraordinary difficulty and hardship, and
resulted in the further and practically complete disintegration of the insurrectionary
bands in those regions, in the rescue of
nearly all the American prisoners and the
greater part of the Spanish prisoners held
by the insurgents, in the capture of many of
the leading insurgents, and the capture and
destruction of large quantities of arms,
ammunition, and supplies.
There still remained a large force of insurgents in Cavite and the adjacent provinces
south of Manila, and a considerable force to
the east of the Rio Grande de Pampanga,
chiefly in the province of Bulacan, while in
the extreme southeastern portions of Luzon
and in the various Visayan islands, except




61


the island of Negros, armed bodies of Tagalogs had taken possession of the principal
seacoast towns, and were exercising military
control over the peaceful inhabitants. Between the insurgent troops in Bulacan and
the mountains to the north and the insurgents in the south communication was
maintained by road and trail, running along
and near the eastern bank of the Mariquina
River and through the towns of Mariquina,
San Mateo, and Montalban and the province
of Morong. This line of communication,
passing through rough and easily defended
country, was strongly fortified, and held by
numerous bodies of insurgents.
On the 18th of December, 1899, a column,
under the command of Maj. Gen. Henry W.
Lawton, proceeded from Manila, and between that date and the 29th of December
captured all the fortified posts of the insurgents, took possession of the line of communication, which has ever since been
maintained, and destroyed, captured, or
dispersed the insurgent force in that part of
the island.
On the 4th of January, 1900, Gen. J. C.
Bates, U. S. Volunteers, was assigned to the
command of the First Division of the Eighth
Army Corps, and an active campaign under
his direction was commenced in southern
Luzon. The plan adopted was to confront
and hold the strong force of the enemy near
Imus and to the west of Bacoor by a body of
troops under General Wheaton, while a column under General Schwan should move




62


rapidly down the west shore of the Laguna de
Bay to Binang, thence turn southwesterly
and seize the Silang, Indang, and Naic road,
capture the enemy's supplies supposed to be
at the towns of Silang and Indang, and arrest the retreat of the enemy when he should
be driven from northern Cavite by our
troops designated to attack him there, and
thus prevent his reassembling in the mountains of southern Cavite and northern Batangas. This plan was successfully executed.
General Schwan's column moved over the
lines indicated with great rapidity, marching a distance of over 600 miles, striking
and defeating numerous bodies of insurgents and capturing many intrenched positions, taking possession of and garrisoning
towns along the line, and scattering and
demoralizing all the organized forces of the
enemy within that section of country.
In the course of these operations about 600
Spanish prisoners were released from the in -
surgents, leaving about 600 more still in
their hands in the extreme southeastern
provinces of Camarines and Albay, nearly
all of whom were afterwards liberated by
our troops. In the meantime an expedition
was organized under the command of Brig.
Gen. William A. Kobbe, U. S. Volunteers,
to expel the Tagalogs who had taken possession of the principal hemp ports of the
islands situated in Albay, the extreme south -
eastern province of Luzon, and in the islands
of Leyte, Samar, and Catanduanes.




6$3


This expe(Iition sailedl from Manila oii
the 18th of Jtanuary and1 accomplished its
object. All of the princip)al hemp ports
were relieved from control of the insurgents,
garrisoned iby Americ'an troops, and o})ened
to commerce by ordier of the military governor of the islands on~ the 830th of January
and the 10th anrud 14th of Febru.-ary. -The
exipediition met with,-strong resistance at
Legaspi 1)y tan intrentched force under the
Chinese greneral, 1Panfa. He w-ca slpeedily
over-come, all(I went into the interioIr. After
6a few (lays he reassemlI)leM his forces and
threatened the garrisons whiich had been
left in Albayv (and Legraspi; whereupon he
wvas attacked, and (lefeatedl, Cand sunrren(lere(1. Thirty  icso     artillery., a large
quantitv of ammunition, at gool many rifles,
and a conisideraible amount of money were
capltured( I ~y this expe(liti on.
On the 15tli of February an expedition,
undler the, 5u'lpervisionl of Mailjor -General.
B'ates, anid unuder the immediate command
of Brig. (Thun. James M\. BeIll U. S. Volun11 -teers, stailed from Manila, to take possession
of the North and South Canmarines pr'ovinces Cand -western Alb~ay, III which. the
insurgent forces hadl been swelled by the
individuals Cand scattered  bands escaping
from our olperatiolis in various sections of
the north. The insurgent force was defeated after a sharp engagement near the
mouth of the Bicol. River, pursued, and scat -
tered. Large amounts of artillery and wvar
8812-03 ~5




64


material were captured. The normal conditions of industry and trade relations with
Manila were resumed by the inhabitants.
On the 20th of March the region covered
by the last-described operations was created
a district of southeastern Luzon, under the
command of Gen. James M. Bell, who was
instructed to proceed to the establishment of
the necessary customs and internal-revenue
service in the district. In the meantime
similar expeditions were successfully made
through the mountains of the various islands of the Visayan group, striking and
scattering and severely punishing the bands
of bandits and insurgents who infested
those islands. In the latter part of March
General Bates proceededl with the Fortieth
Infantry to establish garrisons in Mindanao.
The only resistance was of a trifling character at Cagayan, the insurgent general in
northwestern Mindanao surrendering and
turning over the ordnance in his possession.
These movements, an( many others incidental to them, are particularly described in
the report of Major-General Otis, which is
submitted herewith.
With their execution all formal and open  4
resistance to American authority in the
Philippines terminated, leaving only an exceedingly vexatious and annoying guerrilla
warfare of a character closely approaching brigandage, which will require time,
patience, and good judgment to finally suppress. As rapidly as we have occupied
territory, the policy of inviting inhabitants




65


to return to their peaceful vocations and
aiding them in the reestablishment of their
local governments has been followed, and
the protection of the United States has been
promised to them. The giving of this protection has led to the distribution of troops
in the Philippine Islands to over four hundred different posts, with the consequent
labor of administration and supply.
The maintenance of these posts involves
the continued employment of a large force,
but as the Tagalogs who are in rebellion
have deliberately adopted the policy of murdering, so far as they are able, all of their
countrymen who are friendly to the United
States, the maintenance of garrisons is at
1resellt necessary to the protection of the
peaceful and unarmed Filipinos who have
submitted to our authority, and if we are to
discharge our obligations in that regard their
relduction must necessarily be gradual.
In his annual report for 1901, Secretary Root,
with reference to the military situation in the
Philippine Islands, says (pp. 27-28):
At the (late of my last report (November
30, 1900) formal and open resistance to
American authority in the Philippines had
practically terminated, and the Filipino insurgent forces had adopted a system of guerrilla warfare closely approaching brigandage.
To successfully contend against this condition and to suppress it, to afford protection
to the peaceful and unarmed inhabitants,
and to reestablish local civil governments




had necessitated the distribution of our
forces to more than four hundred stations.
This process continued until a maximum of
502 stations were occupied, holding every
important town and strategic point in the
archipelago. The scattered guerrilla insurgent bands obtained funds andl slupplies from
the towns and the country in the vicinity of
their operations. The people thus contributing to the support of these guerrillas had
been rarely interfered  with.  Prisoners
taken in battle had been disarmed and
immediately released.
This policy had been adhered to in the
hope that it might. make friendly neighbors
of the natives, but, on the contrary, they
seemed suspicious of this beneficence land
looked upon it as an evidence of weakness.
It was therefore decided to apply more
rigidly to the residents of the archipelago
the laws of war touching the government
of occupied places. Notice of this intention was given by a proclamation issued by
the military governor December 20, 1900,
fully explaining the law, supplemented by
letters of instruction and followed by more
vigorous field operations. It was followed
immediately by the deportation to the
island of Guam  of about fifty prominent
Filipino insurgent army officers, civil officials, insurgent agents, sympathizers, and
agitators. The details of the l)roclamation,
letters of instruction, and orders governing
the deportation are embodied in the report
of Major-General MacArthur submitted
herewith.




67
The fieldwork of the army was continued
with renewed vigor from each of the 500
stations, and was colnducted simultaneously
throughout the entire archipelago with such
telling results that, with the exception of
Lukban, in Samar, and Malvar, in southern
Luzon, all prominent insurgent leaders,
with their commands, were captured or
surrendered.
The most important single military event
of the year in the Philippines was the capture of Aguinaldo, successfully accomplished by Brig. Gen. Frederick Funston,
U. S. Army, under the supervision and guidance of his department and division commanders, Major-(4enerals Wheaton    and
MacArthur. Soon after his capture Aguinaldo voluntarily subscribed to the oath of
allegiance and issued a proclamation to the
Filipino people urging the termination of
hostilities, that "lasting peace might come
to them under the glorious banner of the
United States."  His capture was soon followed by the surrender of such prominent
Filipino leaders as Tinio, Aglipay, Trias,
and Cailles, with their entire following.
The operations of the field forces were so
vigorous and unrelenting that more than
1,000 contacts occurred between our troops
and the insurgents from May, 1900, to June
30, 1901, in which the insurgent casualties
were: Killed, 3,854; wounded, 1,193; captured, 6,572; surrendered, 23,095; with a
total of 15,693 rifles and nearly 300,000
rounds of small-arms ammunition captured




and surrendered. Our casualties during the
same period were: Killed, 245; wounded,
490; captured, 118; missing, 20.
See also " Summary of principal military events
connected with military operations in Philippine
Islands," Ann. Rep. Lieut. (Gen. Comd'g, 1901,
Part 2, pages 5-72.
In his annual report for 1902 Secretary Root
says (pp. 11-12):
At the time of my last report Malvar, in
the provinces of Batangas and Tayabas, in
the island of Luzon, and Lukban, in the
island of Samar, were the only insurgent
leaders of importance who still maintained
guerrilla warfare. We hoped that these
leaders, with their followers, would yield to
the example and advice of the great body
of the Philippine people who had become
friendly to the United States, and would
voluntarily lay down their arms. It soon
became evident, however, that this would
not be the case. Malvar grew stronger,
rather than weaker, under the effect of a
conciliatory and peaceful policy, and the
fierce natives of Samar were excited to
greater hostile activity by a successful surprise at Balangiga in September, by which
the people of the town, who had given every
appearance of friendliness and were treated
as friends, set upon a company of the Ninth
Infantry while at breakfast and murdered
most of them.




69
Active campaigns were accordingly inaugurated ill both regions, and these resulted in the surrrender of Malvaar on the
16th of April, and il the capture of Lukban
and the surrender of Guevara, his successor,
onl the 27th of April. Gen. Frederick D.
(Grant reports that the surrenders in Samar
included every gun known to exist in the
island, except two; anld Gen. J. F. Bell,
who conducted operations against Malvar,
in Batangas, relports that (luring the campaign we secured:,561 guns, 625 revolvers,
with many thousand bolos, roun(ds of ammunition, etc., and detected, captured, or
forced to surrender some eight or ten thousand persons actively engaged in one capacity or another in the insurrection. These
surrenders put an end to the guerrilla warfare in the Philippines, which had been
w-aged with great ferocity ever since the
destruction of lAguinaldo's government in
the latter part of 1899, and had been accompanied by constant treachery, assassination, cruelty, and disregard of the laws
of wacr.
The way was now clear to complete the
establishment of civil government, and by
energetic action and hearty cooperation on
the part of both the civil and military authorities in the Philippines this was accomplished coincidently with the enactment by
Congress of the Philippine government bill
of July 1, 1902.




70


On the 4th of July, 1902, the remainder
of the military government was ended by
the following order:
WAR DEPARTMENT,
"W(ashingtoln, July 4, 1902.
"The insurrection against the sovereign
authority of the United States in the Philippine Archipelago having ended, and provincial civil governments having been
established throughout the entire territory
of the archipelago not inhabited by Moro
tribes, under the instructions of the President to the Philippine Commission, dated
April 7, 1900, now ratified and confirmed by
the act of Congress approved July 1, 1902,
entitled 'An act temporarily to provide for
the administration of affairs of civil government in the Philippine Islands, and for
other purposes,' the general commanding
the Division of the Philippines is hereby
relieved from the further performance of
the duties of military governor, and the
office of military governor in said archipelago is terminated. The general commanding the Division of the Philippines, and all
military officers in authority therein, will
continue to observe the direction contained
in the aforesaid instructions of the President, that the military forces in the Division of the Philippines shall be at all times
subject, under the orders of the military
commander, to the call of the civil authori



71
ties for the maintenance of law and order
and the enforcement of their authority.
"By the President:
" ELIHU ROOT,
"Secretary of ITVar'."
On the same day the President issued "a proclamation of peace and amnesty," declaring the war
in the Philippines at an end.
Major-General Otis testifies herein as follows:
45. Question. Where was the main insurrection army after the hostilities commenced?
Answer. It was driven to the north.
There were probably 4,000 to 6,000 to the
south of us in Cavite Province, who were
operating against our southern line, but the
great majority of the troops were to the
north, and after General MacArthur had
driven them back to the vicinity of Caloocan; they made a concentration there. My
scouts were out in front of these troops all
the time as far as Malolos, and they reported to me frequently.  They reported
that General Luna said he had concentrated
16,000 troops upon the front and left of
General MacArthur; but my account did
not verify that. They had about 6,000 men
on the north near Caloocan, but still they
surrounded Manila. We had broken them
up, and they were gathering themselves
together again.
46. Question. At the time of the outbreak, to what extent was this army organized?




72


Answer. They had organized this army
around Manila in four zones. There were
two zones, as they called them, to the north
and two zones to the south. It was organized after the Spanish practice, and quite
efficiently organized. It was a military
organization throughout.
47. Question. Who was the commander
in chief?
Answer. Aguinaldo, I suppose.
48. Question. Who were the immediate
subordinates?
Answer. Manila was commanded to the
north and south by two lieutenant-generals,
but Luna exercised a great deal of influence
in the north. There were two general
officers on the north of Manila and two on
the south.
49. Question. Up to what time did this
organization as an army continue; and if it
changed, how did it change?
Answer. Throughout that year, and the
following year until we had pulled ourselves
together
50. Question. You refer to the year 1898?
Answer. Yes, sir; until we made our
northern campaign, when I was informed
through insurgent sources that Aguinaldo
had chosen a new capital with the intention
of removing his forces into the mountains.
We acted very promptly. General MacArthur was upon the railroad at this time in
the vicinity of San Fernando, from where he
had moved to Los Angeles, which was about
12 miles distant. General Lawton moved a




73
column from San Fernando on the flank of
the insurgent army, and General Wheaton,
with a force of some 4,000 men, was sent
north by boat to the Lingayen Gulf coast to
occupy certain positions in order to cut off
Aguinaldo's retreat. By these movements
we bottled the insurgents up on the lowlands
and along the river. General MacArthur
proceeded rapidly to the north, General
Wheaton drove them   back upon General
MacArthur, and General Lawton drove them
in upon General MacArthur also, ald then
they commenced to disintegrate. The first
information I had of the total disintegration
came to me through a telegram   sent by
General MacArthur from Byambang, a short
distance from Lingayen (Gulf.
51. Question. When was that?
Answer. About the middle of November.
52. Question. This was in 1899?
Answer. Yes, sir; General MacArthur
stated that he had been informed that at a
meeting of the general officers of the insurgent army they had verbally agreed to
scatter their forces and adopt guerrilla warfare. Now, I do not know, but I believe
that agreement was in writing, but I have
never been able to find it. I searched for it,
but the only information I was able to secure
was the telegram of General MacArthur
which stated that it was a verbal agreement.
53. Question. Was that plan carried out
thereafter?
Answer. Yes, sir.
54. Question. Then what followed?




74


Answer. The troops were disorganized
and scattered. They were active all along
out lines. At this time they had an organized army at the south of Manila of 6,000 or
7,000 troops. As soon as we scattered the
forces through the north we turned to
the south; that was done in the month of
January.
55. Question. In January, 1900?
Answer. Yes, sir; our advance to the
north commenced about the 1st of November-probably 2d or 3d-and continued
pretty well through December; then we
swung back in January. We pursued them,
the insurgents, in the south until they were
scattered, so that during the month of April
following we (lid very little except to pick
up their arms.
56. Question. Was the result of this change
of tactics on the part of the insurgents to
lessen the efforts on your part or otherwise?
Answer. The troops were very active.
57. Question. Did you require any less
troops or more after that?
Answer. It required more afterwards. We
had at this time about 54,000 and had been
increasing all the time. We kept them busy.
We were occupying all of Luzon. We had
sent our troops clear to the south and strung
the (our) force in the Visayans Islands.
58. Question. You had  scattered your
troops to meet their method of fighting, is
not that so?
Answer. We had to scatter our troops in
Luzon. We had to pursue insurgents all




7 -


the time. Then in the southern islands we
had never taken possession. We then took
possession of a great many of the southern
islandls aand moved troops in them. We
had t sn     oos do      to se  troos  to Mindanao.
Major-G(eneral MacArthur testifies herein as
follows:
3:3. Question. Whalt methods were taken
to head this off, in tle \\way of orders, etc.?
Answer. I will have to state briefly a few
facts to get downt to that point. When the
insurgent field armlies were brokell up, in
No(vember, 1899, it was the belief and hope
that we had ended the insurrection. We
found out later it was simply a (change of
the form of action a1nd lnot the end of the
actionl-that is to say, there was a proposition, in the first instanc(e advocatted by Mabinii, who gave me quite an interestilg acc()ount of it, in behalf of all resistance to the
Unlited States being mlade by guerrilla warfare. He mailltainled that the strength of
the Filipino was in guel'rrilla warfare. He
advocated guerrilla war in the begilining.
He objected to the concentration of the arnmies, because he felt that American organization and discipline would overwhelm them,
but the other view prevailed in the hope that
they would, if successful, by means of an
organized army, convince the world of their
capacity to organize a government, and
therefore they concentrated and met us in
the early stages of the insurrection in considerable force.  The military operations




76


were regular-that is to say, they were tactical until the Filipino leaders became hopeless of success by means of concentrated
armies, which they then disbanded, but with
the understanding that they would go to the
provinces and organize the people and continue the resistance by means of guerrillas.
Now, during that transitory period, which
was simply the time necessary to change
from one form of action to another, I was
misled. I hoped that we had ended the
whole thing, and I was so strong in that
hope that I cabled the President of the
United States and asked permission to issue
a proclamation of amnesty.
34. Question. When was that?
Answer. That was in June, 1900. My
expectations were entirely disappointed,
although we got evidence from time to time
by captured papeers, etc., indicating that the
Filipinos themselves had conclulded that if
the election went against Bryan they wr-ould
consider that the verdict of the American
people and that they would surrender. I,
although doubtfully, acted on that view.
The election went, as you all know, against
Bryan. The subsequent action did not follow.   Things were   becoming strained
throughout the archipelago and it.was
apparent that something had to be done.
In the meantime I had come to the conclusion that the guerrillas in the field were
supported by the towns-that is to say, each
town was the center of a zone of operation
from which information and supplies were




77


sent to the leaders in the field. Furthermore, the center of operations was in
Manila. I determined to initiate a new
system and more drastic operations throughout the archipelago, and issued a proclamation in December, 1900, which brings us to
the point raised by the question as to what
action was taken to head off contraband
trade and intercourse. Now, we had conducted a war in the Philippines on such a
principle that people living in Manlila hardly
realized that a war was in existence. The
foreign Ipopulation there, which composed
all the great commercial houses of the city,
felt so little restricted in consequence of the
war that they had forgotten almost entirely
their obligations as residents of an occupied
place. An occlupied place, under a military
government, is a place that is occupied by
the troops of that government, and in that
place everyboly is bound to obey the law of
the commanding general and be loyal to the
Government which is represented by the
army. I was satisfied that many of these
people didl not understand this obligation.
The Filipinos themselves did not understand it. They attached jurisdiction to a
Filipino wherever he might be. They ramified the occupied places with their secret
agents, who exercised their jurisdiction and
enforced their laws right under the noses of
the American officers, and the Filipino people would even submit to capital punishment, which we called assassination, but
which the insurgent leaders called simply






78


the enforcement of their own laws; but
rather than protect themselves by giving
information, which in many instances they
could have done by stepping across the street
to the quarters of an American officer, they
submitted to this, evidently in the belief
that the leaders were acting within their
legal rights. My purpose was to instruct
everybody-the European     populatiol  in       4
Manila and the Filipino population of the
archipelago, includingl the Filipino leadersto the effect that everybody living in an
occupied place owed loyalty and allegiance,
as far as their actions were concerned, to
the United States, and in pursuance of that
llpulrpose I issued the proclamation of December 20, 1900, which is simply an amplification of Mr. Lincoln's views expressed in
General Orders, No. 1(00, in 1863. The first
section of that proclamation is a general
discussion of the law of occupied Iplaces,
and the second section prescribed the duties
of people living therein, and the third had
particular reference to the people of Manila
and their duties ulnder that proclamation.
That proclamation went forth, ctae7 the w'ar,cwts prosecuted( in ecery direction'? wtiith reiieted  a
50. Question. How long did that warfare
continue; that is actively?
Answer. It continued in great violence
down to the 28th of March, 1901, I think it
was, when Aguinaldo was captured. That
was the turning point. Aguinaldo was instrumental, under my persuasion and advice,




79


in bringing about a great many surrenders
thereafter of the most difficult leaders in the
island, and from that time on the insurrection diminished with such rapidity that
when I left the archipelago on the 4th of
July, 1901, there were only two large groups
left. One was in Samar and another in
Batangas, and we continued active operations against these two points until very
recently.
51. Question. You have referred to the
testimony of (General Otis here regarding
the lperiod in 1900 long about June, which,
according to General Otis's idea, the country was largely lpacified?
Answer. Yes, sir.
52. Question. At the time that he speaks
of, was this guerrilla warfare going on 1?
Answer. Yes, sir; it hlad not reached its
violent stage, however, because it was the
transitory period, and furthermore I was
practically of the same view of General Otis
at that time, and I hoped that as we had
hammered their armies to l)ieces and they
had disappeared into lirmbo that that was
the end.
453. Question. About when did it become
applarent to you that that pacific condition
or supposed pacific condition was unreal"?
Answer. I had    absolutely  convincing
proof of that when one of the small parties
under General Funston captured General
Garcia. On General Garcia we found an
order-which is published in my first report,
I think-giving him   dictatorial authority
8812-036 -



80


and extending to him the power judicial and
political, including life and death, throughout a certain zone, and when I got hold of
General Garcia I found out the whole
scheme. We found this written order on
Garcia. Garcia was captured on the 6th of
May, 1900. He had on him Aguinaldo's
order, as I have just described. About November 12, 1899, a council of war was held
at Bayambang, when they determined that
they were unequal to meet the Americans in
the field. A general was to go to each province and organize that province for guerrilla
warfare. Now, according to Garcia in a
conversation with me, he said that similar
orders were issued to each of the men who
went into separate zones. Now, that judicial power meant dictatorial control over
everybody. I might add, in expllanation of
my previous remarks, that this man Garcia,
who was one of their ablest and bravest
men, but was uneducated, claimed this right
of jurisdiction, which was then being exercised in occupied places and which I have
previously described.
54. Question. Do I understand you, General, that there were various zones in which
the commanders had these same instructions?
Answer. Yes, sir.
55. Question. And those zones extended
over the whole territory?
Answer. They embraced the entire archi -
pelago. There was a distinguished commander in each one.




