QlnrufU ICam i'rljaal Hibratji Militar DATE DUE i-^'^f^ RnSBBW teiHf^n7 CAVl. In this work, notwithstanding the great respect felt for those who entertain the former, the latter view is maintained. It is conceded by all that the common law is intolerant of arbitrary power. Yet it holds every act justifiable which is essential to the preservation of property and life. This is true where individuals are concerned. So much the more so is it when the country is menaced with invasion, or an attempt is made forcibly to overthrow the government or set that munic- ipal authority at defiance on which the welfare of all depends. Force may then repel force, and everything be done which is necessary to render the use of force effectual. There is no new principle involved in this. There is an analogous use of force exercised — on a smaller scale, to be sure — every day when under what is known as the "police power ' property is destroyed to stop the spread of a conflagr^.tion or to stamp out the germs of contsgious disease, leaving the owner remedi- less as against those who interposed in behalf of the public welf.ire. It may be requisite by a further and still greater exercise of martial-law authority to prevent insurrection by I. Appendix V, INTRODUCTION. 37 the arresi of suspected mdividu^ls and holding them in cus- tody until the enemy is repelled or the rebellion suppressed, or they m;y be brought to trial before a military tribunal, if the case will not admit of delay. This power can not, however, be used in an irresponsible manner. No official is so high or citizen so low that he is beyond the power or protection of the law. The exercise of this authority must not be taken against the law, but under it. On the face of things acts like those mentioned are trespasses which can only be justified by proving that the circumstances were such as to render it the duty of the officer to disregard the rights of individuals in view of the public safety. And he takes his measures, as before remarked, under a sense of possible accountability before the restored civil coxirts. Thus far both those who deny and those who assert the right of Congress to institute martial law are agreed. The question at this point arises, "Who has a right to authorize the exercise of this extraordinary authority?'^ And here they separate. The views of the former can not, perhaps, briefly be better expressed than by Mr. Hare in a learned treatise on constitu- tional law — a work of greatest worth, and from which much that has just been said regarding the nature of martial law has sub- stantially been taken. i "Military action," says this author, "should be prompt, meeting the danger and overcoming it on the instant. It can not, therefore, afford to await on the de- liberations of a legislative assembly. On the other hand, an act of Congress authorizing the exercise of martial law in a State or district gives the military commander a larger charter than the end in view requires or is consistent with freedom. Armed with the sanction of positive law, he need no longer consider whether his acts are justified by necessity. He may abuse the undefined power intrusted to his hands, and destroy life, liberty, and property without the shadow of an excuse, I. Pp. 954-55. Vol. 2 38 MILITARY GOVERNMENT AND MARTIAL LAW. on an idle report or a rumor that will not bear the light." i The martial-law power is essentially executive in its nature. It is not expressly given to Congress ; its exercise by the latter would seem to be in derogation of those rights of life, liberty, and property secured to the citizen by the 4th, 5 th, and 6th amendments to the Constitution, and therefore beyond the range of implied congressional powers. 2 In remarkiiig upon these objections to the exercise of martial-law powers by Congress the last can best be consid- ered first. In making it the commentator appears to have overlooked the decision of the Supreme Court of the United States, II Wallace, 268. It was there held that the amend- ments in question interposed no obstacle to the exercise by Congress of the war powers of the government. Section 6 of the act of July 17, 1862, rendered confiscable the property of any person who, owning property in any loyal district, should give aid and comfort to the rebellion. The person might be living on his propei-ty in a state of peace. The amendments relied on by Mr. Hare afforded him no protection; such was the decision of the court; the act was declared to be constitutional. It is difficult to perceive how Congress can have such au- thority, as the Supreme Court here decided it had, and yet not have constitutional power to institute martial law. The latter could not place the property of citizens more at the mercy of the government than the act of July 17, 1862, did in the cases specified. The act of March 3, 1863,3 placed the liberty of the subject at the will of the President. This also has been treated as constitutional by the Supreme Court. 4 If the martial-law power of Congress needed vindication, it was given in these acts, in the acts amendatory to the latter, 5 and in the I. Hare, Constitutional Law, Vol. 2, p. 968. 2. Ibid., pp. 931, 963, 964. Pomeroy, ibid., Sec. 714. 3. Sec. 4. 4 Hare, Vol. 2, p. 970. 