The censorship was suspended on the signing of the armistice of August 12, 1898. (Mr. Day, Sec. of State, to Mr. Hay, ambass. to England, tel., Aug. 15, 1898, MS. Inst. Gr. Br. XXXII. 625.)

By the Universal Postal Convention of Vienna, Art. IV., which was in force during the war between the United States and Spain, "the right of transit" of the mails was guaranteed " throughout the entire territory" of the countries forming the Universal Postal Union, of which both the United States and Spain are members. No international discussion as to the disposition of mails arose during the war in question. The stipulation just quoted was, however, said "to insure the safe transit under any conditions of closed mails passing from one country of the Postal Union to another country of the Union," but to have "no bearing on mails passing from one post-office to another post-office in the same country."

Mr. Smith, Postmaster-General, to Sec. of State, June 1, 1898, MS. Misc.
Let.

Regulations adopted by China during the war with Japan, which required all ships entering the port of Shanghai, after seven o'clock at night, to anchor outside the harbor until the following morning, were considered as being "in the nature of a defensive measure to which objection could not well be taken."

Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé, No. 951, Sept. 28, 1894, MS. Inst. China, V. 95.

"In respect to the extinguishment of lighthouses, the Department is of opinion that such a measure, where it is fraught with danger to foreign vessels navigating the waters adjacent to the coast, may be resorted to only when there is good ground to believe that the lights would facilitate an impending attack at a particular point.”

Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé at Peking, Sept. 28, 1894, MS. Inst. China, V. 95.

X. MILITARY OCCUPATION.

1. OCCUPIED TERRITORY AND ITS ADMINISTRATION.

See supra, § 21.

§ 1143.

"Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be conBelligerent occupa- sidered as a British island. But for this doubt there Jon De facto can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purpose,

government.

they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark."

Thirty Hogsheads of Sugar v. Boyle (March 3, 1815), 9 Cranch, 191.
See, as to military occupation, Féraud-Giraud, Occupation militaire:
Recours à raison des dommages causés par la guerre; Delerot, Ver-
sailles pendant l'occupation; Verneville, De l'occupation comme mode
d'acquisition de la propriété en droit des gens.

The territory of Castine, by the conquest and occupation by Great Britain, passed under the temporary allegiance and sovereignty of the British sovereign. The sovereignty of the United States over the territory was suspended during such occupation, so that the laws of the United States could not be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. But a territory conquered by an enemy is not to be considered as incorporated into the dominions of that enemy without a renunciation in a treaty of peace, or a long and permanent possession. Until such incorporation it is still entitled to the full benefit of the law of postliminy.

United States v. Rice, 4 Wheat. 246; United States v. Hayward, 2 Gallison, 485.

On the occupation of New Mexico in 1846, General Kearny, commanding the American forces, established a provisional government. "By this substitution," says Mr. Justice Daniel, delivering the opinion of the court, "of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the Government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority should ordain. Amongst the consequences which would be necessarily incident to the change of sovereignty, would be the appointment or control of the agents by whom and the modes in which the government of the occupant should be administered—this result being indispensable, in order to secure those objects for which such a government is usually established."

In this relation, the opinion cites The Fama, 5 Robinson's Rep. 106; Vattel, bk. 3, chap. 13, sec. 200; United States v. Percheman, 7 Pet. S6, 87; Mitchel ». United States, 9 Pet. 711; 1 Kent's Comm. 177.

General Kearny, among other things, established courts and a code of laws. The present action was brought in one of those courts and under a provision of the code. Congress, by an act approved Sept.

9. 1850 (9 Stat. 446), established a Territorial government for New Mexico. The legislative assembly of the Territory, by an act of July 14, 1851. provided for the transfer of suits and processes of the Kearny courts to the new courts, and this was done in the present

case.

No question was made by counsel as to the validity of the Kearney ordinances, said the court," 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 previous institution of the vanquished or deposed political power which was incompatible with them." But it was contended that all rights of the occupying conqueror, as such, were terminated by the close of the war, and that the prior institutions, which were overthrown or suspended, were revived and reestablished. The fallacy of this pretension," said the court, "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 and sovereignty; and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms. We conclude, therefore, that the ordinances and institutions of the provisional government 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 reality, however, the opinion of the court on these points was obiter, since the case went off on a mere question of pleading, the opinion declaring that the record presented a matter "not within the appellate or revisory power" of the court.