81
Lieut. Col. E. H. Crowder, judge-advocate,
U. S. Army, testifies herein as to conditions prevailing in Manila during this time. His testimony
is entitled to great weight, because of his exceptionable opportunities for ascertaining the facts,
his demonstrated ability as a military officer, and
his knowledge of the law. His direct examination
is quoted in full.
1. Question. What period have you served
in the Phillipines?
Answer. From the 26th of July, 1898,
until the 4th of July, 1901.
2. Question. In what capacity did you
serve there?
Answer. I w ent out as judge-advocate of
the expeditionary force with Major-General Merritt, and thereafter served in various
capacities. Do you wish me to state them?
3. Question. Yes; alnd the rank you had
then.
Answer. Lieutenant-colonel and judgeadvocate of volunteers and major and judge -
advocate of the Regular Army. My first
service was on the Joint American-Spanish
Commission to arrange the terms of the
surrefider of the Spanish army. Thereafter
I reported to General Otis in a special capac
ity, which I do not remember received a
name, but the duties of which were mostly
with reference to legal questions arising in
the administration of affairs under his control. I was then designated by General Otis
to accompany General Miller to Iloilo in the
preliminary operations against that point,




82


and upon my return to Manila I served as a
member of the joint commission convened by
General Otis and General Aguinaldo to consider the conditions of the Philippines, with
special reference to whether peace conditions could be established more firmly than
they were at that time. When the judiciary
was reestablished I served as an associate
justice on the supreme court of the island,
which was from June of 1899 to some time
in August of 1900. I served also as president
of the board of war claims, which was in
session during most of our occupation in the
Philippine Islands. Upon the accession of
General MacArthur to the chief command I
became secretary to the military government.
4. Question. That was when'?
Answer. On May 5, 1900, with supervision of the administration of governmental
affairs there under the military governorship
in all the departments.
5. Question. Were you chiefly (luring this
time stationed at Manila?
Answer. With the exception I have stated
of one visit to the Visayan Island arnd Iloilo.
6. Question. Did your official work of the
various kinds give you any opportunity of
observing the conditions of things in Manila
with resplect to the relations of the populace
of Manila to the insurgent movement?
Answer. Yes; I had very ample opportunity along that line for observing the con -
ditions.
7. Question. From your observation and
means of information, you may state what




83
was the sentiment of the people of Manila,
or of any portion of it, as regards the insurrection at the time of the outbreak; that
was in February, 1899.
Answer. Yes, sir; Februaly 4, 1899. A
very great majority of the native Filipinos
living in Manila were undoubtedly hostile
to American interests at that time. A very
slender minority, but which minority included the better educated classes, were,
I think, supporters of American interests.
The foreign element, if it aligned itself at
all, would probably be considered as favorable to the United States, but its general
position was one of neutrality, I think.
8. Question. What change, if any, took
place in this sentiment, as you have just
described, by the people of Manila during
the continuance of the insurrection?
Answer. There were, of course, accessions to the class disIposed to be friendly
toward American interests, but the majority of the people was, I think, hostile
during the whole period of the military
operations of the island.
9. Question. In what way did they manifest their symyathy with the insurrection
movement-what, if anything, did they do
to aid it?
Answer. Manila was a center of activity
upon1 the part of the insurgent leaders in the
way of encouraging the insurrection in all
parts of the archipelago and in aiding them
materially by way of contributions. There
were, of course, as you know, some actual




84


fighting within the city of Manila and a
great deal of fighting in the territory immediately contiguous to the city and that latter
fighting continued down to a comparatively
recent date. During the earlier portion of
the  occupation the military  operations
within the city included deliberate attempts
to burn the entire city, which were partially
successful. Minor attempts to accomplish
the same purpose occurred at other times,
but the actual fighting within the corporate
limits of Manila was gotten under control at
an early date-by June, I should say, of
1899. Thereafter, I know of no instances
where there were hostile operations, within
the city, of contending forces.
10. Question. State if this situation
changed in any way.
Answer. I have already referred to the
encouragement and the material support
given the insurrection by the inhabitants of
Manila. The extent of it was not understood by me until after the date of the
issuance of the proclamation by' General
MacArthur on December 20, 1900; that
proclamation enjoined much more rigorous
military policies than had theretofore prevailed, and contained special admonition to
the people of Manila, who at this time were
suspected, and from and after its issuance
and down to the date that I left the Philippine Islands on July 4, 1901, numerous
arrests were made of people living in Manila
upon charges alleging complicity in the
insurrection which involved at least one of




85


the principal merchants of the city. At no
time during the occupation were there more
arrests made for complicity il the insurrection than between December 20, 1900, and
July 4, 1901.
11. Question. Did you have any opportunity to know of the dealings between the
merchants there in Manila and the insurgenlts?
Answer. I did not think that they had
been extensive until after the issuance of
the proclamation of December 20, 1900,
when I was made aware that they had been
extensive throughout all periods of our occupation. I might say further that it was with
reference to these unusual conditions that
military government was contilue(d in the
city of Manila longer than other places, and
down to the (late I left, July 4, 1901, the
affairs of the city were being administered
by the )rovost-marshal -general and his military subordinates.
12. Question. For our information I wish
you would briefly describe the situation and
extent of the city of Maniila-I mean its
geographical extent and its population at
that time.
Answer. The city of Manila covers a considerable area. It is made up of the walled
city, in which the official world over there
exists largely, and then of a commercial
portion klownn as Tondo and Binondo, in
which district the customs listrict is located
and the large warehouses and wholesale
interests, and then of numerous suburbs,




which are mostly given over to residences.
The area is quite extensive-greater than
would be found usually in a city of the
United States for the same population.
The population at the time of its capture
was given out from official sources by the
Spaniards, who had been in charge, at about
300,000. A great many left the city to join
the insurrection when hostilities commenced
between the United States and the insurgents, and the population was notably
reduced for a time. I should think it varied
during our occupation from   185,000, all
told, to 275,000. There was always a large
pol)ulation coming and going.,The population included at least 8-0,000 Chinese, and
quite large English and German settlements.
13. Question. About what proportion of
the city during that time was native?
Answer. About at least three-fourths of
it; I should say 75 per cent.
14. Question. Was Manila, during the
continuance of the insurrection, the base of
suppllies?
Answer. Manila was at all times the base
of supplies for our army, and in whatever
part of the archipelago it w-as operating reserved stores were held there; forces arriving from the United States were received
there and distributed throughout the archipelago from that point. It was, at all times,
up to July 4, 1901, a scene of great military
activity.
15. Question. After the fighting had been
transferred from  the vicinity of Manila,




87
about what number of troops were kept
there usually?
Answer. A brigade, which was made up
of the provost guard, under the command of
the provost-marshal. It varied in strength
from two to three regiments. There were
generally detachments of some regiments
there. Its average strength would be, I
should say, about two regiments, but during
the latter part of our occupation, from, say,
December, 1900, until July 4, 1901, the
forces were supplemenlted by the organization of what was known as the metropolitan
police, which likewise included several hundred men, mostly discharged American
soldiers. The force was supplemented to
meet these unusual conditions which I have
described for the purpose of making the
arrests which the policy of the commanding
general, under the proclamation of December, called for.
16. Question. Is there anything further
you desire to say?
Answer. One of your questions and my
answer thereto lperhaps leaves me in the
position of saying that hostilities in and
around Manila ceased after June, 1900.
There was fighting w-ithin 7 miles of Manila
in the latter part of the period I am describing and it has been continued since that
time in the contiguous provinces of Batangas
and Laguna, and only ceased in these contiguous provinces in April, 1902. I am referring now to General Bell's recent campaign and the reconcentration he enforced




in the provinces I have named; so that in
provinces contiguous or practically adjacent
to the province of Manila the fighting has
continued and military operations have continned down to April, 1902. The military
operations concluding April, 1902, under
General Bell in the provinces adjacent to
Manila, resulted in the capture of 4,000
small arms and some 14 cannon.
That the conditions prevailing in the Philippine
Islands justified, as a military necessity, the action
taken to regulate trade with the inhabitants is
made apparent by consideration of the situation as
a whole, and also by the following report to the
Secretary of the Navy from Rear-Admiral George
C. Remey, as Commander in Chief, United States
naval forces on Asiatic Station in 1900. (See
Magoon's Reports, pp. 322-324.)
OFFICE OF COMMANDER IN CHIEF,
U. S. NAVAL FORCE ON ASIATIC
STATION, FLAG(SHIP BROOKLYN,
(.Catite, P. I., Jtue 14, 1900.
SIR: Referring to the Department's telegram of the 12th instant, inquiring "Did
Admiral, about May, 1899, prohibit trade in
the Philippines except with ports of Manila,
Iloilo, Cebu, and Bacolod':':?: I
have the honor to amplify here my telegraphic reply of the 13th instant, which was:
"Files show. that Admiral in May, ninetynine, forbade all trade not in American possession, especially in the islands Samar,
Leyte, and Cebu. Vessels found in insur



89
gent ports with regular clearances previously
granted by American authorities ordered to
cease loading or discharging and depart
immediately."
2. Quoting from the papers on file April
24, 1899, the Commander in Chief wrote to
the military governor:
"::     I am now trying to prevent
all supplies reaching the insurgents from
Manila, and have several ships and boats
engaged breaking up that trade.
"I hope that no ships are being cleared
from this port for ports in the south not in
in our possession, as all the information
makes it conclusive to my mind that they
are an aid to the insurgents both in supplies
and information. I intend to do everything in my power to break up this trade.
And on May 7, 1899:
~    * * I must again remind you of the
damage done to our cause by the captains
of the ports of Iloilo and Cebu clearing vessels for ports in the possession of the insurgents. The captains of the vessels on patrol
duty are constantly bringing to my attention
the difficulty of stopping traffic between
insurgent ports while this practice continues.
If we are to see the end of this struggle
during our lifetimes, I can not urge too
strongly that orders be given to clear no
vessels except between ports in our possession, as I am convinced that nearly every
one of the vessels engaged in trade with




90


insurgent ports is carrying aid and comfort
to the enemy.
* *      In the meantime I shall continue to do everything in my power to break
up all communication between the insurgents by water.:
3. May 9 the commander in chief telegraphed to the C(astine at Iloilo:
Return to Samar and prevent all trade.
And May 14:
Congratulations on your good work. Extend it to Leyte and Cebu. Military governor has given orders not to clear vessels to
any port not in our possession. Turn prizes
and prisoners over to Sperry. The prizes
should be secured in the river. Let the
crew go.
4. May 17 the commanding officer of the
Yorktowin telegraphed the commander in
chief, evidently referring to the telegrams
just quoted:
I ulnderstand from your telegrams to Very
that all trade is to be prevented with ports
in Samar, Leyte, and Cebu not in our possession, and that vessels which may be found
in such ports with regular clearances previously granted by our authorities are to be
ordered to cease loading or discharging and
depart. Do these instructions extend to all
Philippine ports not in our possession, and
are they to be given to cruisers calling here?
His understanding of the commander in
chief's orders was confirmed the same day,
as follows:
"Sperry, Iloilo: Your interpretation of




91


orders regarding shipping is correct. Give
orders to other vessels.   Charlesto*n will
leave to-morrow or next day for Iloilo.
DEWEY."
And thereupon the commanding officer of
the Yorktown, as senior officer present at
Iloilo, issued the following instructions,
dated May 17, 1899:
"(1) In accordance with telegraphic directions of the commander in chief, dated
May 17, 1899, the commanding officers of
vessels will be governed by the following
instructions:
"(2) All trade with Philippine ports not
in the possession of the United States authorities is to be prevented, particularly
with such ports in the islands of Samar,
Leyte, and( Cebu.
(3) Should any vessels be found in ports
which are in the possession of the insurgents
with regular clearances heretofore granted
by the United States authorities they will
be ordered to cease loading or discharging
immediately and delpalrt."
5. The foregoing extracts appear to be the
most pertinent of all matter on file. A telegram of May 18 from the commander in
chief to the commanding officer of the
Yorktown may be included:
"Vessels allowed to clear for ports in
our possession; commanding officers use
discretion.
As also part of a letter, dated May 26,
from Captain Barker, as commander in




92


chief on the station, to the commanding
officer of the Princeton:
2. "    * *  Your observation upon the
desirability of keeping up a strict blockade
expresses exactly my own views, and Admiral Dewey was of the same mind.
"3. Orders to enforce a strict blockade
of ports in possession of the insurgents were
given some time ago."
A number of papers in the files overhauled
in the search for the information here furnished indicate that commanding officers
often acted under oral instructions only, of
which there is no record here.
Very respectfully,
GEO. C. REMEY,
Rear-Adnmirall Un ited States Na?,y,
Comllmanrder in Chief.
The SECRETARY OF THE NAVY,
Navy Departmente, Washington, D. C.
(Buretau of Navict gatio?.)
The conduct and services of the United States
Army in the Philippines in dealing with the conditions then and there existing were described by
Secretary Root in General Orders, as follows
(see Annual Report of the Secretary of War, 1902,
p. 14):
WAR DEPARTMENT,
lWashington, July 4, 1902.
To the Arny of the United States:
The President upon this anniversary of
national independence wishes to express to
the officers and enlisted men.of the United
States Army his deep appreciation of the




93


service they have rendered to the country
in the great and difficult undertakings which
they have brought to a successful conclusion
during the past year.
The President thanks the officers and
enlisted men of the Army in the Philippines, both regulars and volunteers, for the
courage and fortitude, the indomitable spirit
and loyal devotion with which they have put
down and elnded the great insurrection
which has raged throughout the archipelago
against the lawful sovereignty and just
authority of the United States. The task
was peculiarly difficult and trying. They
were required at first to overcome organized
resistance of superior numbers,well equipped
with modern arms of precisioll, intrenched
in an unknown country of mountain defiles,
jungles, and swamps, apparently capable of
interminable ldefelnse. When this resistCance had been overcome they were required
to crush out a general system of guerrilla
warfare condlucted among a people speaking
unknown tongues, from whom it was almost
impossible to obtain the information necessary for successful ulrsuit or to guard against
surprise and ambush.
The enemies by whom they were sur'rounded were regardless of all obligations
of good faith and of all the limitations which
humanity has imposed upon civilized warfare. Bound themselves by the laws of war,
our soldiers were called upon to meet every




94


device of unscrupulous treachery and to con -
template without reprisal the infliction of
barbarous cruelties upon their comrades and
friendly natives. They were instructed,
while punishing armed resistance, to conciliate the friendship of the peaceful, yet
had to do with a population among whom it
was impossible to distinguish friend from
foe, and who in countless instances used a
false appearance of friendship for ambush
and assassination. They were obliged to
deal with problems of communication and
transportation in a country without roads
and frequently made impassable by torrential rains. They were weakened by tropical
heat and tropical disease. Widely scattered
over a great archipelago, extending a thousand miles from north to south, the gravest
responsibilities, involving the life or death
of their commands, frequently devolved
upon young and inexperienced officers beyond the reach of specific orders or advice.
Under all these adverse circumstances the
Army of the Philippines has accomplished
its task rapidly and completely. In more
than two thousand combats, great and small,
within three years, it has exhibited unvarying courage and resolution. Utilizing the
lessons of the Indian wars, it has relentlessly followed the guerrilla bands to their
fastnesses in mountain and jungle and
crushed them. It has put an end to the
vast system of intimidation and secret assas -
sination by which the peaceful natives were
prevented from taking a genuine part in




95


government under American authority. It
has captured or forced to surrender substantially all the leaders of the insurrection.
It has submitted to no discouragement and
halted at no obstacle. Its officers have
shown high qualities of command, and its
men have shown devotion and discipline.
Its splendid virile energy has been accompanied by self-control, patience, and magnanimity. With surprisingly few individual
exceptions, its course has been characterized
by humanity and kindness to the prisoner
and noncombatant. With admirable good
temper, sympathy, and loyalty to American
ideals its commanding generals have joined
with the civilian agents of the Government
in healing the wounds of war and assuring
the people of the Philippines the blessings
of peace and prosperity. Individual liberty,
protection of personal rights, civil order,
public instruction, and religious freedom
have followed its footsteps. It has added
honor to the flag which it defended, and has
justified increased confidence in the future
of the American people, whose soldiers do
not shrink from labor or death, yet love
liberty and peace.
The President feels that he expresses the
sentiments of all the loyal people of the
United States in doing honor to the whole
Army, which has joined in the performance
and shares in the credit of these honorable
services.
This general order will be read aloud at
parade in every military post on the 4th day
8812-03   7




96


of July, 1902, or on the first day after it
shall have been received.
The United States considers it unnecessary to
recite further particulars respecting the conditions
which existed in the Philippines in order to establish that the condition of war prevailed therein
and justified the United States in exercising the
rights of a belligerent.
The attention of the court is called to the fact
that in dealing with foreign nations, notably Great
Britain, Germany, France, Belgium, the Netherlands, Switzerland, Japan, and China, in matters
affecting trade, immigration, and kindred subjects,
the United States justified its actions by declaring
and relying on the fact that it exercised in the
Philippine Islands the rights of a belligerent.
None of these nations has ever challenged the
right of the United States to advance such justification.
In the Prize Cases (2 Black, 669) the court referred to the proclamation issued by the Queen of
England on the 13th day of May, 1861, ".recognizing hostilities as existing between the Government
of the United States of America and certain States
styling themselves the Confederate States of
America."   The court then say:
This was immediately followed by similar
declarations or siliet (icq(uiescence by other
natiows. After such an official recognition
by the sovereign a citizen of a foreign State
is estopped to deny the existence. of a war




97
with all its consequences as regards neutrals. They can not ask a court to affect
a technical ignorance of the existence of a
war *:: and thus cripple the arm of
the Government and paralyze its power by
subtle definitions and ingenious sophisms.
It is true that Congress did not formally declare
war upon the insurrection. A war originating in
insurrection against lawful authority is never
formally declared or proclaimed. (Boyd's Wheaton on Int. Law, par. 297a.)  War is a condition,
not an act of the legislature. The existence of
that condition is a fact that proclaims itself.
If the assent of Congress were essential to the
conduct of this war, it is to be found in the
numerous acts of Congress adopted to enable
the Government to deal with the insurrection as
circumstances required. Among such acts is that
known as the Spooner Amendment, providing
that "All mnlit tary  4 *::  powterfs necessary to
'govern the Philippine Isl'ds   * * shall be
exercised in such manner as the President of the
United States shall direct."
There has been prepared in the War Department
a compilation of the "treaty messages, proclamations, correspondence, orders, reports, and acts of
Congress bearing on the question of whether a
status of war existed in the Philippine Islands during the period named in the petition" herein.
This compilation has been published, and the
attention of the eourt is directed to the copies




98
thereof, filed in this case; especially td the fiftyseven acts of Congress referred to on pages 8 to 12.
In the Prize Cases, 2 Black, 670, the court say:
If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every
act passed at the extraordinary session of
the legislature of 1861, which was wholly
employed in enacting laws to enable the
Government to prosecute the war with vigor
and efficiency. And finally, in 1861, we
find Congress "ex najore cautela" and in
anticipation of such astute objections, passing an act "approving, legalizing, and
making valid all the acts, proclamations,
and orders of the President, etc., as if they
had been issued land done tunder the previotus
express autthority and directioh of the Congress of the United States."
There is one other question of fact to which attention is directed. That question is raised by
the contention of the claimant that the order of
July 12, 1898, imposing customs duties, was issued
as a war measure of the Spanish-American war;
that as such it could not be utilized as a measure
to meet the necessities of the insurrection; and if
the President, as Commander in Chief, decided to
impose the restrictions of that order as a means of
suppressing the insurrection he must issue a new
order continuing the previous order in force.
(Brief of Claimant, p. 25, also p. 35.)
The fact that the military commanders maintaining the occupancy of the territory, and the




99
official agencies of the military government, by
and with the permission of the President, continued to enforce the provisions of the order dated
July 12, 1898, is sufficient to establish that said
order was continued in force and effect as a means
of dealing with the insurrection. However, there
were many orders issued continuing in force the
provisions of the order dated July 12, 1898, and
issued by authority resulting from military occupancy as an incident of actual and existing war.
A compilation of these orders issued by the military authorities from July 12, 1898, to December
3, 1901, is filed in this case, and the attention of
the court is directed thereto.
On January 16, 1899, the War Department
promulgated an order issued by the President on
December 21, 1898, containing the following provisions (circular No. 4, Division of Customs and
Insular Affairs, War Department):
The destruction of the Spanish fleet in
the harbor of Manila by the United States
naval squadron, commanded by RearAdmiral Dewey, followed by the reduction
of the city and the surrender of the Spanish
forces, practically effected the conquest of
the Philippine Islands and the suspension
of Spanish sovereignty therein.
With the signature of the treaty of peace
between the United States and Spain by
their respective plenipotentiaries at Paris,
on the 10th instant, and as the result of the