5. May II, 1866; March 2, 1867. INTRODUOTIOlir. 39 decisions of the Supreme Court sustaining authority exercised under all the acts, i Had Congress formally proclaimed martial law, nothing thereby would have been added to powers conferred upon the Executive Department through these several laws. 2 But it is objected that under color of a martial-law act of Congress the officer might abuse his power without liability of being held responsible. 3 The Supreme Court has decided differently. In Luther v. Borden this question was directly before it, and the court explicitly rejected the doctrine that an officer could wanton with authority while exercising martial- law powers, 4 and laid down the true limits within which he must act. So as to the law expounded by the English courts. There an officer was held liable who, in enforcing martial law, had heedlessly and without due inves igation punished a civilian, this although a bill of indemnity had peen passed covering all acts taken ptursuant to martial law authority, s The bill of indemnity was not permitted to cover with the cloak of oblivion acts of needless cruelty. The opposite doc- trine has never in any degree received judicial sanction, and it is believed it never will. It is contrary to reason and ev- ery principle of justice that, under color of law, officers shall be permitted to inflict punishment unrestrained, except as prompted by a depraved heart, and then escape responsibility. The right and the duty of using force follow directly from the ideas of law and government. The Constitution has not left this matter in doubt. It states that the President "shall take care that the laws be faithfully executed." 6 Of these laws the Constitution is supreme. 7 If he have not the power in every respect, it is both the right and duty of Congress to supplement his authority by appropriate legislation. 8 In case than:^ ot only individuals, but States as such or communi- I. 1/ Wallace, 268; ibid., 331; 18 Wallace, 510; 95 U. S., 438; 106 ibid., 315 ; 1 10 U. S., 633. 2. Hare, Vol. 2, p. 970 et seq. 3. Hare, ibid., p. 968. 4. 7 Howard, p. 46. 5. 27 State Trials, 759. 6. Art. 2, Sec. 3. 7. Art. 6, clause 2. 8. Art. i, Sec. 8, clause 17. 40 MILITAEY GOVEENMBNT. AND MARTIAL LAW. ties, rebel against the laws and Constitution, the right of the Government to use force can no longer be questioned, i Dur- ing the Civil War the President first assumed martial-law pow- ers. Suspending the privilege of the writ of habeas corptis was one of these. The legislature gradually came in this work to his assistance. The Constitution gives Congress power to pass all laws necessary and proper for carrying into execution all powers vested in the President as head of the Executive Department. The means and instrumentalities referred to as within the authority of Congress are not enumerated or de- fined. They are left to the discretion of the legislature, subject only to the restriction that they be not expressly prohibited, and are necessary and proper for carrjdng into execution the powers mentioned. 2 And as to this, "It is not to be denied," said the Supreme Court of the United States, "that acts may be adapted to the exercise of lawful power, and appropriate to it, in seasons of exigency, which would be inappropriate at other times." 3 Speaking of the act of March 3, 1863, Mr. Hare observes that it "virtually established martial law by arming the Presi- dent and the officers under his command with a dictatorial power to deprive any man whom they regarded as inimical of liberty and property." Without acceding to this proposition in its entirety, we may recall the terms of praise in which the Supreme Coiurt referred to the provisions of the law thus in- veighed against. In Beard v. Biurts the defendant had shielded himse:lf behind the 4 th section of the act and the act amenda- tory thereto of May 11, 1866; and in the course of its opinion, reversing the decision of the Supreme Court of Tennessee, the Supreme Court of the United States remarks: "The orders of which the acts speak are military orders, and a large portion of such orders, as is well known, are merely permissive in form. They necessarily leave much to the discretion of those to whom they are addressed. We can not doubt that Congress 1. Von Hoist, Constitutional Law, p. 45; Prize Cases, 2 Black, 635. 2 Art. I, Sec. 8, clause 17. 3. 12 Wallace, ^sj et seg. INTRODUCTION. 4 1 had such orders in view, and that its action was intended to protect against civil suits those who do acts either commanded or authorized by them."i In Mitchell v. Clarke the action of a department commander in enforcing martial law on loyal soil indirectly came up before the Supreme Federal Tribunal for consideration. 