Leitensdorfer r. Webb (1857), 20 How. 176.

See, also, Cross r. Harrison, 16 How. 164, 190.

While New Orleans was occupied by the United States forces during the civil war, a lease of water-front property was made to a -teamship company by the city authorities appointed by the commanding general. The lease was for ten years on payment of an annual rental, and the company entered into possession and proceeded to improve the property. Some months later the commanding general forbade the military city authorities to grant rights extending beyond the reestablishment of civil government, and soon afterwards the city government was transferred to the proper civil authorities, who undertook to remove by force a part of the company's property, maintaining that the military government had no power to lease property held in trust by the city for public uses, and that whatever

rights or powers the military authorities possessed ended with the termination of hostilities. The company applied for an injunction and damages. It was held that the powers of a military occupant in the exercise of the functions of government were limited only by the laws and usages of war; that a contract for the use of a part of the water front of the city was within the scope of the military occupant's authority; that the question therefore arose whether the contract under discussion represented a fair and reasonable exercise of such authority; that, considering the provisions of the lease, this question was to be answered in the affirmative; that the lease therefore did not fall when the military jurisdiction ended, and that the law of post liminium had no application to the case. The court added, however: "We do not intend to impugn the general principle that the contracts of the conqueror touching things in conquered territory lose their efficacy when his dominion ceases. We decide the case upon its own peculiar circumstances, which we think are sufficient. to take it out of the rule."

New Orleans v. Steamship Co., 20 Wall. 387.

Cited by Knox, At. Gen., Oct. 17, 1901, 23 Op. 551, 561, holding that sec. 3 of the joint resolution of May 1, 1900, 31 Stat. 715, imposing certain restrictions on the grant of franchises in Porto Rico, did not affect an antecedent license issued by the Secretary of War for the building and maintenance of a wharf at San Juan.

"In New 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 assume to such 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."

Mr. Justice Brown, delivering the opinion of the court, Dooley v. United
States (1901), 182 U. S. 222, 231.

The Constitution did not prohibit the creation by military authority of courts for the trial of civil causes during the civil war in

conquered portions of the insurgent States. The establishment of such courts was the exercise of the ordinary rights of conquest.

Mechanics and Traders' Bank v. Union Bank, 22 Wall. 276.

Petitioner, a resident native of Porto Rico, and a civilian, was tried, convicted, and sentenced in March, 1899, for a crime committed in that island, by a military tribunal of the United States established during the occupancy of the island by the forces of the United States. as conquered territory of Spain. Held, that so long as a state of war existed between Spain and the United States, and the island remained Spanish territory, which was until April 11, 1899, when ratifications of the treaty of peace and of cession were exchanged, such tribunal had jurisdiction to try offenses, and, no objection being made to the formal regularity of the proceedings, the petitioner was not entitled to discharge on a writ of habeas corpus.

Ex parte Ortiz, 100 Fed. Rep. 955.

The court has never gone further in protecting the property of citizens residing during the rebellion in the Confederate States from judicial sale than to declare that where such citizen has been driven from his home by a special military order and forbidden to return, judicial proceedings against him were void.

University r. Finch, 18 Wall. 106.

The capitulation of the Spanish forces in Santiago de Cuba and in the eastern part of the province of Santiago and the occupation of the territory by the forces of the United States render it necessary to instruct the military commander of the United States as to the conduct which he is to observe during the military occupation.

"The first effect of the military occupation of the enemy's territory is the severance of the former political relations of the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their private rights and relations. It is my desire that the inhabitants of Cuba should be acquainted with the purpose of the United States to discharge to the fullest extent its obligations in this regard. It will therefore be the duty of the commander of the army of occupation to announce and proclaim in the most public manner that we come not to make war upon the inhabitants of Cuba, nor upon any party or faction among them, but to protect them in their homes, in their employments, and in their personal and religious rights. All persons who, either by active aid or by honest submission, cooperate with the United States in its efforts to give effect to