100


victories of American arms, the future control, disposition, and government of the
Philippine Islands are ceded to the United
States.  In fulfillment of the rights of
sovereignty thus acquired, and the responsible obligations of government thus
assumed, the actual occupation and administration of the entire group of the Philippine
Islands becomes immediately necessary, and
the military government heretofore maintained by the United States in the city,
harbor, and bay of Manila is to be extended
with all possible dispatch to the whole of
the ceded territory. * *
Within the absolute domain of military
authority, which necessarily is and must
remain supreme in the ceded territory until
the legislation of the United States shall
otherwise provide, the municipal laws of the
Territory in respect to private rights and
property and the repression of crime are to
be considered as continuing in force, and to
be administered by the ordinary tribunals
so far as practicable. The operations of
civil and municipal government are to be
performed by such officers as may accept
the supremacy of the United States by taking the oath of allegiance, or by officers
chosen as far as may be practicable from
the inhabitants of the islands.
While the control of all the public property and the revenues of the State passes
with the cession, and while the use and
management of all public means of transportation are necessarily reserved to the




101
authority of the United States, private
property, whether belonging to individuals
or corporations, is to be respected except
for cause duly established. The taxes and
duties heretofore payable by the inhabitants
to the late government become payable to
the authorities of the United States, unless
it be seen fit to substitute for them other
reasonable rates or modes of contribution
to the expenses of government, whether
general or local..
All ports and places in the Philippine
Islands in the actual possession of the land
and naval forces of the United States will
be opened to the commerce of all friendly
nations. All goods and wares, not prohibited for military reasons by due announcement of the military authority, will
be admitted upon payment of such duties
and other charges as shall be in force at the
time of their importation.
Finally, it should be the earnest and paramount aim of the military administration to
win the confidence, respect, and affection of
the inhabitants of the Philippines by assur -
ing to them in every possible way that full
measure of individual rights and liberties
which is the heritage of free peoples, and
by proving to them that the mission of the
United States is one of benevolent assimilation, substituting the mild sway of justice
and right for arbitrary rule. In the fulfillment of this high mission, supporting the
temperate administration of affairs for the
greatest good of the governed, there must




102


be sedulously maintained the strong arm of
authority, to repress disturbance, and to
overcome all obstacles to the bestowal of
the blessings of good and stable government
upon the people of the Philippine Islands
under the free flag of the United States.
In General Orders, No. 5, issued from the office
of the United States military governor of the Philippine Islands, Manila, February 22, 1899, appears
the following:
II. The United States Provisional Customs
Tariff and Regulations, published in General
Orders, No. 10, of 1898, from this office,
prescribed by the President of the United
States, and by that authority directed to be
enforced at all ports of the Philippine Islands
within the United States occupation, are
hereby ordered to be placed in force at the
port of Iloilo, Panay. The United States
military authorities at that city will attend to
the details necessary to put these tariff regulations in operation, adopting the methods
now in use at Manila, in so far as the same
may be applicable.
General Orders, No. 49, office of the military
governor in the Philippine Islands, Manila, P. I.,
October 23, 1899, provided as follows:
The customs, tariffs, and regulations promulgated in General Orders, No. 26, of last
October, from this office, having been
amended from time to time since that date,
the following revised printed schedules of
the same, which contains all amendments




103
to September 1 last, is published for the information and guidance of all concerned.
Upon the occupation of any ports or places
in the Philippine Islands by the forces of
the United States not as yet in the United
States occupancy this order will b.e proclaimed and enforced.
The question involved herein is not a question
of schedules. It is a question of the right of
the military authorities by exercise of belligerent
right to regulate trade with territory affected by
an insurrection. An examination of the orders
included in the compilation above referred to,
more especially the order issued by the President
dated May 3, 1899, establishes the fact that the
military authorities of the United States engaged
in suppressing the insurrection in the Philippines
did exercise such right.
It must also be remembered that the continued
enforcement of the' provisions of the order of
July 12, 1898, by said military authorities was ratified and confirmed by act of Congress approved
July 1, 1902 (post, p. 202 et seq.).
The claimant apparently is of opinion that it
possessed the right to trade with the inhabitants
of Manila and Iloilo, and that the exactions complained of were infringements upon that right.
The fact is the right to trade with said cities terminated, by operation of the laws of war, as soon
as they became subject to military occupancy, and
while that occupancy continued trade with said




104
cities was unlawful unless affirmatively authorized
by the military authorities maintaining the occupancy. If the President's orders, of which complaint is made, were not in force at the time these
goods were brought into Manila and Iloilo, then
such importations were gross violations of the
laws of war, and the claimant ought not to receive
the assistance of the courts of the United States
in deriving further benefit from its wrongdoing.
It being established that the condition of war at
one time prevailed in the Philippine Islands, it
becomes necessary to ascertain when that condition ceased, in order to determine whether any
of the exactions of which claimant complains
were made subsequent to the termination of that
condition. As to that question there is no room
for doubt, for Congress has declared the rule of
evidence for ascertaining that fact. The act of
Congress approved July 1, 1902, entitled "An act
temporarily to provide for the administration of
the affairs of civil government in the Philippine
Islands, and for other purposes," recognized as
then existing an insurrection in the Philippines.
Section 3 of that act declares as follows:
That the President of the United States,
during such time as and whenever the sovereignty and authority of the United States
encounter armed resistance in the Philippine Islands, until otherwise provided by
Congress, shall continue to regulate and
control commercial intercourse with and




105
within said islands by such general rules and
regulations as he, in his discretion, may
deem most conducive to the public interests
and the general welfare.
Section 6 of that act declares as follows:
That whenever the existing insurrection
in the Philippine Islands shall have ceased
and a condition of general and complete
peace shall have been established therein,
and the fact shall have been certified to the
President by the Philippine Commission,
the President, upon being satisfied thereof,
shall, etc.
Pursuant to the provisions of said enactment the
Philippine Commission, on September 8, 1902,
adopted the following:
Resolved, That the Philippine Commission
hereby certifies to the President of the
United States that the recently existing
insurrection in the Philippine Islands has
ceased, and a condition of general and complete peace has been established herein;
that this certificate is made in accordance
with the provisions of section 6 of "An act
temporarily to provide for the administration of the affairs of civil government in the
Philippine Islands, and for other purposes,"
and that the Commission recommends to
the President of the United States that he
order a census of the Philippine Islands to
be taken by the Philippine Commission in
accordance with the provisions of said
section.




106


Be it further resolved, That the foregoing
certificate does not and is not intended to
certify that the conditions surrounding the
Lake Lanao Moro district in Mindanao,
which district forms but a small part of the
territory occupied by the Moros, are those
of absolute and complete peace, but that in
the opinion of the Commission the language
of section 6 and the certificate therein provided for were not intended by Congress to
require before such census should be taken
that complete peace should exist in the
country of the wild Moros, who never have
taken any part in the insurrection referred
to in section 6. (See Pub. Laws and Res.
Phil. Comn., quarter ending Nov. 30, 1902.)
Prior to the adoption of this resolution, and on
the 4th of July, 1902, the President issued a proclamation of peace and amnesty, declaring, among
other things, as follows:
Whereas the insurrection against the
authority and sovereignty of the United
States is now at an end and peace has been
established in all parts of the archipelago,
except in the country inhabited by the Moro
tribes, to which this proclamation does not
apply
The United States therefore contends that by
reason of the insurrection against the sovereignty
of the United States the condition of war prevailed in the Philippine Archipelago from February 4, 1899, until July 4, 1902.




107
The claimant contends that the United States,
in dealing with the insurrection in the Philippine
Islands, was not authorized to exercise the rights
of a belligerent, for the reason that the insurgents
had no organized political government. The
question as to whether or not the insurgents in
the Philippines had an organized political government would be important if the case at bar were
a criminal action against one or more insurgents
for piracy, murder, or a kindred offense, based
upon action taken in promoting that insurrection.
The existence of an insurgent civil organization
becomes material when the insurgents assert for
themselves the authority to exercise belligerent
rights. The authority of the lawful sovereign to
exercise belligerent rights arises from conditions
produced by the acts of violence, hostilities, and
military operations of armed bands of insurgents.
This authority is possessed by the lawful sovereign
because he is charged with the responsibility of
maintaining peace and order, preserving the integrity of the realm, protecting the sovereign and
property rights of the State, and discharging treaty
and other obligations resulting from membership
in the family of nations. The right does not
attach to the insurrectionary association until, by
military success or otherwise, the antecedent
duties devolve upon it.
The contention of claimant to which reference




108


is made appears several times in its brief. On
page 14 it is stated as follows:
The intercourse with an enemy, which is
considered unlawful, and which the Government, whether through the President or
through Congress, has the right to prohibit
orrestrict, is intercourse with such a public
enemy as is designated in the rules laid
down by the authorities cited at pages 6 to 9.
No such enemy, no such organized and controlling power, no such mastery and possession of territory to the exclusion of- our
governmental agencies exists in the Philippines, according to the public and official
declarations of the Government through the
Secretary of War.
On page 21 of its brief claimant says:
There is no possession and control of
territory, no organized government, no legislature, no laws, no sanction for their
enforcement, no authority competent to
compel obedience and whom it is lawful
to obey,. no interruption of our courts of
justice.
The existence of an insurgent civil government
and the necessity for dealing with it throughout
the insurrectionary period is known to everyone
familiar with the progress of affairs in the Philippine Islands during that period. The reports of
the Secretary of War, the military officers in
charge of military and civil affairs in the islands,
both Philippine commissions (Schurman and
Taft), and the debates in the United States Con



109
gress contain many references thereto. It secured
the recognition and allegiance of millions of people
and exercised dominion not only outside of the
places occupied by the American forces, but in
Manila and other places actually within the American lines, and presents an interesting instance of
im.peritm in imperio. With reference to-the situaation in December, 1900, General MacArthur testifies herein as follows (MacArthur's dep., ques.
34, p. 18):
They attached jurisdiction to a Filipino
wherever he might be. They ramified the
occupied places with their secret agents, who
exercised their jurisdiction and enforced
their laws right under the noses of American
officers, and the Filipino people would even
submit to capital punishment, which we
called assassination, but which the insurgent
leaders called simply the enforcement of
their own laws; but rather than protect
themselves by giving information, which in
many instances they could have done by
stepping across the street to the quarters of
an American officer, they submitted to this,
evidently in the belief that the leaders were
acting within their legal rights.
Grenral MacArthur further testifies (Ques. 1, redirect, p. 283):
Do I understand you, General, that at the
same time that territory was being occupied
there were still more or less secret sympathy
with and support on the part of the insurrection movement in that same territory?




110


Answer. The support was almost unanimous. How far the sympathy extended I
do not know, but in active support of the
insurrection they were almost a unit.
In the proclamation of peace and amnesty issued
by the President July 4, 1902, reference is made to
said civil government as follows:
Whereas, during the course of the insurrection against the Kingdom of Spain and
against the Government of the United
States, persons engaged therein, or those in
sympathy with and abetting them, committed many acts in violation of the laws of
civilized warfare-but it is believed that
such acts were generally committed in ignorance of those laws and under orders issued
by the civil insurrectionary leaders-"
The grant of amnesty set forth in said proclamation contained the following:
Now, therefore, be it known that I, Theodore Roosevelt, President of the United
States of America, *      * do hereby
proclaim and declare  * i:   a full and
complete pardon and amnesty to all persons
in the Philippine Archipelago * * * for
all offenses political in their character committed in the course of such insurrections
pursuant to orders issued by the civil or
military insurrectionary authorities.  *  *
There are now on file in the Insular Bureau of
the War Department a vast number of captured
insurgent documents which afford authentic evi



1l1
dence, in tangible form, respecting the plans, purposes, methods, character, scope,d and ccomplishments of the insurgent civil organization. These
documents are being classified and arranged for
the use of the Department, Cotlgress, courts, and
historical writers. The officer in charge of this
work, Capt. John R. M. Taylor, U. S. A., has
p)repared a report on the "Organization for the
Administration of Civil (overnlment instituted
by Emilio Aguinaldo ald his followers in the
Philippine Archipelago, " containing a compilation
of some of the organlic d(ecrees, proclamations,
legislative acts, revenne measures, jiudicial and
administrative )proceedings, collections of customs
duties, taxes, etc., andl other acts of said civil
government as disclosed bly the cal)turel( documents and records in the possession of the War
Department. This report has been lpublished and
copies filed herein for collsi(leration by the court.
As stated in said relport, Aguinaldo and other emissaries of the Hongkong jle to arrived in the Philippile Islands, May 19, 1899), and were permitted by
the American authorities to establish themselves at
Cavite. They immediately began the work of providing an organization lwhich should assume the
administration of civil government. On May 24,
1898, Aguinaldo issued a proclamation declaring
himself dictator of the islands and promising to
surrender his authority to a p)resident and cabinet,
to be appointed at such time as a constitutional
8812-03 ---8




112
assembly should be convened, which would be
when the islanls had passed into his control. He
further announced that the North American nation
had given its disinterested protection in order that
the independence of the Philippines should be
gained. (Taylor's Report, p. 19.)
On June 18, 1898, Aguinaldo, as such dictator,
issued an organic decree providing for the election
of municipal officers. (Ib., Ip. 20-22.)
This decree provided that as soon as the territory of the archipelago, or any portion thereof,
had passed from the possession of the Spanish
forces the people in the towns who were most
conspicuous for their intelligence, social position,
and upright conduct were to meet and elect a
town government.   The heads of the towns in
every province were to elect a head for the province and three counselors. The provincial council, composed of these four officials, with the
presidente of the capital of the province, were to
see to the execution, in that province, of the decrees of the central government, and to offer advice and suggestion to the central government.
This provincial council was to select representatives for the revolutionary congress, which was to
be charged with submitting suggestions to the central government upon interior and exterior affairs,
and was to be heard by the government upon serious
matters which admitted of delay and discussion.
Before any person elected to office was permitted
to discharge its functions his selection was to be




113
approved by the central government. The military commanders, except in time of war, were to
have no jurisdiction over the civil authorities.
They could, however, demand such supplies as
they might need, and these could not be refused.
The government was to appoint commissioners to
carry these regulations into effect.
On June 20, 18)8, Aguinraldo, as (ictator, issued
another organic decrlee l roviding regullations for
the administration of the government of provilces
and munlicipalities. (Ib., pp. 22-28.)
This decree pr l:ovidled that the head of the town
was to organize a force of police as large as the
resources of the to\wn permitted. The commissioner of police was to commnand this force. He
was to have the rank of lieutenant in the Army.
This force was to be undler the command of the
head of the town and of the province. The military commanlders \were authorized to use the police
in case of necessity. All men over 18 could be
called upon to serve in this force.
The head of the town w-as to act as a j(udge and
make the preliminary investigation in case of crime
or suit between persons under his jurisdiction, and
take testimony in such cases. The evidence was to
be transmitted to the provincial council, which was
to appoint an attorney to examine it and those presumed to be guilty. The papers in the case were
to be referred to the provincial council, which was
to call the accused before it, hear the defense, and
pronounce sentence. This part of the trial was to




114
be ill public. The Spanish penal code, when not
opposed to the decrees of the Government, was
to remain in force until the complete triumph of
the revolution. Courts-martial were to have juris -
diction over the members of the militia of the revo -
lution, police called upon for service by the military
commandlers of the provinces, and also persons
committing such offenses as the government might
designate in the future for trial by courts-martial.
Civil causes were to be adjudicated first by the
municipal councils and then by the provincial
councils on appeal. These cases coulld be taken
up on appeal by tribunals of competent jurisdiction, when, after the proclamation of the republic,
a system of acministering justice was completely
organized. The Spanish civil code was to remain
provisionally in force.
As soon as the popular organization was established, according to the decree of June 18, the head
of the town was to take possession of all property
belonging to the town and also that left by the
Spaniards and was to proceed to administer it for
the benefit of all. Local taxes established by
the Spanish Government were to be continued in
force. Money collected as fines was to be turned
into the treasury of the town. This decree provided also for levy and collection of taxes. The
central government was to have the right of imposing special taxes when it saw fit, the amount
to be determined by the government after hearing




115
the representatives of the province in the matter,
if there were representatives of the province. The
secretary of the treasury was charged with collecting and accounting for said sums. Estimates
of receipts and expenses of each town were to be
drawn up and submitted through the provincial
government to the central government for its ap -
proval. The towns were to be allowed to retain
in their treasuries only an amount sufficient to
cover their expenses as estimated; all excess was
to be turned over to the provincial treasury. The
provincial governments were to draw up immediately an estimate of receipts and expenditures.
These were to be submitted for approval to the
central government. All amounts received in excess of estimated expenses were to be turned over
to the central treasury. A return of all real property, with the names of owners of the same and
the amount produced by the same, was to be drawn
up in each town.
On June 23, 1898, Aguinaldo, styling himself
"president of the revolutionary government of the
Philippines and general in chief of its army,"
issued a proclamation declaring the existence of
the revolutionary government. (Ib., pp. 29-34.)
This decree provided as follows: The dictatorial
government was in future to be entitled the revolutionary government. Its duty was to struggle
for the independence of the Philippines in order
to establish a true republic. The dictator was in




116
future to be called the president of the revolutionary government. There were to be four secretaries of the government-one of foreign affairs,
commerce, and marine; one of war and public
works; one of police and interior order, justice,
education, and hygiene; one of the treasury, agriculture, and manufactures. The government could
increase the number if necessary. The secretaries
were to assist the president in the dispatch of
business coming under their departments.
The revolutionary congress was to be composed
of representatives from the provinces of the Philippine Archipelago, elected as provided by the decree of June 18. In case a province was not able
to elect representatives, the government would
appoint them. The congress was to discuss and
advise, to approve treaties and loans, examine and
approve the accounts of the secretary of the treasury. In case important matters admitted of delay,
the congress would be heard concerning them, but
if they did not admit of delay, the president of
the government was to act at once. Projects of
law could be presented by any representative and
by the secretaries of the government. A permanent committee of congress presided over by the
vice-president was to be chosen by that body.
This was to serve as a court of appeal in criminal
cases and as a court of final jurisdiction in cases
arising between secretaries of the government and
provincial officials. The acts of congress were not
to go into effect until the president of the gov



117


ernment ordered their execution. He was also to
have the right of veto.
In short, the presi(dent of the revolutionary government had all the power of the Spanish governorgeneral, unhampered by any orders from Spain.
The scheme proposed the eventual formation of
a republic, but it is dloultful whlether the people
who drew it up knew what the word meant. What
was actually provided for was a strongll  and highly
centralized military dictatorship, ill which, under
the form of election, provision was made for filling
all offices by men devoted to the group which had
usurped the functions of government.
This form of government w-as carried( into effect
as rapidly as territory was won from the Spaniards.
It was a well-devised plan to secure complete
control for the central groups about Aguinaldo.
His commissioners, by a pretended election, in
which the electors were picked men (usually the
members of the local Katapunan), established
municipal governments devoted to the cause of
the revolution. These were to choose provincial
officials and members of the congress. But all
elections were subject to Aguinaldo's approval,
and every province was under the command of a
military representative of Aguinaldo, who could
call upon the civil authorities at any time for such
supplies as he deemed fit. All real powers were
vested in the central group, and the central group
was composed of Emilio Aguinaldo and his public
and private advisers.