2 The defendant strove to shelter himself, partially at all events, behind the same provision of law as the defendant in the other case just cited; the case went off upon another point, but the coiu-t took occasion to refer to the acts of Congress in question in terms of highest commenda- tion. So in Bean v. Beckwith, where the same section came under review, the object of the law was clearly stated, with no suggestion against the constitutionality; while in Beckwith V. Bean, which was a continuation of the former case, the court remarked, when reversing the action of the Vermont court, that the jury "could not well ignore the important fact that the arrest occurred at a period in the country's his- tory when the intensest public anxiety pervaded all classes for the fate of the Union." It is impossible to misunderstand the intention and effect of the various laws that have just been mentioned and others of similar import affecting the liberty and property of civilians passed during and just subsequent to the CivU War and the language of the Supreme Cotut when referring to them. They place on firmest ground the legality of the exercise of martial- law power by Congress in cases of great emergency. It has been said that they are squarely in the teeth of the supposed opinion of the Supreme Court in the celebrated case Ex parte Milligan. 3 That point is not here conceded; but if it were so, the decisions referred to are of a subsequent date and may be supposed to modify the majority views, in Ex 'parte Milligan, as to the exercise of martial-law power. 4 I. 5 Otto, p. 438. 2. iioU. S., 633. 3. 4 Wallace, 21; Hare, Consti- tutional Law, Vol. 2, p. 971. 4. Hare, Constitutional Law, Vol. 2, p. 970 et S''q. 42 MILITARY GOVERNMENT AND MAETIAL LAW. The reasoning of the Supreme Court in I/Uther v. Borden was cogent, and demonstrated the necessity of the exercise of martial law when the civil is dethroned. "The power," said the court, "is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State must determine what degree of force the crisis demands. And if the government deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force and the dec- laration of martial law, we see no ground upon which this court can question its authority."! The acts of Congress be- fore mentioned, and the decisions of the Supreme Court com- mending them in strongest terms, do but transfer the appli- cability of this language to the government of the Union and its legislature. If Congress has not the power to institute martial law, it probably has not authority to pass an indemnity bill covering acts taken under that law when enforced by the Executive Department; for it would be difficult to derive the indemnity power from any source from which the martial-law power would not equally flow. Yet the acts of Congress in question were in nature; and effect bills of indemnity; this fact the Supreme Court in numerous opinions emphasized, not in the language of disapprobation, but in eulogistic terms. "It would seem to be conceded," it has been remarked, "that the power to suspend the writ of habeas corpus and that of proclaiming martial law include one another. * * The right to exercise the one power implies i,he right to exercise the other." 2 In the Reconstruction Acts of 1867 Congress exercised the martial-law power. The authority was sustained by the Su- preme Court in a number of decisions. 3 In Texas v. White it I. 7 Howard, 45. 2. 9 Amer. Law Register, 507-8; Ex parte Field, 5 Blatchford, 82; Halleck, Chap. 15, Sec. 27; R. B. Curtis, "Executive Power," 1862. 3. 7 Wallace, 701; 13 Wallace, 646. INTRODUCTION. 43 was held that this was in pursuance of the duty imposed on the general government to guarantee to every State a republican form of government.! But in this discussion it matters not what the object was. The question here is not what objects Congress constitutionally may have in view by its legislation. We regard here only the means it makes use of to accomplish those objects. Martial law is never, under constitutional gov- ernments, its own end; like war, of which it may be a fore- runner or sequel, martial law is a. mean, an instrument for the attainment of some ulterior purpose essential to civil order. Regarded in this light, we have here properly to in- quire not what the Reconstruction Acts were intended to ac- complish, but the means adopted through these acts for the attainment of the end in view. Doing this, we see the military raised above the civil power, and so securely that the President even could not depose it. The sword took precedence of all else. Courts and legislatures waited the soldier's decree. If they acted, it was at his bidding or with his permission. This was martial law. We are not interested in words. If "martial law" sounds too harsh, call this rule of the sword something else. That, however, will not change the natiu-e of the fact. If not so termed, it scill remains martial law. 24. The Constitution gives to Congress power to declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water; to raise and support armies. Congress is authorized to make all laws necessary and proper to carry into eff^t the granted powers. The measures to be taken in carrying on war and to suppress in- surrection art; not enumerated. Thi* decision of all "^uch questions rests wholly with those to whom the stibstantial powers involved are confided by the Constitution. Moreover, it is a well-recognized principle not only that it is not indis- pensable that the existence of any power claimed can be found in the words of the Constitution, but it need not be clearly I. 7 Wallace, 708. 44 MILITAET GOVERNMENT AND MARTIAL LAW. and directly traceable to a particular one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers, expressly defined, or from all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. 