74 MILITARY AID TO THE CIVIL POWER riences and will be presented successively in the next three sections of this chapter in a way designed to bring out the essential differences, good points, and weaknesses of each. It is believed that this method will disclose the underlying principles involved and enable us to arrive at a decision as to a satisfactory method of handling each situation. 13. THE PROBLEM IN GENERAL.-As a result of the military occupation of the territories acquired in the war with Spain, our Army found itself in control of millions of people of foreign races and languages, whose political institutions were essentially different from those of their conquerors. The despotic nature of the prior Spanish regime, however, enabled American military rule to be instituted without serious shock to the political feelings of the inhabitants. 14. DIVISION INTO PERIODS.-The military government exercised by the United States in Porto Rico may be considered as divided into three periods, as follows: First: From the beginning of the conquest of the island until the cessation of hostilities on August 14, 1898. Second: From the cessation of hostilities until the ratifi cation of the treaty of peace on April 11, 1899. MILITARY GOVERNMENT 75 Third: From the ratification of the treaty of peace until the transfer by the military governor on May 1, 1900, of the control of the civil affairs of the island to the first civil governor of Porto Rico appointed under the Act of Congress approved April 12, 1900. 15. HOW THE PERIODS DIFFERED IN CHARACTER.-The first period was one of actual belligerency. The second was a period of technical belligerency only. The third period was one in which the occupation was no longer hostile in fact, there being neither an actual nor a technical public enemy. The military governor nevertheless continued during the third period to legislate (issue orders) by way of effecting changes in codes with the same freedom as during the first and second periods. Some of these changes were of a very radical character, and the authority of the military governor so to legislate after the treaty of peace had become effective was seriously questioned. Congress, in finally providing for the organization of a civil government for Porto Rico, however, effectively settled the matter by ratifying the modifications in laws and ordinances that had been made by military orders during this period. 16. LEGAL ASPECT OF THE THIRD PERIOD.-Congress can declare war, but it cannot declare peace. The latter power is Constitutionally vested in the President, subject to ratification by a two-thirds vote of the Senate. The Treaty of Paris at the close of our war with Spain provided that Congress should determine the civil rights and political status of the native inhabitants of Porto Rico, but Congress adjourned, after the treaty had been ratified, without substituting a government of its own creation. The situation thereafter was really parallel with that which had previously prevailed in New Mexico. There, it will be remembered, the existence and operations of the agencies established by the military were held by the Supreme Court of the United States to be valid, even after the ratification of the treaty of peace terminating the war, until expressly revoked or modified by direct legislation of Congress, the provisional government being regarded as exercising its power in the meantime through delegation by Congress. In some quarters it was thought that there was a difference between that 76 MILITARY AID TO THE CIVIL POWER situation and the one in Porto Rico in that, in the latter case, the treaty of peace specifically provided that Congress should determine the rights, etc., of the natives of Porto Rico. The question was much discussed whether, in view of this provision, the determination could be made by a military governor or by any other agency than Congress. As a matter of fact, the provision in question added nothing to the power already vested in Congress by the Constitution. The Supreme Court of the United States had already previously established the principle that military government is legal and effective until superseded by Congress or the President (Cross vs. Harrison, 16 How. [U.S.] 164). The same court subsequently, in the case of Dooley vs. United States (182 U. S. 222), upheld the continuing authority of the military government in Porto Rico after the ratification of the Treaty of Paris and up until the time when Congress, by suitable enactment, determined upon and established a civil government in the occupied territory. The exercise of military government necessarily carries with it the authority to create or sanction such agencies (courts and officials) and issue such orders as may be necessary to preserve order in the conquered territory and protect the inhabitants in their persons and property during the military occupancy. As already stated, Congress, when it did act, simply ratified the laws put into effect by the military governor, thus giving them the same finality as if Congress had initiated them. 17. REASON FOR RATIFICATION BY CONGRESS.—The legislative changes effected by the military government in Porto Rico were ratified by Congress because of the wisdom and care and foresight that had been exercised by the military government in bringing the changes about. It was definitely known that the territory was to be retained by the United States. It was also definitely known that Congress, having once adjourned without providing a governmental system for Porto Rico, would no doubt provide such a system at its next session. The government had to be administered in the meantime. The manner in which the military governor of Porto Rico proceeded holds some valuable lessons for the military commander who may be confronted with MILITARY GOVERNMENT 77 such a situation in the future, particularly with reference to how he should set about his task and what should be his guide. 18. GOVERNMENTAL REFORMS.-Due to the unfortunate situation which had been brought about in the island by the inefficiency and inadequacy of the preceding Spanish regime, immediate governmental reforms were urgently needed. But who was to determine what changes should be made? Clearly, the military governor had the power to make the changes, but that is not the point. Under the American Constitution, the whole theory of government is based upon the principle that the people themselves are to make and enforce their own laws. Guided by this principle, the military governor at the beginning of the third period appointed two advisory boards (10 members) on governmental reforms. These were composed exclusively of distinguished citizens of Porto Rico. Counsel was also taken with many other public men who were known and distinguished for intelligence and patriotism. Before instituting changes of any moment, however, it was necessary to lay the foundation upon which the new governmental structure was to be built. 19. PLAN OF THE NEW GOVERNMENT.-a. It was manifest that the new military government organization should correspond as nearly as possible to the civil governmental organization which would, in due course of time, be established by Congressional enactment. It was reasonable to suppose that Congress would ultimately provide a governmental system patterned, as nearly as might be, after that of the Territories of the United States. The conception of the military governor, therefore, was that the territorial government which Congress would be likely to establish in Porto Rico would consist of a governor, a legislature, and a judiciary (three co-equal though independent branches), a secretary of state, an attorney general, a treasurer, an auditor, a bureau of public works, a bureau of agriculture, a board of charities, a board of education, and a few minor branches. 78 MILITARY AID TO THE CIVIL POWER b. Because of the constructive problem thus presented for solution, the third period of the military government is by far the most interesting and instructive of the three. Before proceeding further, however, it would be well to go back to the beginning of the occupation of the island by the American forces and see what proclamations and orders were issued by way of introducing the military government to the people and advising them as to their duties and obligations under it. 20. INITIAL PROCLAMATION AND SUPPLEMENTAL ORDERS. -a. On July 28, 1898, fourteen days before hostilities ceased, General Miles issued a proclamation which provided in part as follows: "The first effect of this occupation will be immediate release from your former political relations, and it is hoped a cheerful acceptance of the Government of the United States. it is not our purpose to interfere with any existing laws and customs that are wholesome and beneficial to your people so long as they conform to the rules of military administration and of order and justice." b. The next day, in amplification of his proclamation, General Miles published to the people of Porto Rico the identical instructions which President McKinley had earlier issued to the military commander in Cuba, and which already had been published to the Cuban people, these instructions being equally applicable to the situation in Porto Rico at this time. These instructions will be examined more fully in connection with the study of the military government of Cuba which will be taken up in the next section. (See par. 32.) 21. LOCAL CONDITIONS.-The conditions existing immediately after the invasion and for some time after hostilities had ceased were deplorable. The most important edifice in each pueblo was a church, the next in garrisoned towns was the barracks for the troops, and the third was usually a theater. These were all government buildings. Prior to 1899, there did not exist in all Porto Rico a single building that had been erected as a schoolhouse. The local laws formed an admirable code, designed to secure and protect the rights of the citizens, but they were applied in |