118
Pursuant to the plan outlined in the decree of
June 23, 1898, a cabinet of four secretaries was
appointed and a revolutionary congress selected.
The members of this congress were in part
selected by the provincial governments and in
part by the central government and assembled at
Malolos, which was then the seat of the insurgent
government.
As the Spanish garrisons fell into the hands
of Aguinaldo's forces, his commissioners held
the elections for municipal and provincial officials prescribed in his decree of June 18. In
every case the commissioner was appointed by
Aguinaldo, usually from the military commanders
in the province where the election was to be held.
The commissioner chose the electors, suggested
the persons to be elected, presided at the election,
and forwarded a record of the proceedings to the
central government. The selection had to be approved by the dictator, or president, before the
successful candidate could assume the duties of
his office. The people were not consulted. They
were not in the habit of being consulted, and
probably saw no necessity therefor.
By December, 1898, municipal governments devoted, or supposed to be devoted, to the cause of
the revolution had been established throughout
the island of Luzon.
As soon as the municipalities had been organized
under adherence to the revolution, an insurgent




119


government for the provinces was organized. On
August 13, 1898, the heads of the municipal governments in Bataan Province, Luzon, met at Cavite
Viejo with Tomas Tirona, a commissioner of the
central government, and selected the p)rovincial
officials for Bataan Province.  (Ib., p. 35.)
On August 9, 1898, a meeting was held at Bacoor, at which were elected the officials for the
insurgent provincial government of Pampanga
Province. This meeting was presided over by
Aguinaldo's secretary of the interior.
On December 22, 1898, the heads of municipal
governments of 41 towns of the province of Ambos Camarines met at Malolos in a meeting
presided over by Aguinaldo's secretary of the
interior and elected provincial officials for that
province. The election of these officials was formally approved by Aguinaldo. The records of
provincial elections in the other provinces have
not been found, but insurgent provincial governments existed there and probably were chosen
under similar conditions.
The government thus constituted met opposition in Pangasinan and Tarlac provinces which
had to be suppressed by armed force. The provinces of Ilocos and Cagayan were taken possession of by an armed insurgent expedition which
sailed from Manila Bay in the summer of 1898.
Aguinaldo in a circular letter addressed to the
foreign consuls in Manila on August 6, 1898, urg



120
ing the recognition of his force then in rebellion
against Spain, stated:
The government of the revolution actually
rules in the provinces of Cavite, Batangas,
Mindoro, Tayabas, Laguna, Morong, Bulacan, Bataan, Pampanga, Infanta, and besieges the capital, Manila. The most perfect order and tranquillity reign in these
provinces, governed by authorities elected
by the inhabitants in conformity with the
organic decrees dated June 18 and 23 last.
Moreover, the revolution has about 9,000
prisoners of war, who are treated humanely
and according to the rules of civilized warfare. We can muster more than 30,000
men, organized as a regular army.
On August 7 he wrote that there were agents of
the revolutionary government in Japan and England and France, and one was about to start for
the United States. In a decree dated Bacoor,
August 10, 1898, Aguinaldo specified the powers
and functions of the Hongkong junta, which was
empowered to represent his government abroad,
dispose of certain sums in its possession for the
purchase of arms, and to act as a center of intrigue
in Europe and the United States. These agents
reported to the government of Aguinaldo through
the Hongkong jun ta.
On January 4, 1899, Major-General Otis, military governor in the Philippines, issued a proclamation in which he quoted instructions from the
President of the United States, which showed that




121
the United States intended to extend its occupancy
over the Philippine Archipelago (ante, p. 99).
Aguinaldo replied at once by proclamation, denying the authority of the United States to carry out
the terms of the p)roclamiation by General Otis,
and conclu(ling as follows (ib., p. 583)
Thus it is that my g-overnment is ready to
open hostilities if the American troops attempt to take forcible possession of the Visayan Islands. I denclounce these acts before
the world, in order that the conscience of
mankind may pronounce its infallible verdict as to who are the true oppressors of
nations and the tormentors of human kind.
Upon their heads be all the blood which may
be shed.
These proclamations were posted during the
night of January 6, 1899, on the walls and doors
of Manila, and remained posted near the proclamation of the military governor until removed by
the soldiers of the provost guard.
On January 21, 1899, Aguinaldo, as the head of
the dictatorial government, approved a constitution
for the insurgent revolutionary government, formu -
lated by the insurgent assembly at Malolos. (See
Report of Phil. Corn. for 1900, vol. 1, p. 189 et
seq.)
Respecting the adoption of the constitution,
Captain Taylor in his report says (p. 15):
On January 21, 1899, the constitution of
the so -called republic was approved by Agui -
naldo, but there is nothing to show that it




122


was enforced. To the time of its final disintegration the government was conducted
in accordance with the fundamental decrees
of June 18, 1898, as affected by subsequent
decrees of Aguinaldo.
Captain Taylor further says (p. 14):
After the adoption of the constitution the
more important decrees of the president
began with some such form as "Upon the
recommendation of the secretary of the
interior, concurred in by my council, I hereby
decree, etc.," and the decrees so issued
were countersigned by the secretary within
whose province the matter came, or by the
secretary of the council. But this change
in form of issuing decrees is the only change
which I have been able to discover was made
in the methods of government by the adoption of the constitution. The Filipino conception of a republic was apparently the
Spanish government of the Philippines, with
a native at the head who was to exercise,
under the title of president, all the powers
of a governor-general and captain-general,
unhampered by any possibility of an appeal
to Spain.
By January, 1899, the island of Luzon, excepting the city of Manila, was in the hands of the
insurgent government, and the great island of
Panay (wherein Iloilo is situated) had recognized
that government as entitled to its allegiance. An
armed expedition of insurgents was on its way to
overturn the government which had been formed




123
by the Visayans and called "The Federal State
of the Visayas," and substitute therefor the
"Politico-Military Government of Panay," with
one of the insurgent generals at its head. Except
in Negros and part of Mindanao, the Sulu Archipelago, Manila and Cavite, the decrees of Aguinaldo were obeyed, and although this obedience
may not have been implicit, yet these decrees
were held as expressing the will of the only government which exercise(d dominion. The men
who brought them came with arms, the only firearms in the islalnds except among the Moros, and
coming from Luzon, the seat of Spanish power,
they were accepted. An artful campaign of l)ropaganda, supp)lorted by a system of terrorism, was
carried on, and whatever may have been the methods by which that supremacy was obtained,, an
examination of these records shows that at that
time, except in the territory named, the government of Aguinaldo d(ominated the archipelago.
On February 5, 1899, the (lay following the attack on Manila by the insurgent forces, Aguinaldo
issued a declaration of war upon the United States,
which, after reciting his reasons for such declaration, concludes as follows (see p. 55, Taylor's Report):
Summoned by this unexpected provocation, urged by the duties imposed upon me
by honor and patriotism and for the defense
of the nation intrusted to me, calling on
God as a witness of my good faith and the




124


uprightness of my intentions, I order and
command:
1. Peace and friendly relations between
the Philippine forces and the American
forces of occnupation are broken, and the
latter will be treated as enemies, with the
limits prescribed by tie laws of war.
2. American soldiers who may be captured
by the Philippine forces will be treated as
prisoners of war.
3. This proclamation shall be communlicated to the accredited consuls of Manila
and to congress, in order that it may accord
the suspension of the constitutional guaranties and the resulting declaration of war.
Among the captured documents in the possession of the War Department is one of the books
constituting the records of the office of the secretary of the interior of the insurgent government.
This volume contains the decrees of the president
and the orders and letters of the secretary of the
interior for the period from July 16, 1898, to October 2, 1899, and shows the character and extent
of the control exercised by the insurgent government over the municipal and provincial subdivisions of that government. An epitome of such of
said decrees as relate to this subject may be found
on pages 37 to 51, Taylor's Report.
On July 4, 1898, Aguinaldo as "president of the
revolutionary government of the Philippines and
general in chief of the army," promulgated a decree establishing an official gazette for the publica



125


tion of all decrees, orders, proclamations, laws,
etc., ordained by the insurgent government. As
long as conditions permitted the orders of the
insurgent government were promulgated by being
printed in this official publication. (See pp. 51
and 52, Taylor's Report.)
Among these captured documents are the books
showing the taxes levied andl c ollected by the insurgent government for the period from May 31,
1898, to September 10, 1899. These show a total
cash collection for that lelriod of 2,586,733.48
pesos. This amount is credited to the provinces
and islands of Albay, Abra, Batanes Islands, Bataan, Batangas, Babuyllles Islands, Benguet, Bulacan, Camarines, Cagayan, Cavite, Cebu, Ilocos
Norte, Ilocos Sur, Lepanto, LagunIa, Leyte Island,
Isabela, Inflanta, Masbate Island, Marinduque,
Morong, Mindanao Island, Mindoro Island, Manila,
Nueva Ecija, Nueva Viscaya, Neros Island, Panay
Island, Panpanga, Pangasinan, Romblon Island,
Sorsogon, Samar Island, Tayabas, Tarlac, Union,
Zambales.
The amounts reported as collected in some of
the provinces are small, so small as to show that
Mindanao and Negros, for example, did not submit to the insurgent government, but the remainder of the Christian portions of the archipelago
was under the dominion of the insurgent government, which appointed officials and laid and collected taxes. (See p. 56, Taylor's Report.)
The taxes Fabove referred to were levied and




126


collected pursuant to the decree of the insurgent
central government dated February 19, 1899, by
which the president puts in force a scheme submitted to him  by his secretary of the treasury.
This is an elaborate estimate of receipts and expenses for the year, and was based upon the
Spanish budget for the Philippines. The letter
submitting the project and the decree show the
methods of making collections and of maintaining
a system of accountability, and other captured
documents, show that this decree was constantly
referred to and the allotments of funds were as far
as possible made in accordance with its provisions.
(See p. 56, Taylor's Report.)
Another source of revenue of the insurgent government was a national loan, authorized by a
decree of the president. The total amount authorized was 20,000,000 pesos. Bonds for at least
500,000 pesos were printed, divided into two series:
A, of 25,000 bonds of 100 pesos each; and B, of
100,000 of 25 pesos each. This loan was to be
subscribed for by all persons of means, and the
authority of the government was used to compel
subscriptions, by which means large sums were collected. There were large losses before the amounts
thus collected reached the central government;
but on October 19, 1899, a total of 233,397.50
pesos had been received by that government from
installments paid by subscribers up to that date.
This sum was collected throughout Luzon by the
agents of the insurgent government duly author



127
ized for that purpose. Receipts were given and
sums accounted for on forms issued by the insurgent government. (Taylor's report, p. 18.)
The captured records also show that postage
stamps were printed by the insurgent government
and used on correspondence where postal routes
were maintained; that revenue stamps were required upon documents certifying to the transfer
of cattle and real estate; that telegrams were required to be stamped with revenue stamps of the
insurgent government, and that stamped paper
for official and legal documents similar to that required by the Spanish Government was adopted.
There are among the captured records now in the
War Department stamped envelopes which have
passed through the insurgent post, and documents
of various kinds drawn up on stamped paper issued
by the insurgent government, sufficient in number
to establish the fact that a considerable sum must
have been derived from this source. From May
31, 1898, to February 15, 1899, 102,940.60 pesos
were received from postage and telegraph stamps.
(Taylor's report, p. 18.)
The insurgent government also undertook to
restore the Spanish system of forestry control, and
appointed officials for a forestry department, who
issued licenses to cut timber.
The officials appointed by the insurgent central
government were recognized as representatives of
an existing government, not only by the people of
8812-03   9




128
the islands outside of Manila, but by foreign merchants and others domiciled in the city of Manila
whose business or interest requireld dealilgs outside of the city. This recognition is shown by
applications made by managers and authorized
agents of such mercantile establishments for permission to trade in territory subject to the insurgent government, and by the payment of customs
duties at ports held by the insurgents, which duties
were paid not as a forced contribution of war, but
as a duly laid customs duty acquiesced in by the
payer, pursuant to the decree of the insurgent
government dated February 19, 1899.  (See pp. 56
to 87, Taylor's Report.)
Among the mercantile concerns so contributing
to the maintenance of the insurgent government
and to the continuel existence of the insurrection
was that of the claimant herein, Warner, Barnes
& Co. (See pp. 61 to 65, Taylor's Report; also
Taylor's delpositions, 6-19.)
The claimant was so persistent in continuing its
treasonable trade, not only with the inhabitants of
insurgent territory, but also with the officials of
the insurgent government, that its agents were
excluded from Albay Province by the military
authorities of the United States conducting military operations in that province.  (See pp. 87 to
101, Taylor's Report.)
If the United States had seen fit to accept and
act upon the theory advanced by the claimant in




129
this action, that the insurrection in the Philippines
was not sufficient to create the condition of war,
and therefore all persons dealing with the insurgents had violated the laws against treason, and put
the agents of the claimant upon trial for having
participated in a treasonable uprising, it is more
than likely that their counsel wonll entertain and
advance a very different view than is presented in
this case respecting the jurisdiction of the courts,
and the effect lupoll the operations of the civil law
and the authority of the Federal Government of
the United States brought about by the Philippine
insurrection.
In the case at bar it is material to consider the
dealings had by the claimant with the insurgent
government in the Philippine Islands, for that
action on their part estops them from now contending against the existence of such government.
It is further urged by the United States that such
action by the claimant disqualifies it from maintaining this action or securing the relief prayed
for in its petition.
The existence but not the ind(lepedel(ce of the insurgent government was recognized by the United
States military authorities. The Schurman Commission, upon its arrival in the Philippine Islands,
took immediate steps to open communication with
the leaders of the insurrection for the laudable
purpose of putting an end to hostilities and securing the recognition of the sovereignty of the United




130
States. That Commission in the latter part of
April, 1899, received and conferred with one Colonel Arguelles, from the insurgent ranks. Several
interviews were had with this emissary at his first
visit, and subsequently he returned in company
with one Captain Zialcita, who reported that they
came from Aguinaldo, and desired further conference. They bore letters to the Commission dated
April 29, 1899, headed "The Philippine people,
through its government, etc.," and in almost every
paragraph mention is made of that government.
(See Vol. 1, Report of the P. I. Com. for 1900,
Exhibit 3, p. 187.)
At this conference the Commission explained
the plan of government for the Philippine Islands
contemplated by the United States. At the conclusion of the conference, and on May 4, the Commission communicated by cable the substance of
the conference to the Secretary of State at Washington, and on May 5 were advised by cable that
"You are authorized to propose that under the
military power of the President, pending action of
Congress, the government of the Philippine Islands
shall consist, etc."  (See vol. 1, Report of Phil.
Corn. for 1900, p. 9.)
A third delegation was received by the Schurman Commission, and in respect thereof the Commission reported as follows:
As a result of the interviews with Argue -
lles, and of his reports to the insurgents of




131


what had taken place, there was sent to Manila in the latter part of May another body
of emissaries from Aguinaldo. They were
Sefor Gracio Gonzaga, Seftor Barretto, General Gregorio del Pilar, and Captain Zialcita. * * *'
The emissaries mentioned arrived on the
19th day of May, 1899. They had with the
Commission two long interviews of several
hours each. They said they had come with
larger powers than Arguelles had had in
order to confer with the Commission and to
further study and discuss the possibilities of
peace, the form of the ultimate government
which might in future be proposed, and the
attitude of the United States with respect to
reforms and other matters fundamentally
concerning them. I * * The proposed
plan of government authorized by the President was announced and laid before them,
and each of its features separately discussed.
(See vol. 1, Report of Phil. Corn. for 1900,
p. 9.)
A stenographic report of this conference is found
in volume 2, Report of the Philippine Commission
for 1900, page 116 et seq., from which it appeared
that the delegation at all times insisted upon the
fact that it represented a government.
There was no impropriety in recognizing the
insurgent government as existing. Such is the
course ordinarily pursued under conditions with
which the United States Government was called
upon to deal-and such course is never presumed




132


as authorizing neutrals to deal with the insurgents as an independent power. Lieber's Instructions for the Government of Armies of the United
States in the Field (sec. 10) lays down the rule as
follows:
4. When humanity induces the adoption
of the rules of regular war toward rebels,
whether the adoption is partial or entire, it
does in no way whatever imply a partial or
complete acknowledgment of their government, if they have set up one, or of them
as an independent or sovereign power. Neutrals have no right to make the adoption of
the rules of war by the assailed government
toward rebels the ground of their own acknowledgment of the revolted people as an
independent power.
5. Treating captured rebels as prisoners
of war, exchanging them, concluding of
cartels, capitulations, or other warlike agreements with them; addressing officers of a
rebel army by the rank they may have in
the same; accepting flags of truce; or, on
the other hand, proclaiming martial law in
their territory, or levying war taxes or forced
loans, or doing any other act sanctioned or
demanded by the law and usages of public
war between sovereign belligerents, neither
proves nor establishes an acknowledgment
of the rebellious people or of the government
which they may have erected as a public or
sovereign power. Nor does the adoption of
the rules of war toward rebels imply an engagement with them extending beyond the




133
limits of these rules. It is victory in the
field that ends the strife and settles the
future relations between the contending
parties.
6. Treating in the field the rebellions enemy
according to the law and usages of war has
never prevented the legitimate government
from trying the leaders of the rebellion or
chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.   (See also
fHick/,ian v. Jones, 9 Wall., 197, 200; TWlilliiams v. Brluffy, 96 U. S., 176, 191.)
The claimant contends that the United States
ceased to possess the authority derivable from the
laws of war, because it pursued the course described by the Secretary of War, as follows:
Wherever the permanelnt occupation of
our troops has extended in the Philippine
Islands, civil law has been immediately put
in force. The courts have been organized
and the most learned and competent native
lawyers have been appointed to preside over
them.   (Annual Rep. Sec. of War, 1899,
p. 14.)
The laws of modern warfare require that in
territory subject to military occupancy the military
authorities maintaining such occupancy shall provide for the administration of the affairs of civil
government in that territory.  (Brussels Project
of an International Declaration concerning Laws
and Customs of War, sec. 2; Lieber's Instructions




134
for the Government of Armies of the United States
in the Field, sec. 1, cl. 1-7.)
A military government established pursuant to
military occupancy acts in a dual capacity-military and civil. On its military side it deals with
territory and inhabitants with reference to the
relations they individually and collectively sustain
to the contending parties. Military government,
on its civil side, deals with the inhabitants of territory subject to its jurisdiction, with reference to
the relations which they sustain to each other and
to the community in which they live. The relations which the inhabitants sustain to each other
and the community do not cease under military
occupancy, and the laws relating thereto continue
in force and effect unless abrogated by the new
government. Lieber's Instructions for the Government of Armies of the United States in the
Field, says:
All civil and penal law shall continue to
take its usual course in the enemies' places
and territories under martial law (military
government), unless interrupted or stopped
by order of the occupying military power;
but all the functions of the hostile government-legislative, executive, or administrative-whether of a general, provincial, or
local character, cease under martial law
(military government), or continue only
with the sanction or, if deemed necessary,
the participation of the occupier or invader.




135
Noncombatants, in territory subject to military
occupancy, are not amenable to the articles of war
and the rules adopted for the discipline of the
Army. The laws and usages of war do not permit
either belligerent to arbitrarily incorporate the
noncombatants into his military establishment and
thereby subject them to the rigid rules and procedures by which the discipline of that establishment is maintained.
Although the authority to judicially determine
questions arising under these laws passes to the
commander of the occupying military force, to be
exercised by him if he shall so determine, he is at
liberty to permit such exercise by others whom he
shall designate; and usually the commander designates the persons occupying the judicial positions
at the time the military occupancy is established.
Such persons possess a knowledge of the laws they
are called upon to interpret, and the controversies
they adjudicate are between their friends and
neighbors and are confined to matters of local
interest and effect.
The courts so instituted and the agencies of civil
government so installed are agencies of the military power-instrumentalities for the exercise of
that power-and derive their authority and jurisdiction from that source. So long as the instrumentalities by which civil government is administered continue to derive their authority from
military power, and continue to be utilized as
instruments for promoting the purposes of war,


- ' —  --- —` —I-~--
--; --- —----.-.. __.._L_I: --- —-.




136
they can not be considered as evidences that the
condition of war has ceased or the laws of war
become ineffective.
Pomeroy says:
Military government is the authority by
which a commander governs a conquered dis -
trict when the local institutions have been
overthrown and the local rulers displaced,
and before Congress has had an opportunity
to act under its power to dispose of captures
or to govern territories. This authority in fact
belongs to the President, and it assumes the
war to be still raging and the final status of
the conquered province to be determined, so
that the apparent exercise of civil functions
is re(lly (a necasure of hostility. (Pomeroy's
Constitutional Law, Bennett's 3d ed., par.
712, p. 593.)
On November 27, 1901, more than thirty (lays
after the latest payment set forth in claimant's
petition, the Secretary of War, reporting to the
President respecting the conditions prevailing in
the Philippine Islands, after referring to the passage of the Spooner amendment, says (see Annual
Report, Secretary of War, 1901, p. 54):
These provisions were immediately communicated to the Commission by cable, with
the following direction:
"Until further orders Government will
continue under existing instructions and
orders."
The conditions at that time did not permit, nor, great as has been the improvement,




137
do they now permit, the abandonment of
military government throughout the archipelago. In the more unsettled portions of
the islands the restrictive and punitive force
of purely civil administration would as yet
be quite inadequate to the maintenance of
order, even if the creation of a civil-service
personnel were already accomplished. The
work of securing the great number of competent and faithful civil agents necessary
for the administration of government is nec -
essarily slow, even in thoroughly 1pacified
territory. It requires that the appointing
power should become familiar with great
numbers of the natives, and should learn
both who are competent and who are to be
trusted-a necessarily gradual process.
The policy contemplated in the instruc -
tions of April 7, and followed by the War
Department, has been to steadily lpress forward, as rapidly as it could be done safely
and thoroughly, the gradual substitution of
government through civil agents for government through military agents, so that the
administration of the military officer shall
be continually narrowed and that of the
civil officer continually.enlarged, until the
time comes when the Army can, without
imperiling the peace and order of the country, be relegated to the same relation toward
government which it occupies in the United
States. In this way we have avoided the
premature abandonment of any power necessary to enforce the authority of the United
States, and at the same time have held open


--




138


to the people of every community the opportunity to escape from the stringency of military rule by uniting with us in effective
measures to bring about peaceful conditions
in the territory which they inhabit.
Halleck's International Law, vol. 2, p. 432,
says:
The right of one belligerent to occupy
and govern the territory of the enemy while
in its military possession is one of the incidents of war, and flows directly from the
right to conquer.  We therefore do not
look to the constitution or political institutions of the conqueror for authority to
establish a government for the territory of
the enemy in his possession during its military occupation, nor for the rules by which
the powers of such government are regulated and limited. Such authority and such
rules are derived directly from the laws of
war, as established by the usage of the
world, and confirmed by the writings of
publicists and the decisions of courts-in
fine, from the law of nations. * * *
The government established over an enemy's territory during its military occupation may exercise all the powers given by
the laws of war to the conqueror over the
conquered, and is subject to all the restrictions which that code imposes. It is of
little consequence whether such government
be called a military or a civil government;
its character is the same, and the source of
its authority the same. In either case it is




139


a government imposed by the laws of war,
and so far as it concerns the inhabitants of
such territory or the rest of the world those
laws alone determine the legality or illegality of its acts.
The paramount purpose to which were devoted
all American governmental agencies in the Philippines was to induce the inhabitants to abandon
the insurgent cause. The insurrection was promoted largely through a want of understanding
by the inhabitants, of the policies and purposes of
the United States respecting them and the archipelago, and the results to follow acceptance of
American sovereignty. The Administration realized that the only way of conferring an understanding of these matters upon the inhabitants
was to demonstrate by example. To this end the
formation of civil government was kept abreast
with the success of our military forces. These
organizations were just as much a means by which
the United States prosecuted the war in the Philippines as were the batteries and regiments utilized
in that endeavor. Each of these was an agency of
war; each was an instrumentality for the exercise
of military power devoted to the purpose of "conquering a peace." To what extent these local civil
governments aided in inducing the Filipinos to
abandon the insurrection can not be ascertained;
that their influence was potent no one will deny;
but the condition in the islands was no more
changed from that of war to that of peace, upon






140
the instant of their installation, than was such
change effected upon the instant the troops disembarked from the transports. The termination of
a war is the culmination and not the initiation of
efforts to successfully prosecute it.
The foregoing review of the facts creating the
conditions in the Philippine Islands with which the
United States was called 1upon to deal, although
unduly extended, it is feared, is by 1no means
complete. The facts justifying the exercise of belligerent rights are so numerous that the preparation of this argument became a matter of selection.
For further information on the general questions
involved, the attention of the court is directed to
the following documents filed in this case: Part 2,
Annual Report of the Major-General Commanding
United States Army for 1899; Report of MajorGeneral Otis, U. S. Army, commanding Division
of the Philippines and military governor, for 1900;
Report of Major-General MacArthur, U. S. Volunteers, commanding Division of the Philippines
and military governor, for 1901 (see Part 2, Annual
Report of Lieut. Gen. Com. U. S. A., 1901); Report of the Philippine Commission for 1900, vols. 1
and 2.
It is probably unnecessary to bring these documents to the attention of the court, for the court
will take judicial notice of the character, duration,
and extent of the Philippine insurrection. "Judicial noti!ce is taken of any matters of public history
affecting the whole people and public matters




