The powers of the military government in time of peace in domestic territory being those simply of a local administrative agent of the United States, are subject to two general limitations. First, being of an administrative character, they do not include general legislative power, that is, the authority to establish laws of more than strictly local effects; and, second, such powers as are possessed, are subject to privileges and immunities created and guaranteed by the Constitution. How far these constitutional privileges apply to governments, whether military or civil, established in territories belonging to, but not " incorporated." into the United States, has been considered in an earlier chapter. In all other domestic territory, whether in a Territory or in a State lately in rebellion, these constitutional limitations apply, and the agents have, therefore, and can be endowed by Congress and the executive only with such powers as may be exercised at any time and in any place under the doctrines of "martial" as distinguished from "military law." 51 In short, their extent is measured by the necessity for their exercise.

Acting upon this principle, the Supreme Court in Raymond v. Thomas52 held void an act of a reconstruction military commander in South Carolina, by which he attempted to annul the decree of a court of that State. In its opinion the court said: "It was an arbitrary stretch of authority needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law, that the exercise of military power where the rights of the citizens are concerned, shall never be pushed beyond what the exigency requires." 53

51 See the next chapter.

52 91 U. S. 712; 23 L. ed. 434.

With reference to the absence of general legislative power, after war is terminated, the court in Dooley v. United States54 held that though, prior to the treaty of peace, the military commander might, as a belligerent right, levy customs duties on goods coming into Porto Rico from the United States, after that date he no longer had the authority.55

53 Citing Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75.

54 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. 55 In its opinion the court said:

"In their legal aspect, the duties exacted in this case were of three classes: (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 February 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.

"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. . . .

"Different considerations apply with respect to duties levied after the ratification of the treaty and the cession of the island to the United States. Porto Rico then ceased to be a foreign country, and, as we have just held in De Lima v. Bidwell, the right of the collector of New York to exact duties upon imports from that island ceased with the exchange of ratifications. 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. Harrison, 16 How. 164; 14 L. ed. 889. 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 importations from New York to Porto Rico also ceased. The spirit as well as the letter of the tariff laws admits of duties being levied by a military commander only upon importations from foreign countries; and, while his power is necessarily despotie, this must be understood rather in an administrative than in a legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. For instance it is clear that, while a military commander during the Civil War was in occupation of a southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. 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 Admittance (Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240) 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 the agents of the military power, to assist it 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,' although Congress, in the exercise of its general authority in relation to the national courts, would have power to validate their action. The Grapeshot, 9 Wall. 129; 19 L. ed. 651; sub nom. The Grapeshot v. Wallerstein.

"So, too, in Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75, it was held that, where the plaintiff entered Mexico during the war with that country, under a permission of the commander to trade with the enemy and under the sanction of the executive power of the United States, his property was not liable to seizure by law for such trading and that the officer directing the seizure was liable to an action for the value of the property taken. To the same effect is Mostyn v. Fabrigas, 1 Cowp. 180."