Overview of relevant US Supreme Court decisions which have a bearing on the Taiwan status issue

by Richard W. Hartzell

A discussion of military jurisdiction in Ex Parte Milligan (1866)

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [71 U.S. 2, 142] as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.


A discussion of the acquisition of territory by treaty cession in American Ins. Co. v. 356 Bales of Cotton (1828)

Chief Justice Marshall stated that "The Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.... The usage of the world is, if a nation be not entirely submilitary to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it is ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo and change. Their relations with their former sovereign are dissolved, and new relations are created between them, and the government which has acquired their territory. The same Act which transfers their country, transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse, and general conduct of individuals, remains in force, until altered by the newly created power of the state."


A discussion of an independent customs territory in Fleming v. Page (1850)

It is true, that, when Tampico had been captured...other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.

But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States while it was occupied by their arms did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President under which Tampico and the State of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they were in an enemy's country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest . . . .

Historical Background to the Mexican-American War:

1846.04.24    conflict between military forces of the two countries

1846.05.13    US declares war

1846.10.28    Port of Tampico occupied by US military forces

1847.09.14    surrender of Mexican military forces

1848.02.02    Mexico and US sign peace treaty
Note: United States v. Rice (1819) also discusses the concept of independent customs territory arising from military occupation.


A discussion of the power of Congress over territories in Downes v. Bidwell (1901)

That the power over the territories is vested in Congress [182 U.S. 244, 268] without limitation, and that this power has been considered the foundation upon which the territorial governments rest, was also asserted by Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 422, 4 L. ed. 579, 605, and in United States v. Gratiot, 14 Pet. 526, 10 L. ed. 573. So, too, in Church of Jesus Christ of L. D. S. v. United States, 136 U.S. 1 , 34 L. ed. 478, 10 Sup. Ct. Rep. 792, in holding that Congress had power to repeal the charter of the church, Mr. Justice Bradley used the following forceful language: "The power of Congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired. The power to acquire territory, other than the territory northwest of the Ohio River (which belonged to the United States at the adoption of the Constitution), is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession is an incident of national sovereignty."

. . . . . .

[ with reference to De Geofroy v. Riggs (1890)]

íKit becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the "United States". by which term we understand the states whose people united to form the Constitution,

Not only did the people in adopting the 13th Amendment thus recognize a distinction between the United States and 'any place subject to their jurisdiction,' but Congress itself, in the act of March 27, 1804 (2 Stat. at L. 298, chap. 56), providing for the proof of public records, applied the provisions of the act, not only to 'every court and office within the United States,' but to the 'courts and offices of the respective territories of the United States and countries subject to the jurisdiction of the United States,

Unless these words are to be rejected as meaningless, we must treat them as a recognition by Congress of the fact that there may be territories subject to the jurisdiction of the United States, which are not of the United States.

. . . . . .

[ with reference to Johnson v. M'Intosh (1823) ]

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.


A discussion of a self-governing dominion under the United States Military Government in Neely v. Henkel (1901)

In Neely v. Henkel, 180 U.S. 109 , 45 L. ed. 448, 21 Sup. Ct. Rep. 302 (Jan. 14, 1901), the question was whether Cuba was a foreign country or foreign territory within the act of Congress of June 6, 1900 (31 Stat. at L. 656, chap. 793, U. S. Comp. Stat. 1901, p. 3591), [205 U.S. 257, 264] providing for the extradition from the United States of persons committing crimes within any foreign country or foreign territory or any part thereof, occupied or under the control of the United States. And it was held that Cuba was within this description.

-- as quoted in Pearcy v. Stranahan (1907)

Historical Background to the Spanish-American War:

1898.02.15    conflict between military forces of the two countries

1898.04.22    US declares war

1898.06.21    surrender of Spanish military forces in Guam

1898.07.17    surrender of Spanish military forces in Cuba

1898.08.12    surrender of Spanish military forces in Puerto Rico

1898.08.14    surrender of Spanish military forces in the Philippines

1898.12.10    Spain and US sign peace treaty
Note: Occupied Cuba was a self-governing dominion held under US Military Government which was given "trust territory" characteristics by the USA. In regard to Taiwan, there is a self-governing dominion by San Francisco Peace Treaty cession. Another nomenclature for this would be a "quasi-trusteeship" of insular status.

It must be recognized that any ceded territory coming under the administrative authority of the US Military Government is inalienably endowed with 'basic constitutional rights' by the US Supreme Court. These basic rights are life, liberty, and property of the Fifth Amendment and the basic equal protections of the 14th Amendment. These inalienable rights arise from a territorial status known as "unincorporated territory" and categorically it has expressly included all of "Occupied Cuba" in the past.

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