141


affecting the government of the nation."  (Bouvier's Law Die. and authorities there cited.)
In De Celis v. Ulited States (13 C. Cls. R., 117,
126) this court say:
The court will take judicial notice of the
leading and 1controllilg evenlts in the history of the country anll  of the official relations of the prinlcipal actors therein to the
Government; all(l, il elucidati(on thereof,
also of less imlportaut transactions of general an(d public interest immediately connected therewith, when they have passed
into commonly received authenltic history.
The olperatiolls of the military andl naval
officers of the Unlited States in the conquest
of California land immnediately subsequent
thereto, anlld the acti(o) of the executive and
legislative branches of the (Governlment
thereon, so fa1r as they w-ere of a public
nature and indicate the true relation of
Colonel Fremont, who performed a leading
and conspiculous )art thereil, to the National
Government, alnd his authority or lack of
authority to bind the United States by contracts entered into by him ill the official
capacity which he claimed as "governor of
California," must be regarded now, after
the lapse of more than thirty years, as such
historical facts of public aln(l general notoriety as may be here judicially taken notice
of by the court, especially as neither party
relies upon any other facts by which his
authority can be determined.
In Metde v. The UMnited States (9 Wall.,
691), an appeal from this court, the judges






142


of the Supreme Court took judicial notice of
historical and national political facts bearing
upon the merits of that case of much less
general and public interest, notoriety, and
comment than the material facts to which
we shall have occasion to refer in this opin -
ion, and acted upon their own views thereof, independently of the specific findings
which were here made and sent up to them.
Heath v. Wallace (138 U. S., 578).
Jones v. United States (137 U. S., 202).
Underhill v. Hertradez (168 U. S., 250).
Broown v. Piper (91 U. S., 37).
The United States contend that by reason
of the matters and facts to which attention has
been directed, it is incumbent upon the courts of
the United States to hold that the insurrection
in the Philippine Islands created the condition of
war, which condition attached to the entire archipelago and justified the United States in exercising
belligerent as well as sovereign rights therein,
including the military occupancy of the ports and
territory of the islands.
V.
The effect of war upon the right to trade with the
enemy; the effect of nilitary occupancy upon the right
of neutrals to trade with the territory occupied; the exercise of belligerent rights by the United States in conducting the war of the insurrection in the Philippine
Islands; the auhlority of the President as Commander
in Chief of the Army and Navy to regulate commercial
intercourse with domestic territory of the United States
subject to military occupancy by our national forces and
to impose conditions on trade therewith; the right of the




143
millitary governmntcn of the Phailippine Islands% (during
the period said government wvas enigaged in promoting
the mnilitary measures of its sovereign in actual war) to
secure revenues by imposing customis diulies and taxes on
goods b~roulght into the territory sulblect to it* jurisdiction; tile right of tihe President as, Comumnander in Chief
during the linie tihe condition ot' war prevailed and
by virtue of authority derived fromi tihe laws of -war
to exercise, as to thfe Phililppine Islands, tihe national.
powers of legislationu.
The United States contend that the exactions
of which the claimaiit colfphainls are to be Justified:1. As coiiditioiis imfl1osed l(,(.)mhl)El( l ato
ity upon the privilege of trading- with tlhe inhabitaiits of territorv snl)ject to military occupancy by
the military forces of the United States, under the
laws of war.
2. As milita-ry (contriibltions exactedl for the
purpose of providling funds for (lefraying- the exipense of the administr'ation of the affairs of civil
government by military authority in territory sub -
ject to military occupnevaic by the militatry forces
of the United States, undler the laws of war.
8". As customs (luties or taxes- imposed by an
exercise of national powers of legislation possessed
by the United States, accomplished by the action
of the President as Commander in Chief, taken
pursuant to authority derived from the laws of war
and of nations, at a time and as to territory wherein
the United States was engaged in the prosecution
of a war against its sovereignty, which said exercise of powers by the President was assented to
8812-03   ~10






144
and approved by Congress by the enactment known
as the Spooner amendment, and thereafter specific -
ally, definitely, in whole and in part, "approved,
ratified, and confirmed" by the act of Congress of
July 1, 1902, entitled "An act temporarily to provide for the administration of the affairs of civil
government in the Philippine Islands."
In support of the foregoing propositions the
United States submit the following:
In time of war trade between territories and
people known to the laws of war as enemies is
unlawful.
In Matthews v. McStea (91 U. S., 9) the court
say:
It must also be conceded, as a general rule,
to be one of the immediate consequences of
a declaration of war, and the effect of a state
of war, even when not declared, that all
commercial intercourse and dealing be -
tween the subjects or adherents of the contending powers is unlawful, and is interdicted. The reasons for this rule are
obvious. They are that, in a state of war,
all the members of each belligerent are respectively enemies of all the members of the
other belligerent, and were commercial intercourse allowed, it would tend to strengthen
the enemy and afford facilities for conveying
intelligence, and even for traitorous correspondence. Hence it has become an established doctrine that war puts an end to
all commercial dealing between the citizens
or subjects of the nations or powers at war,




145
and "places every individual of the respective governments, as well as the governments themselves, in a state of hostility;"
and it dissolves commercial partnerships existing between the subjects or citizens of the
two contending parties prior to the war, for
their continued existence would involve
community of interest and mutual dealing
between enemies.
Still further, it i. undeniable that civil
war brings with it all the consequences in
this regard which attend upon and follow a
state of foreign war. Certainly this is so
when civil war is sectional. Equally with
foreign war it renders commercial intercourse
unlawful between the contending parties,
and it dissolves commercial partnerships.
The rule laid down by Chancellor Kent is as
follows:
The law has put the sting of disal)ility
into every kind of voluntary communication
and contact with an enemy which is made
without the special permission of the government. There is wisdom and policy, latriotism and safety, in this prillciple, and
every relaxation of it tends to corrupt the
allegiance of the subject and to prolong the
calamities of war.  (16 Johnson, 459, 460;
United States v. Grossmayer, 9 Wall., 72.)
It matters not whether property be bought
or sold, or merely transported and shipped,
the contamination of forfeiture is consummated the moment it becomes the object of
illegal intercourse.  (The Rapid, 8 Cranch,




146


155; The Sally, 8 Cranch, 382; Wharton's
Conflict of Laws, sec. 497.)
The Instructions for the Government of Armies
of the United States in the Field provide as follows
(sec. 5, par. 1):
All intercourse between territories occupied by belligerent armliies, whether by traffic, by letter, by travel, or in any other
way, ceases. This is the general rule, to
be observed without special proclamation.
Exceptions to this rule, whether by safe
conduct, or permission to trade on a small
or large scale, or by exchanging mails, or
by travel from one territory into the other,
can take place only according to agreement
approved by the Government or by the
highest military authority.   Contraventions to this rule are highly punishable.
Birkhimer, in his work on Military Government
and Martial Law, says (p. 204):
One of the most important incidents of
military government is the regulation of
trade with subjugated districts. The occupying state has an unquestioned right to
regulate commercial intercourse with the
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 the exclusive possession of
the territory his title is valid. Therefore
the citizens of no other nation have a right to




147


enter it without the permission of the dominant power. Much less can they claim an
unrestricted right to trade there.  (See also
Bluntschli, I, sec. 8; Manning, p. 167;
Flening v. Page, 9 How., 603, 615.)
Birkhimer further says (p. 230):
It is not the practice of military commanders to deal gently with those who,
while accepting the benefits of the government which in amelioration of the strict
rules of war has been established over
them, seeks to impair its power or adhere
to the enemy by giving him aid and comfort. In this respect there is no difference
in the situation of persons inhabiting territory militarily occupied. Whether subjects of the vanquished state or of a neutral
power, their obligations are equally strong
to do nothing to prejudice the interests of
the government which the conqueror establishes over them, and as to all persons who
did not reside or were not found in the
territory when it was occupied, whatever
may be their nationality, the conqueror
alone determines upon what terms, if at all,
they shall be permitted to either enter the
occupied district or to hold communication
or business relations with the inhabitants
thereof. Either to admit them or to permit
intercourse is a relaxation of the strict rules
of war.   (See also Hanger v. Abbott, 6
Wall., 535.).The right to regulate trade with territory subject to its jurisdiction is a well established right




148
of sovereignty.  The right of the sovereign to
raise revenue by imposing taxes or customs duties
on imports is universally conceded and exercised.
Where the conditions of peace prevail that right
is to be exercised, under our sovereignty, by Congress or by and with the assent of Congress.
Where the conditions of war prevail that right
may be exercised by Congress, or by the President as Commander in Chief, or by the concurrent
action of both. The authority of the President
to exercise this right is derived from the laws of
war and attaches to his capacity as Commander in
Chief of the Army and Navy.
In discussing the right to regulate intercourse
with territory subject to military occupancy by the
forces of the United States, Halleck's International Law, volume 2, chapter 33, section 9, page
445, says:
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




149
war. 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 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 G(overnment 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 ill
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
recognized by the laws of war and the usage
of nations. It is immaterial whether these
revenues arise 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.




150
See, also, 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.
The authority of the President as Commanderin-Chief to exercise the war powers of the nation,
without the assent of Congress previously obtained,
in such manner as to entirely prohibit commercial
intercourse with the domestic territory of the
United States wherein prevails the condition of
war produced by an insurrection of the inhabitants,
received the sanction of the judicial branch of this
Government in many cases brought to test the
legality of the blockade instituted by President
Lincoln at the outbreak of the civil war. It does
not seem possible that the President lacks authority
to impose lesser limitations or restrictions upon
commercial intercourse with domestic territory
similarly conditioned.
The right of the Federal authorities to exercise
authority derived from the laws of war in regulating or restricting trade with domestic territory
wherein the condition of war prevails as a result
of insurrection is well established.  (United States
v. Grosscmayer, 9 Wall., 72; Hanger v. Abbott, 6
Wall., 532; McKee v. United States, 8 Wall., 163;
Mitchell v. United States, 21 Wall., 350; Jecker v.
Montgomery, 18 How., 110; The Prize Cases, 2
Black., 635; Hamilton v. Dilli2, 21 Wall., 73; The
Reform, 3 Wall., 617; The Sea Lion, 5 Wall., 630;
The Ouachita Cotton, 6 Wall., 521; Coppel v. Hall,




151
7 Wall., 542; Mrs. Alexander's Cotton, 2 Wall.,
404.)
From  the decisions cited two are selected as
conclusive of the law of the case at bar. They are
The Prize Cases, 2 Black., 635, and Hamrilton v.
Dillin, 21 Wall., 73.
The Prize Cases involved the right of the President at the outbreak of the civil war, and without
the consent of Congress, to blockade the ports of
the insurgent territory. In that case the court
say (pp. 665-674):
There are certain propositions of law
which must necessarily affect the ultimate
decision of these cases, and many others,
which it will be proper to discuss and
decide before we notice the special facts
peculiar to each. They are:
First. Had the President a right to institute a blockade of ports in possession of
persons in armed rebellion against the Government on the principles of international
law as known and acknowledged among
civilized states?
Second. Was the property of persons
domiciled or residing within those States a
proper subject of capture on the sea as
"enemies'" property?
Let us inquire whether, at the time this
blockade was instituted, a state of war
existed which would justify a resort to these
means of subduing the hostile force.
War has been well defined to be "that
state in which a nation prosecutes its right
by force."


__I




152


The parties belligerent in a public war are
independent nations. But it is not necessary to constitute war that both parties
should be acknowledged as independent
nations or sovereign States. A war may
exist where one of the belligerents claims
sovereign rights as against the other.
Insurrection against a government may
or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the
Government. A civil war is never solemnly
declared; it becomes such by its accidentsthe number, power, and organization of the
persons who originate and carry it on.
When the party in rebellion occupy and
hold in a hostile manner a certain portion of
territory, have declared their independence,
have cast off their allegiance, have organized
armies, have commenced hostilities against
their former sovereign, the world acknowledges them as belligerents and the contest a
war. They claim to be in arms to establish
their liberty and independence, in order to
become a sovereign State, while the sovereign party treats them as insurgents and
rebels, who owe allegiance and who should
be punished with death for their treason.
The laws of war, as established among
nations, have their foundation in reason,
and all tend to mitigate the cruelties and
misery produced by the scourge of war.
Hence, the parties to a civil war usually
concede to each other belligerent rights.
They exchange prisoners and adopt the




153


other courtesies and rules common to public or national wars.
"A civil war," says Vattel, "breaks the
bands of society and government, or at
least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies
and acknowledge no common judge. Those
two parties, therefore, must necessarily
be considered as constituting, at least for a
time, two separate bodies-two distinct
societies. Having no common superior to
judge between them, they stand in precisely the same predicament as two nations
who engage in a contest and have recourse to
arms.
"This being the case, it is very evident
that the common laws of war-those maxims of humanity, moderation, and honorought to be observed by both parties in
every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make
reprisals, etc.; the war will become cruel,
horrible, and every day more destructive to
the nation."
As a civil war is never publicly proclaimed, eo nomnine, against insurgents, its
actual existence is a fact in our domestic
history which the court is bound to notice
and to know.
The true test of its existence, as found in
the writing of the sages of the common law,
may be thus summarily stated: " When the
regular course of justice is interrupted by




154


revolt, rebellion, or insurrection, so that the
courts of justice can not be kept open, civil
wvar exists, and hostilities may be prosecuted
on the same footing as if those opposing the
Government were foreign enemies invading
the land."
By the Constitution, Congress alone has
the power to declare a national or foreign
war. It can not declare war against a State,
or any number of States, by virtue of any
clause in the Constitution. The Constitution confers on the President the whole
executive power. He is bound to take care
that the laws be faithfully executed. He is
Commander in Chief of the Army and Navy
of the United States, and of the militia of
the several States when called into the
actual service of the United States. He
has no power to initiate or declare a war
either against a foreign nation or a domestic
State. But by the acts of Congress of February 28, 1795, and 3d of March, 1807, he
is authorized to call out the militia and use
the military and naval forces of the United
States in case of invasion by foreign nations,
and to suppress insurrection against the
government of a State or of the United
States.
If a war be made by invasion of a foreign
nation, the President is not only authorized
but bound to resist force by force. He does
not initiate the war, but is bound to accept
the challenge without waiting for any special
legislative authority.  And whether the
hostile party be a foreign invader, or States




155


organized in rebellion, it is none the less a
war, although the declaration of it be " unilateral."  Lord Stowell (1 Dodson, 247)
observes: "It is not the less a war on that
account, for war may exist without a declaration on either side. It is so laid down by
the best writers on the law of nations. A
declaration of war by one country only is
not a mere challenge to be accepted or refused at pleasure by the other."
The battles of Palo Alto and Resaca de la
Palma had been fought before the passage
of the act of Congress of May 13, 1846, which
recognized " a st(tte of cwar as existing by the
act of the Republic of Mexico."  This act not
only provided for the future prosecution of
the war, but was itself a vindication and
ratification of the act of the President in
accepting the challenge without a previous
formal declaratiol of war by Congress.
This greatest of civil wars was not gradually developed by plopular commotion, tumultuous assemblies, or local unorganized
insurrections.  However long may have
been its previous conception, it nevertheless
sprung forth suddenly from the parent brain
a Minerva in the full panoply of war. The
President was bound to meet it in the shape
it presented itself, without waiting for Congress to baptize it with a name, and no name
given to it by him or them could change the
fact.
It is not the less a civil war, with belligerent parties in hostile array, because it may
be called an "insurrection" by one side and


-




1o56


the insurgents be considered as rebels or
traitors. It is not necessary that the independence of the revolted province or state
be acknowledged in order to constitute it a
party belligerent in a war according to the
law of nations.   * *
The law of nations is also called the law
of nature. It is founded on the common
consent as well as the common sense of the
world. It contains no such anomalous doctrine as that which this court are now
for the first time desired to pronounce, to
wit, that insurgents who have risen in rebellion against their sovereign, expelled her
courts, established a revolutionary government, organized armies, and commenced
hostilities are not enemies because they are
traitors; and a war levied on the Government by traitors, in order to dismember and
destroy it, is not a war because it is an
' insurrection.'
Whether the President, in fulfilling his
duties as Commander in Chief in suppressing an insurrection, has met with such
armed hostile resistance, and a civil war of
such alarming proportions as will compel
him to accord to them the character of belligerents, is a question to be decided by him,
and this court must be governed by the decisions and acts of the political department
of the Government to which this power was
intrusted. "He must determine what degree of force the crisis demands."  The
proclamation of blockade is itself official
and conclusive evidence to the court that a




157
state of war existed which demanded and
authorized a recourse to such a measure,
under the circumstances peculiar to the case.
The correspondence of Lord Lyons with
the Secretary of State admits the fact and
concludes the question.
If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every
act passed at the extraordinary session of
the legislature of 1861, which was wholly
employed in enacting laws to enable the
Government to prosecute the war with vigor
and efficiency. And finally, in 1861, we
find Congress "ex majore (ewtlela " and in
anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and
orders of the President, etc., as if they had
been iss.ed (ald done,uncer the previous express ( tthority and direction of the Congress
of the United States.
Without admitting that such an act was
necessary under the circumstances, it is
plain that if the President had in any manner assumed powers which it was necessary
should have the authority or sanction of
Congress, that on the well-known principle
of law, ' omntis ratihabitio retrotrahitur et
mandato equiparatur," this ratification has
operated to perfectly cure the defect. In
the case of Brown v. United States (8 Cr.,
131, 132, 133), Mr. Justice Story treats of
this subject, and cites numerous authorities
to which we may refer to prove this posi



158


tion, and concludes: "I am perfectly satisfied that no subject can commence hostilities
or capture property of an enemy when the
sovereign has prohibited it. But suppose
he did, I would ask if the sovereign may not
ratify his proceedings, and thus by a retroactive operation give validity to them?"
Although Mr. Justice Story dissented
from the majority of the court on the whole
case, the doctrine stated by him on this
point is correct and fully substantiated by
authority.
The objection made to this act of ratification, that it is ex post facto, and therefore
unconstitutional and void, might possibly
have some weight on the trial of an indictment in a criminal court. But precedents
from that source can not be received as
authoritative in a tribunal administering
public and international law.
On this first question, therefore, we are of
the opinion that the President had a right,
jure beli, to institute a blockade of ports in
possession of the States in rebellion, which
neutrals are bound to regard.
II. We come now to the consideration of
the second question. What is included in
the term "enemies' property?"
Is the property of all persons residing
within the territory of the States now in
rebellion, captured on the high seas, to be
treated as "enemies' property" whether the
owner be in arms against the Government
or not?
The right of one belligerent not only to




1159
coerce the other by direct force, but also to
cripple his resources by the seizure or
destruction of his property, is a necessary
result of a state of war. Money and wealth,
the products of agriculture and commerce,
are said to be the sinews of war, and as
necessary in its conduct as numbers and
physical force. Hence it is that the laws
of war recognize the right of a belligerellt to
cut these sinews of the power of the enemy
by capturing his prol}erty on the high seas.
The appellants contend that the term
"enemy" is properly appllicablle to those
only who are subjects or citizens of a foreign State at war with our own. They
quote from the pages of the common law,
which say: 'That lersonls who wage war
against the King mnay be of two kinds,
subjects or citizens. The former are nlot
proper enemies, but rebels and traitors; the
latter are those that come prolperly unlder
the name of enemies."
They insist, moreover, that the President
himself, in his plroclamatioll, admits that
great numbers of the persons residing
within the territories in possession of the
insurgent government are loyal in their
feelings, and forced by compulsion and the
violence of the rebellious and revolutionary
party and its " (e facto government" to
submit to their laws and assist in their
scheme of revolution; that the acts of the
usurping government can not legally sever
the bond of their allegiance; they have,
therefore, a co-relative right to claim the
8812-03   11




160


protection of the government for their persons and property, and to be treated as
loyal citizens till legally convicted of having renounced their allegiance and made
war against the government by treasonably
resisting its laws.
They contend, also, that insurrection is
the act of individuals and not of a government or sovereignty; that the individuals
engaged are subjects of law; that confiscation'of their property can be effected only
under a municipal law; that by the law of
the land such confiscation can not take place
without the conviction of the owner of some
offense, and, finally, that the secession ordinances are nullities and ineffectual to release
any citizen from his allegiance to the National Government, and consequently that
the Constitution and laws of the United
States are still operative over persons in
all the States for punishment as well as
protection.
This argument rests on the assumption of
two propositions, each of which is without
foundation on the established law of nations.
It assumes that where a civil war exists, the
party belligerent claiming to be a sovereign
can not, for some unknown reason, exercise
the rights of belligerents, although the revolutionary party may. Being sovereign, he
can exercise only sovereign rights over the
other party. The insurgent may be killed
on the battlefield or by the executioner; his
property on land may be confiscated under
the municipal law; but the commerce on




161
the ocean, which supplies the rebels with
means to support the war, can not be made
the subject of capture under the laws of war,
because it is "unconstitutional!"  Now, it
is a proposition never doubted that the belligerent party who claims to be sovereign
may exercise both belligerent and sovereign
rights.  (See 4 Cr., 272.)  Treating the
other party as a belligerent and using only
the milder modes of coercion which the law
of nations has introduced to mitigate the
rigors of war can not be made a subject of
complaint by the party to whom it is accorded as a grace or granted as a necessity.
We have shown that a civil war such as
that now waged between the Northern and
Southern States is properly conducted according to the humane regulations of public
law as regards capture on the ocean.
Under the very peculiar constitution of
this government, although the citizens owe
supreme allegiance to the Federal Government, they owe also a qualified allegiance to
the State in which they are domiciled.
Their persons and property are subject to
its laws.
Hence, in organizing this rebellion, they
have acted as States, claiming to be sovereign over all persons and property within
their respective limits, and asserting a right
to absolve their citizens from their allegiance to the Federal Government. Several
of these States have combined to form a new
confederacy, claiming to be acknowledged
by the world as a sovereign state. Their






162


right to do so is now being decided by wager
of battle. The ports and territory of each
of these States are held in hostility to the
General Government. It is no loose, unorganized insurrection, having no defined
boundary or possession-it has a boundary
marked by lines of bayonets, and which can
be crossed only by force-south of this line
is enemies' territory, because it is claimed
and held in possession by an organized,
hostile, and belligerent power.
All persons residing within this territory,
whose property may be used to increase the
revenues of the hostile power, are, in this
contest, liable to be treated as enemies,
though not foreigners. They have cast off
their allegiance and made war on their government, and are none the less enemies
because they are traitors.
But in defining the meaning of the term
"enemies' property," we will be led into
error if we refer to Fleta and Lord Coke
for their definition of the word "enemy."
It is a technical phrase peculiar to prize
courts, and depends upon principles of
public policy as distinguished from  the
common law.
Whether property be liable to capture as
"enemies' property" does not in any manner depend on the personal allegiance of
the owner. "It is the illegal traffic that
stamps it as 'enemies' property.' It is of
no consequence whether it belongs to an
ally or a citizen. (8 Cr., 384.) The owner,
pro hac vice, is an enemy."  (3 Wash. C. C.
R., 183.)




163
The produce of the soil of the hostile
territory, as well as other property engaged
in the commerce of the hostile power, as
the source of its wealth and strength, are
always regarded as legitimate prize, without
regard to the domicile of the owner, and
much more so if he reside and trade within
their territory.
The case of H1amilton v. Dilihi (21 Wall., 73)
arose as follows:
During the progress of the civil war President
Lincoln, pursuant to the provisions of the act of
Congress (sec. 5, 12 Stat. L., 257) providing that
trade with the rebellious territory should be carried on "'only in pursuance of rules and regulations prescribed by the Secretary of the Treasury,"
adopted alnd enforced a rule permitting the purchase of cotton in any insurrectionary district and
to transport the same to a loyal State upon the
payment to the (Government of 4 cents for each
pounlld purchase(d.
From August, 18638, to July, 1864, Hamilton secured permits to purchase and ship to loyal States
large quantities of cotton, amounting to 7,000,000
pounds, and paid thereon at the rate of 4 cents a
pound. The cotton was purchased at Nashville,
Tenn., during the time that city and district were
within the lines of the Federal forces, and at a
time when the United States exercised full administrative and legislative authority over said town
and the State of Tennessee. It will be recalled




164
that at the period indicated Andrew Johnson was
acting as governor of Tennessee, under appointment by President Lincoln. Hamilton brought
suit against Dillin, surveyor of the port at Nashville, Tenn., to recover the amount paid on said
permits, contending that the President had no
authority to require its payment, since Congress
alone had the right to lay taxes, duties, imposts,
and excises, and that the rule enforced against him
became null and void when Nashville passed into
the possession of the Union forces, and became
subject to the sovereignty of the United States.
The United States Supreme Court denied his right
to recovery. The court held (syllabi, 21 Wall.,
73, 74):
The Government of the United States
clearly has power to permit limited commercial intercourse with an enemy in time
of war, and to impose such conditions
thereon as it sees fit. This power is incident to the power to declare war and to
carry it on to a successful termination.
It seems that the President alone, who is
constitutionally invested with the entire
charge of hostile operations, may exercise
this power, but whether so or not there is
no doubt that with the concurrent authority
of the Congress he may exercise it according
to his discretion.
The charge of 4 cents per pound required
by these regulations was not a tax, nor was
it imposed in the exercise of the taxing
power, but in the exercise of the war power


-




165
of the Government.   It was a condition
which the Government and the President,
endowed with the powers thereof, in the
exercise of supreme and absolute control
over the subject, had a perfect right to
impose.
The condition thus imposed was entirely
in the option of any person to accept or not.
If any did accept it and engage in the trade,
it was a voluntary act, and all payments
made in consequence were voluntary pay -
ments, and on that ground alone (if there
were no other) could not be recovered back.
Nashville, though within the national
military lines in 1868 and 1864, was nevertheless hostile territory within the prohi -
bition of commercial intercourse, being
within the terms of the President's proclamation on that subject, which proclamation
in that regard was not inconsistent with the
act of July 13, 1861, properly construed.
The civil war affected the status of the
entire territory of the States declared to be
in insurrection except as modified by declar -
atory acts of Congress or proclamation of
the President.
In the body of the opinion the court say:
There can be no question that the condition requiring the payment of 4 cents per
pound for a permit to purchase cotton in
and transport it from the insurrectionary
States during the late civil war was competent to the war power of the United States
Government -to impose. The war was a






1 66


a public one. The Government in prosecuting it had at least all the rights which any
belligerent power has when prosecuting a
public war. That war was itself a suspension of commercial intercourse between the
opposing sections of the country. No cotton or other merchandise could be lawfully
purchased in the insurrectionary States and
transported to the loyal States without the
consent of the Government. If such a
course of dealing were permitted at all, it
would necessarily be upon such conditions
as the Governmelt chose to prescribe. The
war power vested in the Government implied all this without any specific mention
of it in the Constitution.
By the Constitution of the United States
the power to declare war is confided to Congress. The executive power and the command of the military and naval forces is
vested in the President. Whether in the
absence of Congressional action the power
of permitting partial intercourse with a
public enemy may or may not be exercised
by the President alone, who is constitution -
ally invested with the entire charge of
hostile operations, it is not now necessary
to decide, although it would seem that little
doubt could be raised on the subject.
The Government chose to impose this
condition. It supposed it had a right to do
so. No one was bound to accept it. No one
was compelled to engage in the trade. Not






167


the least compulsion was exercised. The
plaintiffs endeavor to put the case as if
they were obliged to pay this exaction to
save their property. This is not a true view
of it. It is admitted that the property was
purchased under the license. If so, it was
also pulrchased in view of the regulations to
which the license referred. The regulations
themselves show that the permit to purchase
and the permit to exl)ort were correlative to
each other; that no one was permitted to
purchase who did not enter into bond to pay
all fees required by the regulations, amongst
which the charge of 4 cents per pound (lon
cotton was expressly inserted. In short, the
permit to purlchase and exlport constituted
substantially one lpermit, allnd that was
granted only on the colnditioln of paying the
prescribe(l fees, as before stated.:
The case does not come within any class of
cases on which the plaintiffs rely to take it
out of the rule as to volultary painyments.
In our judgment, therefore, the defense in
this case might have rested on this ground
alone.
The position that Nashville, being within
the national lines, was not hostile territory
in 1863 and 186;4, and therefore not within
the prohibition of commercial intercourse
contained in the act of 1861, is not tenable.
The State of Tennessee was named in the
President's proclamation as one of the States
in insurrection, and, as we have seen, the
exceptions made in his first proclamation in




168


favor of maintaining commercial intercourse
with parts of such States remaining loyal or
occupied by the forces of the United States
were abrogated by the proclamation of
April 2, 1863, except as to West Virginia
and certain specified ports.
There was nothing in this action of the
President repugnant to or not in conformity with the act of 1861. "This revocation," as remarked by the court in the case of
The Venice (2 Wall., 278), "merely brought
all parts of the insurgent States under the
special licensing power of the President,
conferred by the act of July 13, 1861."
The act gave the President power, where a
State or part of a State remained irreclaimable, to declare that the inhabitants of such
State, or any section or part thereof where
such insurrection existed, were in a state of
insurrection. This power clearly gave the
President a discretion to declare an entire
State, where the insurrection was persisted
in, or only a hostile district therein, in a
state of insurrection. Finding the attempt
to discriminate between the different parts
of a State (except in peculiar cases) impracticable, he abandoned the attempt and
declared the entire State in a state of
insurrection. He clearly had the authority so to do, more especially as the insurrection was supported by State organizations and the actual State authorities.
Thenceforth the war became a well-defined
territorial war, and was in great measure
coniducted as such. The further provision




169
of the act, that all commercial intercourse
with the insurrectionary districts should
cease " so long as such condition of hostility
shall continue," could not be construed as
allowing such intercourse to be:esumed by
individuals at will as fast and as far as our
armies succeeded in occupying insurgent
territory.  The "condition of hostility"
remained impressed upon the insurrectionary districts until it was authoritatively removed by the proclamation of the President
at the close of the war.
But it is unnecessary to pursue this subject. We have frequently held that the
civil war affected the status of the entire
territory of the States declared to be in insurrection, except as modified by declaratory
acts of Congress or proclamations of the
President; and nothing but the apparent
earnestness with which the point has been
urged would have led to further discussion
on the point.
*       *      e:t      e
It is hardly necessary, under the view we
have taken of the character of the regulations in question, and of the charge or bonus
objected to by the plaintiffs, to discuss the
question of the constitutionality of the act of
July 13, 1861, regarded as authorizing such
regulations. As before stated, the power of
the Government to impose such conditions
upon commercial intercourse with an enemy
in time of war as it sees fit is undoubted.
It is a power which every other Government
in the world claims and exercises, and which._..




170
belongs to the Government of the United
States as incident to the power to declare
war and to carry it on to a successful termination. We regard the regulations in question as nothing more than the exercise of
this power. It does not belong to the same
category as the power to levy and collect
taxes, duties, and excises. It belongs to the
war powers of the Government, just as
much so as the power to levy military contributions, or to perform any other belligerent act.
In Ketch uni v. Buekley (99 U. S., 188, 190) the
court say:
It is now settled law in this court that
during the late civil war "the same general
form of government, the same general law
for the administration of justice and the
protection of private rights, which had existed in the States prior to the rebellion,
remained during its continuance a(nd afterwards.
Notwithstanding the fact of this jurisdiction,
the court say in 1Ne'? Orleans v. SteCamship Co. (20
Wall., 393-394):
Although the city of New Orleans was
conquered and taken possession of in a civil
war waged on the part of the United States
to put down an insurrection and restore the
supremacy of. the National Government in
the Confederate States, that Government
had the same power and rights in territory
held by conquest as if the territory had




171
belonged to a foreign country and had been
subjugated il a foreign war. In such cases
the conquering power has a right to' displace
the preexisting authority, and to assume
to such extent as it may deem proper the
exercise by itself of all the powers and
functions of govermnent. It may appoint
all the necessary officers and clothe them
with designated powers, larger or smaller,
according to its pleasure. It may prescribe
the revenues to be paid, alld apply them to
its own use or otherwise. It may (do anything necessary to strengthen itself and
weaken the enemy. 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. These principles
have the sanction of all publicists who have
considered the subject.
They have been repeatedly recognlized
and applied by this court. In the case last
cited the President had, by proclamation,
established in New Orleans a provisional
court for the State of Louisiana and defined its jurisdiction. This court held the
proclamation a rightful exercise of the
power of the Executive, the court valid, and
its decrees binding upon the )parties brought
before it. In such cases the laws of war
take the place of the Constitution and laws
of the United States as applied in times of
peace.
The case of Lamar v. Brozune et al., 92 U. S.,
187, arose as follows: Colonel Kimball, being in






172
the military service of the United States, in Georgia, was ordered by his immediate commander,
General Washburn, to take and retain possession
of the cotton in the warehouses at Thomasville,
Ga. H6 arrived at that place on June 19, 1865,
and immediately, or within a few days, stationed
a guard at the several warehouses in the town in
which the cotton was stored. At that time there
were no armed hostilities at Thomasville, and he
was the first to take possession of the town. Subsequently the cotton was turned over to Browne,
as agent of the Treasury Department of the United
States, and dealt with as captured and abandoned
property. Lamar brought suit against Browne et
al. to recover the value of 1,800 bales of cotton
alleged to have been converted by them. In denying the right of the plaintiff to recover, the Supreme
Court says (193):
The testimony of Kimball shows conclusively that the cotton in question was seized
by the military forces of the United States
in obedience to the orders of a commanding
general. This is not seriously disputed;
but it is contended that, when seized, it was
not in "hostile possession," and that, in
consequence, the seizure, though made by
the military, did not amount to a capture.
It is true, as claimed, that when the seizure
was made active hostilities in Georgia had
entirely ceased. The last organized army
of the rebellion east of the Mississippi had
surrendered almost two months before, and




173


a very large portion of the national forces
had been disbanded. The blockade had
been raised, and trade and commercial intercourse in that part of the insurgent territory
again authorized; but still, in fact, a state
of war existed. That continued until April
2, 1866 (The Protector, 12 Wall., 702), the
territory within the limits of the State of
Georgia being occupied by the national
forces and actually governed by means of
that occupation.
From time to time during the war the
military lines of the enemy were forced back,
and as they receded the hostile territory was
entered upon by the forces of the United
States. It was thus taken out of hostile
possession. Whenever, therefore, during
this military occupation, enemy property
found on the recovered territory was seized
by the military forces, in obedience to orders,
it was taken from hostile possession within
the meaning of that term as used in respect
to captures. Property taken on a field of
battle is not usually collected until after
resistance has ceased, but it is none the less
on that account captured property. The
larger the field the longer the time necessary
to make the collection. By the battle the
enemy has been compelled to let go his possession, and the conqueror may proceed with
the collection of all hostile property thus
brought within his reach so long as he holds
the field. At the time this transaction
occurred the military lines of the enemy east
of the Mississippi had been broken up and






174
its armies in that locality disbanded. Thus
the whole of this insurgent territory was
uncovered, and this part of the field of the
battles of the entire war taken from the hos -
tile possession of the enemy. It was at
once occupied by the national forces, and
they proceeded immediately to secure the
results of the prolonged and stubborn conflict.
It is quite true that the United States,
during the late war, occupie( a peculiar
position. They were, to borrow the language of one of the counsel for the plaintiff,
both "belligerent alnd constitutional sovereign;" but, for the enforclemelt of their
constitutional rights against armed insurrection, they had all the powers of the most
favored belligerent. They conld act both as
belligerent and sovereign.  As belligerent,
they might enforce their authority by capture; and, as sovereign, they might recall
their revolted subjects to allegiance by par(lon and restoration to all rights, civil as
well as political.  All this they might do
when, where, and as they chose. It was a
matter entirely within their sovereign discretion.
These decisions are so apposite to the facts of
this case and conclusive of the questions of law
involved as to preclude discussion. They put an
end to the doctrine that the Federal Government
of the United States, although at liberty in foreign
war to exercise all powers conferred by the laws




175
of war, in domestic war lay helpless, manicled by
the Constitution, at the feet of its assailants.
The cities of Manila and Iloilo, when subjected
to military occupancy and government by the
forces of the United States as all incidellt of actual
war against the United States maintailed by the
inhabitants of the islanlds in which these cities are
situated, had no greater right to exemption from
the laws of war than w\ere possessed by New
Orleans, Nashville, andl Thomasville at the time
those cities were subjected to like military occupancy. If the United States may lawfullly exercise
belligerent rights in territory bound and benefited
by the Constitution, when the condition of war
prevails thereiil, it certainly is autlhorized in time
of war to exercise said rights in territory not
bound and benefited by the Constitution.
The situation at San Juan, Porto Rico, on and
after the time the treaty of peace wars consumumated,
was entirely different from that existing at Manila
and Iloilo. The invasionl and conquest of Porto
Rico met witlh practica lly no resistance, and the
transfer of sovereignty from Spain to the United
States was enthusiastically accepted by the inhabitants. Actual warfare had ceased, if, indeed,
it had ever existed in that island, the consummation of the treaty terminated the technical
existence of war, and the United States was in
unobstructed possession of the island by virtue of
complete and confirmed title. The occupancy of
8812-03- 12






176


the island thereupon ceased to be an incident of
war and the military government ceased to derive
its authority from the laws of war. The United
States occupied the island by virtue of sovereign
right instead of belligerent right and the military
government exercised authority by virtue of being
a de facto government continued by the presumed
consent of the inhabitants.
This question arose in the United States upon
the exchange of ratifications of the treaty of peace
with Mexico in 1848. Respecting the continued
existence of the military governments established
by the United States in New Mexico and upper
California, President Polk said:
The only government which remained
was that established by the military authority during the war. Regarding this to be a
de facto government, and that by the presumed consent of the inhabitants it might
be continued temporarily, they were advised to conform and submit to it for the
short intervening period before Congress
would again assemble and could legislate
upon the subject. (Message to Cong., Dec.
5, 1848; see Messages and Papers of the
Presidents, vol. 4, p. 638.)
With reference to the same matter, Mr. James
Buchanan, at that time Secretary of State, said:
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 Con



177
gress shall provide for them a Territorial
government. The great law of necessity
justifies this conclusion.  The consent of
the pebple 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. (See
Ex. Documents, 2d sess. 30th Cong., Doc.
No. 1, p. 48.)
The continuance of the military government
over California after peace was declared was considered by the Supreme Court of the United States
in Cross v. Harrison (16 How., 164), and therein
the court say (pp. 193, 194):
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
withrawing 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.






178


Porto Rico had ceased to be hostile and the purposes of military operations therein had been accomplished. Therefore in that island the United
States was no longer a belligerent, and it followed
that the existing government therein no longer
exercised its powers by virtue of belligerent right.
Regarding the provisional government maintained in California and New Mexico after the
treaty of peace with Mexico, President Polk said:
Upon the exchange of ratifications of the
treaty of peace with Mexico, the temporary
governments which had been established
over New Mexico and California   *
by virtue of the rights of war ceased to
derive any obligatory force from that source
of authority.  (Message to Congress, December 5, 1848; see Ex. Doc. No. 1, p. 12,
Thirtieth Congress, second session.)
James Buchanan, then the Secretary of State,
said:
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. (Ibid., p. 48.)
In Manila arid Iloilo and throughout the territory adjacent thereto and the Philippine Archipelago the conditions of war prevailed, producing
the necessity for military occupancy and military
government maintained and administered by
authority derived from the laws and usages of war




179
and justifying the exercise of belligerent rights by
the United States. The exactions complained of
by claimant were collected at Manila and Iloilo between the 13th of December, 1898, and the 25th of
October, 1901. During that entire period these
cities were in a state of siege, while on and after
the time when the treaty of peace with Spain was
consummated the city of San Juan, P. R., was in a
condition of actual and absolute peace. To confine the power of the military authorities maintaining the occupancy of Manila and Iloilo within
the limits of the authority of the representatives
of the United States maintaining the peaceful
possession of Porto Rico, it is necessary to ignore
national necessities and abrogate the rights of
nations founded thereon.
VI.
The exaction of customIs dutlie and taxes by tile military government of the Phlilippine Islands justified as
being an exercise of autlhority conferred by tie legislative power of lie United States: Ratification by
Congress.
The collection of the customs duties by the military government of the Philippines, of which complaint is made, although amply justified as an
exercise of authority derived from the laws of
war, is also to be justified as being an exercise of
authority conferred by the legislative power of the
United States. This authority was conferred, in
the first instance, by the legislative act of the
President at a time when, as to the Philippine




180
Islands, the President was authorized to exercise
the national powers of legislation, and afterwards
by an exercise of the national powers of legislation
authorized by express enactment of Congress;
which exercises of legislative powers and all acts
performed pursuant to authority conferred thereby,
were subsequently ratified, approved, and con -
firmed by the Congress of the United States.
In support of this contention the attention of
the court is directed to the fact that under the
laws and usages of war the military occupation of
territory creates an obligation to provide for the
administration of the affairs of civil government
in the occupied territory. The Brussels project of
an international declaration concerning the laws
and customs of war recites:
The authority of the legal power being
suspended and having actually passed into
the hands of the occupier, he shall take
every step in his power to reestablish and
secure, as far as possible, public safety and
social order.
This obligation is binding upon the military authorities of the United States, and the resulting
duty may be discharged by them.   (Cross et al. v.
Harrison, 16 How., 164, 193; Leitensdorfer v. Webb,
20 How., 176, 177.)
Governments so created are intended to perform
two services: Promote the military operations of
the occupying army and preserve the safety of
society.  (Ex parte Milligan, 4-Wall., 127.)




181
For the accomplishment of these purposes, such
a government, to use the language of the United
States Supreme Courtmay do anything necessary to strengthen
itself and weaken the enemy. There is no
limit to the powers that may be exercised
in such cases save those which are found in
the laws and usages of war.:    i:: In
such cases the laws of war take the place of
the Constitution alind the laws of the United
States as applied in time of peace. (New
Orletans v. Ste(aminsh/i) Co., 20 Wall., 394.)
Under the laws an(l usages of war1, when territory becomes subject to military occu(pancy, all the
powers of the executive, legislative, and judicial
branches of government are to be exercised as
to that territory by the commander of the military forces maintaining the occul)ancy. Where
the military occll)pallcy is maintained by the military forces of the United States, the powers of the
several branches of government are to be exercised by the President in his capacity as Commander in Chief of the Army and Navy, or by
such persons or governmental instrumentalities as
he may designate.
The exercise of legislative power is unavoidable
when the military government deals adequately
with the new conditions incident to military occupancy, or attempts the work of reformation or
construction, or seeks to create conditions which
will enable the civil authorities to carry on the
government and maintain social peace and order.






182


Among the powers properly exercised by a military government is the right to secure revenues
for its own maintenance. President McKinley, in
his communication to the Secretary of War dated
July 13, 1898, written with reference to the government of civil affairs in Cuba under military
occupation, said:
One of the most important and most
practical problems with which it will be
necessary to deal is that of the treatment of
property and the collection and administration of the revenues.
While it is held to be the right of the conqueror to levy contributions upon the enemy
in their seaports, towns, or provinces which
may be in his military possession by conquest, and to apply the proceeds to defray
the expenses of the war, this right is to be
exercised within such limitations that it
may not savor of confiscation. As the result of military occupation the taxes and
duties payable by the inhabitants to the
former government becomes payable to the
military occupant, unless he sees fit to substitute for them other rates or modes of con -
tribution to the expenses of the government.
The moneys so collected are to be used for
the purpose of paying the expenses of government under the military occupation, such
as the salaries of the judges and the police
and for the payment of the expenses of the
army.   (See G. O., No. 101, A. G. 0.,
series 1898.)




183
In New Orleans v. Ste'tamship Co. (20 Wall., 394),
the court say:
The conquering power has a right to displace the preexisting  authority and to
assume to such an extent as it may deem
proper the exercise by itself of all the powers and functions of government. He may
appoint all the necessary officers and clothe
them  with designated powers, larger or
smaller, according to its pleasure. It may
prescribe the retvenes to be paid (ad a(pply)
them to its own uIse( or otherwvise.
The military government of the Philippines
adopted the plan of imposing custom duties on
imports into and certain exports from said islands.
The order so to (lo was issued on July 12, 1898, by
William McKinley as Commander in Chief of the
Army and Navy of the United States of America,
as follows:
EXECUTIVE MANSION, Jully 12, 1898.
By virtue of the authority vested in me
as Commander in Chief of the Army and
Navy of the United States of America, I do
hereby order and direct that, upon the
occupation and possession of any ports and
places in the Philippine Islands by the
forces of the United States, the following
tariff of duties and taxes, to be levied and
collected as a military contribution, and
regulations for the administration thereof,
shall take effect and be in force in the ports
and places so occupied:
Questions arising under said tariff regulations shall be decided by the general in






184
*command of the United States forces in
those islands.
Necessary and authorized expenses for
the administration of said tariff and regulations shall be paid from the collections
thereunder.
Accurate accounts of collections and expenditures shall be kept and rendered to the
Secretary of War.
WILLIAM McKINLE Y.
There can be no doubt of the authority of the
President, as Commander in Chief of the Army
and Navy, to enforce the provisions above quoted
at the time the order was issued, July 12, 1898.
(Dooley v. Unijted States, 182 U. S.; Cross v. Harrison,, 16 How., 182; Newl Orleans v. Steamship Co.,
20 Wall., 387; T7rirty Hogsheads of Sugar, 9 Cranch,
991; Flemiung v. Page, 9 How., 603; Am. Ins. Co.
v. Ctanter, 1 Pet., 511.)
The question herein presented is, When did the
authority of the President to enforce said order
cease?
When New Mexico was conquered by the United
States the executive authority of the United States
properly established a provisional government,
which ordained laws and instituted a judicial system; all of which continued in force after the
termination of the war, and until modified by the
direct legislation of Congress or by the Territorial
government established by authority of Congress.
In Leitensdorfer v. Webb (20 How., 178) the
Supreme Court of the United States say:




185


Accordingly we find that there was ordained by the provisional government a
judicial system, which created a superior or
appellate court, constituted of three judges;
and circuit courts, in which the laws were
to be administered by the judges of the
superior or appellate court, in the circuits to
which they should be respectively assigned.
By the same authority the jurisdiction of the
circuit courts to be held in the several
counties was declared to embrace, first, all
criminal cases that shall not be otherwise
provided by law; and second, exclusive
original jurisdiction in all civil cases which
shall not be cognizable before the prefects
and alcaldes. (Vide Laws of New Mexico,
Kearney's Code, p. 48.) Of the validity of
these ordinances of the lprovisionlal government there is made no question with respect
to the period during which the Territory
was held by the United States as occupying
conqueror, and it would seem to admit of
no doubt that during the period of their
valid existence and operation these ordinances must have displaced and superseded
every plrevious institution of the vanquished
or deposed   political power which was
incompatible with them. But it has been
contended that whatever may have been the
rights of the occupying conqueror as such,
these were all terminated by the termination of the belligerent attitude of the parties, and that with the close of the contest
every institution which had been overthrown








186


or suspended would be revived and reestablished. The fallacy of this pretension is exposed by the fact that the territory never
was relinquished by the conqueror, nor
restored to its original condition or allegiance, but was retained by the occupant until
possession was matured into absolute permanent dominion sovereignty; and this,
too, under the settled purpose of the United
States never to relinquish the possession
acquired by arms. `We con clade, therefore,
that the ordbinances and institutios s of the provisioInal govternment uwo1ld be revoked or modified by the United States aloe, either by
direct legisla(tion on the part of Congress or by
that of the Territorial govlernmesnt in the exercise of poteers delegated by Congr'ess.
The particular one of.the "ordinances and institutions of the provisional government" of the
Philippines now under consideration, to wit, the
order of July 12, 1898, has not been "revoked or
modified by the United States, either by direct
legislation on the part of Congress or by that of
the territorial government in the exercise of powers
delegated by Congress;" on the contrary, Congress
enacted that it "shall be and remain in full force
and effect" (act approved March 8, 1902, entitled
"An act temporarily to provide revenue for the
Philippine Islands, 32 Stats., 54"), and the action
of the President in adopting and enforcing its
provisions was expressly "approved, ratified, and
confirmed."  (Act approved    July 1, 1902, 32
Stats., 691.)




187


In l(tilmiltonl v. Dillin (21 Wall., 87-88) the
United States Supreme Court say:
In Cross v. Hatrrison (16 How., 190) it
was held that the President, as commander
in chief, had power to form a temporary
civil government for California as a conquered coultry, and to impose duties on
imports alnd tonnage for the support of the
government, and for aiding to sustain the
burdens of the war, which awere held Valid?ntil (Congr'ess saw(t fit to sqper'sede them; and
an action brought to recover back duties
Ipaid ullder such regulation was adjudged to
be inot mfaintaiablle.
In Doole! v. U)nlied( Sftates (182 U. S., p. 222)
Mr. Justice Brown, delivering the opinion of the
court, says:
Upon the occulpati-on of the country by
the military forces of the United States the
authority of the Spanish Government was
superseded, but the necessity for a revenue
did not cease. The government must be
carried on, and there was no one left to
administer its functions but the military
forces of the United States. Money is requisite for that purpose, and money could only
be raised by order of the military commander. The most natural method was by
the continuation of existing duties. In
adopting this method General Miles was
fully justified by the laws of war. The doetrine upon this subject is thus summed up
by Halleck in his work on International
Law (vol. 2, p. 444): "The right of one




I - ---


188


belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war and
flows directly from the right to conquer.
We, therefore, do not look to the constitution or political institutions of the conqueror
for authority to establish a government for
the territory of the enemy in his possession
during its military occupation, nor for the
rules by which the powers of such government are regulated and limited. Such
authority and such rules are derived directly
from the laws of war, as established by the
usage of the world and confirmed by the
writings of publicists and decisions of
courts-in fine, from  the law of nations.
* * * The municipal laws of a conquered territory, or the laws which regulate
private rights, continue in force during
military occupation, except so far as they
are suspended or changed by the acts of the
conqueror.   * *    He nevertheless has
all the powers of a de facto government, and
can at his pleasure either change the existing laws or make new ones."
In Newt Orleans v. Steamship Co. (20 Wall.,
387, 393), it was said, with respect to the
powers of the military government over the
city of New Orleans after its conquest, that
it had "the same power and rights in territory held by conquest as if the territory had
belonged to a foreign country and had been
subjugated in a foreign war. In such cases
the conquering power has the right to displace the preexisting authority and to as



189


sume to such an extent as it may deem
proper the exercise by itself of all the powers
and functions of government. It may appoint all the necessary officers and clothe
them  with designated powers, larger or
smaller, according to its pleasure. It may
prescribe the revenues to be paid and apply
them to its own use or otherwise. It may
do anything necessary to strengthen itself
and weaken the enemy. 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. These principles
have the sanction of all publicists who have
considered the subject."  (See also Thirty
Hogsheads of Sugar, 9 Cr., 991; Fleming v.
Page, 9 How., 603; American? Ins. (Co. v.
Ca2ter, 1 Pet., 511.)
But it is useless to multiply citations upon
this point, since the authority to exact similar duties was fully considered and affirmed
by this court in Cross v. Iarrisont (16 How.,
182). This case involved the validity of
duties exacted by the military commander
of California upon imports from  foreign
countries from  the date of the treaty of
peace, February 3, 1848, to November 13,
1849, when the collector of customs appointed by the President entered upon the
duties of his office. Prior to the treaty of
peace, and from August, 1847, duties had
been exacted by the military authorities,
the validity of which does not seem to have
been questioned (p. 189): "That war tariff,




~I  Y~ 1~l   -II-IMWi ----   ~~;~-~


190


however, was abandoned as soon as the military governor had received from Washington
information of the exchange and ratification
of the treaty with Mexico, and duties were
afterwards levied in conformity with such
as Congress had imposed upon foreign merchandise imported into other ports of the
United States, upper California having been
ceded by the treaty to the United States.
The duties were held to have been legally
exacted."  Speaking of the duties exacted
before the treaty of peace, Mr. Justice
Wayne observed (p. 190): "No one can
doubt that these orders of the President, and
the action of our army and navy commanders in California, in conformity with them,
was 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."  It was further
held that the right to collect these duties
continued from the date of the treaty up to
the time when official notice of its ratification and exchange was received in California. Owing to the fact that no telegraphic
communication existed at that time, the
news of the ratification of this treaty did
not reach California until August 7, 1848,
during which time the war tariff was continued.  The question does not arise in
this case, as the ratifications of the treaty
appear to have been known as soon as they
were exchanged.




191
The court further held in Cross v. Harrison that the right of the military commander to exact the duties prescribed by
the tariff laws of the United States continued until a collector of customs had
been appointed. Said the court: "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 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. * * * We think
it was continued over a ceded conquest
without any violation of the Constitution or
laws of the United States, and that, until
Congress legislated for it, the duties upon
foreign goods imported into San Francisco
were legally demanded and lawfully received
by Mr. Harrison, the collector of the port,
who received his appointment, according to
instructions from Washington, from Governor Mason."
In the insular cases (182 U. S.) the court judicially confirm the doctrine that the legislative
8812-03   13




192


branch of the Federal Government of the United
States had authority to impose customs duties on
articles brought from Porto Rico into the ports of
the States of the Union and on articles coming
into Porto Rico from other portions of the national
domain. Such being the law, it would seem to
follow that an order of legislative character, issued
by the President with reference to the ports of
Porto Rico, during the time when, as to said
ports, the President was authorized to exercise
the legislative authority of the National Government, would be of force equal to an enactment of
Congress, and under the authority of Leitensdorfer
v. Webb (20 How., 178) and Hamilton v. Dillin
(21 Wall., 87) "would be revoked or modified by
the United States alone, either by direct legislation on the part of Congress or by that of the
territorial government in the exercise of powers
delegated by Congress."
In De Lima v. Bidwell (182 U. S., 1) the court
held that the treaty of peace between Spain and
the United States being ratified, the customs officials of the ports of the States of the Union were
without authority to impose customs duties upon
articles entering said ports from Porto Rico prior
to the date of the enactment of the legislation
known as the Foraker Act.
In the Fourteen Diamond Rings case (183 U. S.,
176) a like rule was adopted in respect of articles
entering the port of San Francisco from the Philippine Islands.




193
The rule adopted in these cases in no way affects
or militates against the legality of the legislative
order of the President authorizing the military
government of the Philippine Islands to raise revenue by imposing customs duties on articles coming into the ports of the Philippine Islands from
the States of the Union or elsewhere, for the
decisions of the Supreme Court, above referred to,
relate exclusively to the ports of the United States,
which ports were not affected by the order of the
President.
In Dooley v. United States (182 U. S., 222), however, the court say (p. 234):
We have no doubt, however, that, from
the necessities of the case, the right to
administer the government of Porto Rico
continued in the military commander after
the ratification of the treaty, and until further action by Congress. (Cross v. Harrisonl,
above cited.) At the same time, while the
right to administer the government continued, the conclusion of the treaty of peace
and the cession of the island to the United
States were not without their significance.
By that act Porto Rico ceased to be a foreign
country, and the right to collect duties upon
imports from the island ceased. We think
the correlative right to exact duties upon
importations from New York to Porto Rico
also ceased.
Without questioning at all the original
validity of the order imposing duties upon




194


goods imported into Porto Rico from foreign
countries, we think the proper construction
of that order is, that it ceased to apply to
goods imported from the United States from
the moment that the United States ceased
to be a foreign country with respect to Porto
Rico, and that until Congress otherwise constitutionally directed such merchandise was
entitled to free entry.
In Dooley v. The United States, the court seems
to have ignored the fact that from the time the
military occupancy of Porto Rico was established
until the date of the conclusion of the treaty of
peace, the President, as to the territory of the
island, was authorized to exercise the national
powers of the United States, and what Congress
could do respecting the ports of Porto Rico, the
President could do, and the President's action being of legislative character and pursuant to lawful
authority would continue to be effective until modified or repealed by Congress.  (Leitensdorfer v.
Webb, 20 How., 178; Hamilton v. Dillin, 21 Wall.,
87.)
The Government calls the attention of the court
to the fact that the rule on which the Dooley case
turned does not apply to the case at bar, for the
reason that a portion, at least, of the customs
duties, of which complaint is made, were not imposed and collected "u ntil Congress otherwise constitutionally directed" respecting the entry into
ports of the Philippine Islands of articles brought
from the States of the Union.




195
The legislation known as the Spooner amendment to the army appropriation bill approved
March 2, 1901, contained, among other provisions,
the following:
All military, civil, and judicial powers
necessary to govern the Philippine Islands,
acquired from Spain by the treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and
at Washington on the seventh day of
November, nineteen hundred, shall, until
otherwise provided by Congress, be vested
in such person and persons and shall be
exercised in such manner as the President
of the United States shall direct, for the
establishment of civil government and for
maintaining and protecting the inhabitants
of said islands in the free enjoyment of
their liberty, property, and religion.
In order to accomplish the purposes set forth in
the enactment above quoted it was essential that
the government attempting such accomplishment
should have funds available for that purpose. As
stated by Mr. Justice Brown in Dooley v. United
States (182 U. S., 230):
Upon the occupation of the country by
the military forces of the United States the
authority of the Spanish Government was
superseded, but the necessity for a revenue
did not cease. The government must be
carried on, and there was no one left to administer its functions but the military forces
of the United States. Money is requisite




196


for that purpose, and money could only be
raised by order of the military commander.
The most natural method was by the continuation of existing duties.
At the time of the enactment of this legislation
Congress was well advised as to conditions existing in the Philippine Islands. It knew of the
insurrection which had been raging for two years;  e
it knew that the insurrection was of such character
and extent that it was impossible for the government of civil affairs to levy and collect taxes on
real and personal property throughout the islands.
From time to time the President had informed
Congress as to the course pursued in the administration of the affairs of civil government in the
islands and of the fact that the principal, if not
the only, means of securing revenue for that government had been the issuance and enforcement of
his legislative order dated July 12, 1898. Congress
might have appropriated funds belonging to the
United States for carrying out the purposes declared by the amendment, but it did not do so, and
its inaction can not be accounted for on any other
hypothesis than that Congress considered the provisions of the amendment conferred sufficient
authority, if such additional authority were needed,
to continue in force and effect the revenue measures theretofore adopted by exercise of the national
powers of the United States in the Philippine
Archipelago.




197
Pursuant to the approval of Congress of the
course adopted to secure revenue for the government of the Philippine Islands and the authority
specifically conferred by said legislation, the legislative order of July 12, 1898, was continued in
force.
In exercising the national authority to provide
revenue measures for the government of the
Philippine Islands it was necessary for the President to consider the international obligations
respecting the commerce of those islands. By far
the larger portion of the importations into the
islands came from the United States and Spain.
Article IV of the treaty of peace is as follows:
The United States will, for the term of
ten years from the date of the exchange of
the ratifications of the present treaty, admit
Spanish ships and merchandise to the ports
of the Philippine Islands on the same terms
as ships and merchandise of the United
States.
Of necessity, customs duties must be levied on
goods coming from the States of the Union, or
Spanish goods must be admitted free, in which
event the revenue would be inadequate to meet the
wants of the island government.
In addition it was necessary that consideration
be given to what is known as the "open door in
the Philippines."
In the instructions of President McKinley to




198
our Peace Commissioners to Paris, dated September 16, 1898, he said:
Incidental to our tenure in the Philippines is the commercial opportunity to
which American statesmanship can not be
indifferent. It is just to use every legitimate means for the enlargement of American trade; but we seek no advantages in
the Orient which are not common to all.
Asking only the open door for ourselves, we
are ready to accord the open door to others.
At the time these instructions were given it had
not been determined to demand the cession of the
Philippines.
On.November 15, in a cable dispatch from Paris
to Secretary Hay, stating the position which the
American Commissioners proposed to present to
the Spanish Commissioners as embodying the final
position of our Government, unless otherwise instructed, Mr. Moore, secretary of the Commission,
said:
The Government of the United States is
unable to modify the proposal heretofore
made for the cession of the entire archipelago of the Philippine Islands; but the
American Commissioners are authorized to
offer to Spain, in case the cession should be
agreed to, the sum of twenty million dollars, to be paid in accordance with the terms
to be fixed in the Treaty of Peace; and, it
being the policy of the United States to maintain in the Philippine Islands an open door to
the commerce of the world, the American


4




199
Commissioners are prepared to insert in the
treaty now in contemplation a stipulation
to the effect that for a term of years Spanish ships and merchandise shall be admitted
into the ports of the Philippine Islands on
the same terms as American ships and
merchandise.
The course proposed by the American Commissioners was approved by the President, as appears
from a telegram from Secretary Hay to Judge Day,
sent on the following day.
In protocol No. 15, annex 1, of the conferences
at Paris, in the reply of the American Commissioners to a memorandum presented by the Span -
ish Commissioners on November 16, 1898, the
following appears:
And, it being the policy of the United States
to maintain in the Philippines an open door to
the world's conmmnerce, the American Commissioners are prepared to insert in the treaty
now in contemplation a stipulation that for
a term of years Spanish ships and merchan -
dise shall be admitted into the ports of the
Philippine Islands on the same terms as
American ships and merchandise.
In annex 1 to protocol No. 16, in a letter from
the president of the Spanish. Commissioners to
Judge Day, dated November 22, 1898, the following question is asked:
Is the offer made by the United States to
Spain to establish for a certain number of
years similar conditions in the ports of the




200
archipelago for vessels and merchandise of
both nations, an offer which is preceded by
the assertion that the policy of the United
States is to maintain an open door to the
wvorld's commerce, to be taken in the sense
that the vessels and goods of other nations
are to enjoy or can enjoy the same privilege
which for a certain time is granted those of
Spain, while the United States do not change  3
said policy?
On the same date Judge Day, in replying to the
foregoing (Annex 2 to Protocol No. 16), said:
The declaration that the policy of the United
States in the Philippines. will be that of an
open door to the world's commerce necessarily
implies that the offer to place Spanish vessels and merchandise on the same footing
as American is not intended to be exclusive.
But the offer to give Spain that privilege for
a term of years is intended to secure it for
her for a certain period by special treaty
stipulation, whatever might be at any time
the general policy of the United States.
The foregoing and other considerations impelled
adherence to a policy under which at all times
since the promulgation of the President's order
dated July 12, 1898, goods, wares, and merchandise owned by private individuals or concerns and
brought from the States of the Union into the
Philippine Islands for commercial purposes, have
been subjected to the payment of duties.
To meet the varying conditions arising from
time to time, changes were made in the regulations




201
and schedules of rates prescribed by order of July
12, 1898,'but the requirement that the government
of the Philippine Islands should exercise the right
to secure revenue by the levy and collection of
taxes and duties was continuously in force. In
1901 the government of the Philippine Islands had
secured sufficient knowledge of the necessities of
the trade of that territory to enable it to formulate
schedules of rates and regulations better adapted
to existing conditions than those theretofore prevailing. Thereupon the Philippine Commission,
exercising the powers of the legislative branch of
the government of the islands, which powers were
then vested in the President and were exercised
by the Commission by his direction and as an
instrument of the Executive, adopted the legislative act of the Philippine Commission, No. 230,
entitled "An act to revise and amend the tariff
laws of the Philippine Archipelago." The enacting clause of said law is as follows: "By the
authority of the President of the United States,
and with the approval of the Secretary of War
first had, be it enacted by the United States Philippine Commission."
Section 1 of said act is as follows:
SECTION 1. The provisions of General Order No. 49, office of the United States
military governor in the Philippine Islands,
dated October 23, 1899, relating to customs
duties on imports and exports of the Philippine Islands and tonnage duties and wharf




202


charges therein, and the several orders supplemental thereto and amendatory thereof,
are hereby amended to read as follows.
General Order No. 49 was an order promulgating the order of the President dated July 12, 1898,
with the modifications of regulations and schedules
adopted prior to October 23, 1899.
Section 10 of said act is as follows:
SEC. 10. Importations from the United
States are dutiable under the provisions of
this act, but no customs duties shall be imposed on articles, goods, or merchandise
transported only from one place or port to
another place or port in the Philippine
Islands.
The act of Congress of the United States approved March 8, 1902, entitled "An act temporarily to provide revenue for the Philippine Islands,
and for other purposes," provides as follows (32
Stats., 54):
Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, That the provisions of an act entitled "An act to revise
and amend the tariff laws of the Philippine
Archipelago," enacted by the United States
Philippine Commission on the seventeenth
day of September, nineteen hundred and
one, shall be and remain in full force and
effect, and there shall be levied, collected,
and paid upon all articles coming into the
Philippine Archipelago from the United




203
States the rates of duty which are required
by the said act to be levied, collected, and
paid upon like articles imported from for —
eign countries into said archipelago.
The act of Congress approved July 1, 1902,
entitled "An act temporarily to provide for the
administration of the affairs of civil government
in the Philippine Islands, and for other purposes,"
provides as follows (32 Stats., 691):
Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, That the action
of the President of the United States in
creating the Philippine Commission and
authorizing said Commission to exercise the
powers of government to the extent and in
the manner and form and subject to the
regulation and control set forth in the instructions of the President to the Philippine
Commission, dated April seventh, nineteen
hundred, and in creating the offices of civil
governor and vice-governor of the Philippine Islands, and authorizing said civil governor and vice-governor to exercise the
powers of government to the extent and in
the manner and form set forth in the Executive order dated June twenty-first, nineteen hundred and one, and in establishing
four executive departments of government
in said islands as set forth in the act
of the Philippine Commission, entitled
"An act providing an organization for the
departments of the interior, of commerce




204


and police, of finance and justice, and of
public instruction," enacted September
sixth, nineteen hundred and one, is hereby
approved, ratified, and confirmed, and until
otherwise provided by law the said islands
shall continue to be governed as thereby
and herein provided, and all laws passed
hereafter by the Philippine Commission
shall have an enacting clause as follows:
"By authority of the United States be it
enacted by the Philippine Commission."
The provisions of section eighteen hundred
and ninety-one of the Revised Statutes of
eighteen hundred and seventy-eight shall
not apply to the Philippine Islands.
Future appointments of civil governor,
vice-governor, members of said Commission,
and heads of executive departments shall
be made by the President, by and with the
advice and consent of the Senate.
SEC. 2. That the action of the President of
the United States heretofore taken by virtue of
the authority vested in him as Commander in
Chief of the Army and Navy, as set forth in
his order of July twelfth, eighteen hundred and
ninety-eight, whereby a tariff of duties and
taxes as set forth by said order was to be levied
and collected at all ports and places in the
Philippine Islands upon passing into the occupation and possession of the forces of the United
States, together with the subsequent amendments of said order, are hereby approved,
ratified and confirmed, and the action of the
authorities of the government of the Philippine




205


Islands, taken in accordance with the provisions of said order and subsequent amendments, are hereby approved: Provided, That
nothing contained in this section shall be held
to amendi or repeal an act entitled "An act
temporarily to provide revenue for the Philippine  Islands,  and  for other purposes,"
approved March eighth, nineteen hundred and
two.
SEC. 3. That the President of the United
States, during such time as and whenever the
sovereignty and authority of the United States
encounter armed resistance in the Philippine
Islands, until otherwise provided by Congress,
shall continue to regulate and control commercial intercourse with and.within said islands
by such general rules and regulations as he, in
his discretion, may deem most conducive to the
public interests and the general welfare.
The instructions of the President to the Philippine Commission, dated April 7, 1900, ratified by
section 1, above quoted, conferred legislative authority on the Commission, and further provided
as follows (p. 4):
Exercise of this legislative authority will
include the making of rules and orders,
having the effect of law, for the raising of
revenue by taxes, customs duties, and imposts. *
Respecting the effect of an act of Congress ratifying the action of the President, taken without
authority of Congress previously obtained, in imposing restrictions upon trade with the ports of the




206
4
Southern States upon the outbreak of the insurrection which developed into the civil war, the
Supreme Court, in the Prize Cases, say (2 Black.,
670, 671):
If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in almost every act
passed at the extraordinary session of the
Legislature of 1861, which was wholly employed in enacting laws to enable the Government to prosecute the war with vigor
and efficiency. And, finally, in 1861, we
find Congress "ex majore cautela" and in
anticipation of such- astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and
orders of the President, etc., as if they had
been issued and done under the previous express authority and direction of the Congress
of the United States."
Without admitting that such an act was
necessary under the circumstances, it is
plain that if the President had in any manner assumed powers which it was necessary
should have the authority or sanction of
Congress, that on the well-known principle
of law, " omnis ratihabitio retrotrahitur et
mandato equiparatur," this ratification has
operated to perfectly cure the defect. In
the case of Brown v. United States (8 Cr.,
131, 132, 133) Mr. Justice Story treats of
this subject and cites numerous authorities
to which we may refer to prove this position,
and concludes: "I am   perfectly satisfied




207


that no subject can commence hostilities or
capture property of an enemy when the sovereign has prohibited it. But suppose he
did; I would ask if the sovereign may not
ratify his proceedings, and thus by a retroactive operation give validity to them? "
Although Mr. Justice Story dissented from
the majority of the court on the whole case,
the doctrine stated by him on this point is
correct and fully substantiated by authority.
The objection made to this act of ratification, that it is ex p)ost facto, and therefore unconstitutional and void, might possibly have
some weight on the trial of an ilndictment
in a criminal court. But precedents from
that source can not be received as authoritative in a tribunal administering public and
international law.
In discussing the effect of the act of Congress
approved July 2, 1864 (12 Stats., 820), upon the
action of the President and Treasury Department
in requiring the payment of 4 cents a pound on
all cotton purchased in territory affected by the
hostilities of the civil war, the Supreme Court say
(HHamilton v. Dillin, 21 Wall., 96-97):
We are also of opinion that the act of
July 2, 1864, recognized and confirmed the
regulations in question. It is sufficient to
quote a portion of the third section to evince
the correctness of this conclusion. It enacts as follows: "That all moneys arising
from the leasing of abandoned lands, houses,
and tenements, or from sales of captured
8812-03   14




208


and abandoned property collected and sold
in pursuance of said act, or of this act, or
from fees collected under the rules and regulations made by the Secretary of the Treasury and approved by the President, dated,
respectively, the 28th of August, 1862, 31st
of March, and 11th of September, 1863, or
under any amendments or modifications
thereof which have been or shall be made by
the Secretary of the Treasury and approved
by the President, for conducting the commercial intercourse which has been or shall
be licensed and permitted by the President
with and in States declared in insurrection,
shall, after satisfying therefrom all necessary
expenses, to be approved by the Secretary
of the Treasury, be paid into the Treasury
of the United States; and all accounts of
moneys received or expended in connection
therewith shall be audited by the proper
accounting officers of the Treasury.
Here the regulations in question are referred to by name and date, and the money
accruing under their operation (the great
bulk of which was derived from the bonus
on cotton) was directed to be paid into the
Treasury. It is designated by the term
"fees," it is true, but that was the designation used in the regulations themselves. It
will be observed that the law was prospective, relating to moneys thereafter to be
received, as well as to those already received.
This was clearly an implied recognition and
ratification of the regulations so far as any
ratification on the part of Congress may
have been necessary to their validity.




209
In Dooley v. United States (182 U. S., 234) Mr.
Justice White in delivering the opinion of the
majority of the court discusses the authority of a
military commander to legislate for territory subject to military occupancy by the forces under his
command, and sustains the right of such commander to exercise the powers of the legislative
branch, including the right to levy import duties
on goods entering the territory from foreignt cou ntries; the court held, further, that as to Porto
Rico, the United States was a foreign country until the conclusion of the treaty of peace, during
which period of time the military commander of
the forces of the United States maintaining military occupancy of the island was authorized to
impose customs duties on goods entering the ports
of that island from the United States, but upon
the treaty being concluded such military cornmmander ceased to possess the authority to impose
customs duties on such goods unless Congress assented to the continued exercise of such authority.
In immediate connection with the discussion of
the termination of the authority of the officer in
command in Porto Rico to levy duties on goods
from the United States, Mr. Justice Brown says
(pp. 234-235):
His power to administer would be absolute, but his power to legislate would not be
without certain restrictions-in other words,
they would not extend beyond the necessities of the case. Thus in the case of The




210


Admittance; Jecker v. Montgomery, 13 How.,
498, it was held that neither the President
nor the military commander could establish
a court of prize, competent to take jurisdiction of a case of capture, whose judgments
would be conclusive in other admiralty courts.
It was said that the courts established in
Mexico during the war "were nothing more
than agents of the military power, to assist
in preserving order in the conquered territory, and to protect the inhabitants in their
persons and property while it was occupied
by the American arms. They were subject
to the military power and their decisions
under its control whenever the commanding officer thought proper to interfere.
They were not courts of the United States,
and had no right to adjudicate upon a question of prize or no prize," a(lthotgh Congress,
in the exercise of its general authority in relation to the national courts, Iwould hale power
to valtidate their action.  The Grapeshot, 9
Wall., 129, 133.
The United States submits, with deference, that
when consideration is given the Spooner amendment, the ratification by Congress and the decisions
of the courts above cited, there remains no ground
upon which the collection of the duties imposed at
the ports of the Philippine Islands pursuant to the
order of the President, dated July 12, 1898, can be
challenged.
The claimant concedes that the provisions of the
Spooner Amendment are sufficient, in word and




211
spirit, to authorize the legislative orders under
which the duties were exacted, but advances the
proposition that Congress was without authority
to put in force the provisions of that amendment.
In its brief (pp. 29-30) claimant says:
We must accept for the moment the decision of Dowines v. Bidwell (182 U. S.),
which, in sustaining the Foraker Act, held
that Congress in dealing with the possessions acquired under the treaty of Paris
was not bound by the rule of uniformity
laid down in the Constitution.
The only legislation upon which any reliance can be placed to sustain the contention
that Congress has permitted a discrimination
against the Philippine Islands similar to that
enacted against Porto Rico is that known
as the Spooner Amendment.
This was a full though temporary abdication of the power and an abandonment of
the duty of legislation for the newly acqaired territory until Congress should see
fit to resume its intermitted functions and,
in the language of the act, "establish a
permanent government in said archipelago."
The act set at naught the fundamental
distinction between the legislative and the
executive departments of our Government
and attempted to clothe the Executive with
a power which the Constitution had denied
to him, and to shirk the fulfillment of a
duty which the Constitution had imposed
upon the legislative department.




212
The claimant ignores the important considerations (1) that the Spooner amendment was enacted
by an exercise of the war powers of the nation and
provides for the exercise of those powers; (2) that
said powers were to be exercised in respect of
newly acquired territory not privileged and conditioned by the provisions of the Constitution; (3)
that said powers were to be exercised in territory
wherein the military forces of the United States
were engaged in suppressing an insurrection which
had for its objects the overthrow and expulsion of
the sovereignty of the United States from that
territory and the establishment of another independent sovereignty therein.
The case of Ameri(ca  Insirance Compainy v.
Canter (1 Pet., 511) establishes the rule that the
government of civil affairs in territory subject to
the sovereignty of the United States, but not privileged and conditioned by the Constitution, may
be authorized by Congress to legislate as to matters which in territory privileged and conditioned
by the Constitution are subject only to legislation
by Congress. That case presented the question of
the authority of the legislative branch of the government established in Florida upon its acquisition
by the United States in 1821 to confer upon the
courts of that government jurisdiction in admiralty
proceedings. It was insisted that the Constitution gave exclusive jurisdiction of admiralty proceedings to the Federal courts (Art. III, sec. 2),
and therefore a decree entered in a proceeding in




213


admiralty by a territorial court of Florida was null
and void.   The Supreme Court of the United
States held as follows (syllabus, p. 512):
Although ad(miralty jurisdiction can be
exercised in the States in those courts only
which are established in purusuance of the
third article of the Constitution, the same
limitation does not extend to the Territories; in legislating for them  Congress
exercises the comnbined powers of the General and State goverlnmlents.
The act of the Territorial legislature of
Florida, erecting a court which lproceeded,
under the provisions of the law, to decree,
for salvage, the sale of a cargo of a vessel
which had been stranded and which cargo
had been brought witlill the Territorial
limits, is not inconsistent with the laws and
Constitution of the United States and is
valid; and consequently a sale of the property made in pursuance of it changed the
property.
In Douwnes v. Bidwlell (182 U. S., 244) the court
review America('   Ins. iCo. v. Canter', and in concluding the examination say (p. 267):
It is sufficient to say that this case has ever
since been accepted. as authority for the
proposition that the judicial clause of the
Constitution has no application to courts
created in the Territories, and that with respect to them Congress has a power wholly
unrestricted by it. We must assume as a
logical inference from this case that the




214


other powers vested in Congress by the Constitution have no application to these Territories, or that the judicial clause is exceptional in that particular.
VII.
Examination of certain propositions advanced in brief
of claimant and not hereinbefore reviewed.
The claimant in its brief (p. 1) brings to the
attention of the court that "the exactions in
question were made at various times from the 13th
of December, 1898, to the 25th of October, 1901,"
pursuant to an order of the President as Commander in Chief of the Army and Navy, dated
July 12, 1898.
The claimant insists (p. 2)That such order, both by its intendment
and by virtue of the Constitution and laws
of the United States, ceased to be operative
or of any force or effect immediately upon
the cession of the Philippine Islands to the
United States by the treaty of peace of the
10th of December, 1898.
As a consequence, all duties and taxes
levied and collected under such order after
the ratification of such treaty were collected
without warrant of law and should be refunded to the claimant.
In Dooley v. United States (182 U. S., 122) the
court say (p. 230):
While it is true the treaty of peace was
signed December 10, 1898, it did not take
effect upon individual rights until there




215
was an exchange of ratifications, and the
court sustained the enforcement in Porto
Rico of "the tariffs of August 19, 1898 and
February 1, 1899, prescribed by the President as Commander in Chief, which continued in effect until April 11, 1899, the
date of the ratification.
The court will therefore have no occasion to con -
sider the exactions made "on the 13th of December, 1898," or on any date subsequent thereto prior
to April 11, 1899.
The claimant devotes nineteen pages of its brief
(4-23) to a discussion of the legal effect of a condition of fact which is not involved in this action.
The statement of fact on which the claimant bases
the argument set forth in Part I of its brief is the
exact reverse of the fact upon which this action is
founded.
This action is brought to recover money collected
at Manila and Iloilo as customs duties on goods
brought into the Philippine Islands. The argument of the claimant asserts that this suit is for
the recovery of "the collection of a tax imposed
upon imports from the Philippine Islands" (p. 4),
and proceeds to state and discuss propositions which
might arise had the duties been collected at New
York and San Francisco on goods shipped from
Manila and Iloilo.




216 -The statement referred to appears on pages 4
and 5 of claimant's brief, as follows:
there is no ground upon which the collection
of a tax imposed upon imports from the Philippine Islands by the military order of the
President under date of July 12, 1898, can
be defended, unless the Attorney-General
can establish as a sound legal proposition
eitherI. (a) That the insurrection has grown to
the proportions of a civil war between a
legitimate government and a de facto sovereignty.
(b) That the enemy did in fact hold and
occupy the ports of Manila and Iloilo by
hostile force at the time of the importations
upon which taxes were levied under the
President's order of July 12, 1898.
Part I of claimant's brief (pp. 5-23) is devoted
to argument as to the absence of authority for the
President, by military order, to impose customs
duties on goods imported from  the Philippine
Islands presumably into ports of the States of the
Union. The proposition is not involved in the
case at bar. This action calls for the consideration of the authority of the President as Commander in Chief to impose conditions upon the
privilege of bringing merchandise into territory
subject to military occupancy by the military
forces of the United States.
The United States denies the correctness of the
proposition advanced by the claimant (p. 5) that




217


to justify the exaction of the customs duties involved in this suit it is necessary to establishThat the enemy did in fact hold and occupy the ports of Manila and Iloilo by force
at the time of the importations upon which
taxes were levied under the President's
order of July 12, 1898.
If "the enemy did in fact hold and occupy the
ports of Manila and Iloilo by hostile force at the
time of the importations" into those ports, the
United States would have been without authority
or jurisdiction to exact customs duties in said
ports. The jurisdiction so to do would pass under
the laws of war to the commander of the military
forces maintaining the possession and occupancy.
If the proposition asserted by the claimant were
correct, the rule would be that a nation at war is
authorized to exact military contributions in those
places only which are not held and occupied by
its military forces and therefore not subject to its
military jurisdiction; such contention would be
facile princeps among propositions classified as
absurd.
The claimant elaborates its proposition on page
9 of its brief, as follows:
To sustain the proposition that the inhabitants of the Philippines are subject to the
imposition of military contributions under
orders of the Commander in Chief, it would
therefore be necessary to establish, in the
language of the Supreme Court, that the




218


islands are under the control and sovereignty, however temporary, of an alien
power which has jurisdiction to claim and
enforce allegiance from those domiciled in
the territory, or, in the language of Judge
Story, that the territory passed under the
allegiance and sovereignty of the enemy;
that the sovereignty of the United States
over the territory was suspended and the
laws of the United States could no longer
be rightfully enforcel or be obligatory upon
the inhabitants who remained and submitted
to the Filipino insurgents; that these inhabitants became subject to such laws only
as the Filipinos chose to impose, and that
no other laws could in the nature of things
be obligatory upon them.
The case referred to as "in the language of the
Supreme Court " and as " in the language of Judge
Story" is United States v. Hayctood (26 Fed. Cases,
No. 15336, p. 247), decided by the United States
circuit court, district of Massachusetts.  The
question in that case, bearing on the proposition
advanced by the claimant, arose as follows: Certain
goods were loaded at Halifax, Nova Scotia, and
brought to the town of Castine, in Maine, at a time
when said town was held and occupied by the
British forces as an incident of the war at the
time prevailing. between Great Britain and the
United States. The United States contended that
the landing of said goods at Castine was a violation of the act of March 1, 1809, known as the




219
"nonintercourse" act.  As to that contention
Judge Story said (p. 246):
This leads me to the third objection, viz:
That the bringing of the goods from Halifax to Castine was sufficient to all purposes
to entitle the United States to a verdict on
the first and third counts. *:       It
rests altogether upon the assumption that
Castine was to be deemed a port of the
United States, in which the laws had their
full operation, notwithstanding it was at
the time of the supposed importation il the
full possession of Great Britain.  This
position, however, is utterly inadmissible
upon every principle of the law of nations.
By the conquest and occupation the laws of
the United States were necessarily suspended in Castine, and by their surrender
the inhabitants became subject to such
laws, and such laws only, as the conquerors
chose to impose. No other laws could, in
the nature of things, be obligatory upon
them, for where there is no protectiol or
sovereignty there can be no claim to obedience.
In United States v. Rice (4 Wheat., 246) the
court considered the effect of the British occupation of Castine on the right of the United States
to exact customs duties in that port during the
time it was occupied by the British, and determined as follows:
The single question arising on the pleadings in this case is, Whether goods imported




220


into Castine during its occupation by the
enemy are liable to the duties imposed by
the revenue laws upon goods imported into
the United States'? It appears by the plead -
ings that on the 1st day of September, 1814,
Castine was captured by the enemy and remained in his exclusive possession, under
the command and control of his military and
naval forces, until after 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 the 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 all of
opinion that the claim for duties can not
be sustained. By the conquest and military occupation of Castine 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




221
inhabitants who remained and submitted to
the conquerors. By the surrender the inhabitants pased under a temporary allegiance to the British Government and were
bound by such laws, and such only, as it
chose-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. 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.
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. The
doctrines respecting the jfs postlim'ifii are
wholly inapplicable to the case. The goods
were liable to American duties when imported or not at all. That they were not so
liable at the time of importation is clear from
what has already been stated; and when
upon the return of peace the jurisdiction of
the United States was reassumed, they were
in the same predicament as they would have
been if Castine had been a foreign territory
ceded by treaty to the United States and the
goods had been previously imported there.
In the latter case there would be no pretense to say that American duties could be




222


demanded, and upon principles of public or
municipal law the cases are not distinguishable. The authorities cited at the bar would,
if there were any doubt, be decisive of the
question. But we think it too clear to require
any aid from authority.
These cases sustain the doctrine that territory
and inhabitants within the boundaries of a State
of the Union, unquestionably bound and benefited
by the laws and Constitution of the United States
in time of peace, may be released from such obligation and deprived of such benefits by the incidents of war; in other words, become foreign as a
result of military occupancy.
All of the authorities cited by the claimant in
support of its extraordinary contention clearly establish the fallacy of the doctrine that in order to
justify the order of the President requiring the
payment of customs duties on goods brought' into
the ports at Manila and Iloilo, it is necessary to
establish, to quote the language of the claimant
(p. 5)That the enemy did, in fact, hold and
occupy the ports of Manila and Iolilo by
hostile force at the time of the importations
upon which taxes were levied under the
President's order of July 12, 1898.
In attempting to establish the impossibility of
fulfilling the requirements set forth in its proposition, claimant says (p. 5.):
The insurrection in the Philippines presents none of the elements requisite to con



223
stitute the islands hostile territory. To
make territory hostile there must be on the
part of the insurgents firm and full possession and control of such territory, excluding
the exercise of any other sovereignty than
their own.   (The Prize Cases, 2 Black,
635.)
This definition ignores the difference between
hostile territory and captured territory. Captured
territory is necessarily hostile, but it does not follow that territory to be hostile must be captured.
Territory is hostile during the period the contending military forces operating therein seek to determine by force of arms which combatant shall
secure "firm and full possession and control of
such territory, excluding the exercise of any other
sovereignty than their own."
The Prize Cases (2 Black., 635) do not sustain
the claimant's contention. In those cases the
court describes the situation existing as to the
possession and control of the territory of the Southern States, but do not say that only such conditions justify the National Government in exercising
the rights of a belligerent and adopting adequate
measures for dealing with a national emergency.
In United States v. Rice (4 Wheat., 246) the
court discuss the conditions necessary to make
territory foreign and do not attempt to say what
makes territory hostile.
The citations, on page 7 of claimant's brief, of
8812-03   15




224


accepted works on international law refer to discussions, by those writers, of the question as to
when an insurgent community becomes an independent State; or the conditions justifying neutral nations in recognizing the forces of the insurrection as belligerent; or when the commander of
insurgent forces, of his own motion, may lawfully
exercise the rights of a belligerent.
The claimant concedes that the exactions complained of herein will be justified if it be establishedThat the tax in question was imposed as
a military contributionupon  * * * trade
with the enemy* * *       as a condition
upon which such trade with the enemy was
permitted.  (Par. c, p. 5.)
The enemy, as determined by the laws of war,
include the inhabitants of territory subject to
military occupancy. This is especially apparent
when the military occupancy results from insurrection, for then the condition of war is created by
the action of the inhabitants, prompted by their
own desires; while in a war between sovereign States the inhabitants of territory subject to the combating sovereignties become
enemies, and their territory liable to military
occupancy as a result of action by a sovereign,
taken pursuant to purposes and desires in which
the inhabitants of the territory may have neither
sympathy nor interest. For instance, the inhabitants of the Philippine Islands became enemies of




225


the United States upon the instant Spain committed an overt act of war rather than comply with
the demand to withdraw its sovereignty from
Cuba, and were likewise enemies when they rose
in insurrection and produced the condition of war
in said islands by their efforts to expel the sovereignty of the United States from that archipelago,
and therefore the United States submit that the
matters and facts presented to the court in this
action fulfill the conditions prescribed by the
claimant.
The United States further submit that the collection of the customs duties involved herein is
justified (1) as an exercise of the lawful authority
of the President, as Commander in Chief, to impose conditions upon the privilege of engaging in
trade with territory subject to military occupancy
by the military forces of the United States; (2) as
an exercise of the lawful authority of the military
government of territory subject to military occupancy to secure revenue and provide funds for
defraying the expense of the administration of the
affairs of civil government in the territory so occupied; (3) as an exercise of the legislative powers
of the United States, authorized, ratified, and confirmed by the Congress of the United States.
Respectfully submitted.
CHARLES E. MAGOON,
Counsel.


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