1 Many substantive powers granted to Congress are not construed literally, and the government could not exist if they were. Thus the power to carry on war is con- ferred by the power to declare war. The auxiliary powers, those necessary and appropriate to the execution of other powers smgly described, are as certainly given as are the ex- press powers to which they are incident. They are not cat- alogued, no list of them is made, but they are grouped in the last clause of Section 8 of the ist Article, before cited, and granted in the same words in which all other powers are granted to Congress. 2 25. It remains only to consider whether martial law can be an appropriate war measure. If so, it may be invoked by that department to which is confided the power to provide means for successfully conducting hostilities. That it may be a proper war measure does not admit of doubt. We have not had a war in which, in one form or another, martial-law powers have not time and again been exercised, nor are we singular in this regard. All nations who are called upon either to repel invasion or suppress extensive rebellion have had a similar experience. Being thus an appropriate war power — an instrumentality which on proper occasions may be used for our own advantage and the discomfiture of the opposite party — ^tlie martial-law power must be possessed by the department of the govern- ment which not only declares war, but must provide the means for carrying it on — ^this, although on occasions of pressing necessity the power likewise may be assumed by the Bxecutive Department without previous legislative sanction. I. II Wallace, 506; 12 Wallace, 534. 2. 12 Wallace, 544. PART I. MILITAKY GOYERKMEKT. CHAPTER 1. Power to Declare War. I. Military Government is that which is established by a commander over occupied enemy territory. To entitle it to recognition it is necessary that the authority of the State to which the territory permanently belongs should have ceased there to be exercised. The establishment of military government is considered to be, primarily, for the advantage of the invader; but this is more in appearance than reality, arising from the circum- stance that the occupying army alone has the power at the time to maintain government of any kind; in fact, such gov- ernment is of most advantage to the inhabitants of the ter- ritory over which it is instituted. Without it they would be left a prey to the uncertain demands of a dominant military, which, without perhaps intending it and through mere want of system, might oppress them; with it, so long as they con- form to the will of their new rulers, they generally are left unmolested in ordinary domestic and business relations, and largely in municipal affairs. 2. The right of making war, of which military government h an incident, as well as that of HUlhorizing retaliations, re- 4,S 46 MILITAET GOVERNMENT AND MAHTIAL LAW. prisals, and other forcible means of settling international dis- putes, belongs to the supreme power in the State, i Of the absolute international rights of States, one of the most essential and important, and that which lies at the foun- dation of all the rest, is the right of self-preservation. It is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and im- portant which the State owes to them. This right necessarily involves all other incidental rights, which are essential as means to give effect to the principal end. 2 One of these, and that without which all others combiiied would be powerless to preser^'^e the social state, is the right to declare and carry on war. 3. War may originate in various ways. 3 A foreign fleet may attack oius in a remote sea. Several engagements oc- curred between our own ships and ihose of Frsnce in the latter part of the eighteenth c ;ntury; and but for the fact that other projects then occupied the ambitious Bonaparte, this would doubtless have resulted in war. A foreign power may send troops into our territory with hostile intent, without any formal declaration of war. The war of 18 12 was formally declared by act of Congress, as was that against Spain in 1898. Civil war may break out as either a servile war, like the Sepoy revolt of 1857-8, or a rebellion, as of the Colonies in 1775, and the rebellion of 1861, without any formal declaration. 4 In 1846 it was annonnced to the country by act of Congress that, by the act of the Republic of Mexico, war existed between that government and the United States. 5 But this was a mere formality. The act of Congress neither authorized nor legal- ized the war. That had been done long before by the contend- ing armies on the Rio Grande. Besides, many belligerent acts are resorted to sometimes which do not and scarcely are expected to lead to war. 6 1. Woolsey, Sec. 125. 2. Dana's Wheaton. p. 89, Sec. 61. 3. See Cobbett, p. 1 10 el seq., for illustrations. 4. Whiting, War Powers, loth ed., 38. 5. Act May 13, 1846. 6. See "Steps Short of War," Cobbett, p. 95 et seq. POWER TO DBOLABB WAH. 47 The insurrection in the Philippines against United States authority was regarded as a war by the National Govern- ment, but no declaration of war was issued. The Russo-Japanese war was not formally declared. It was announced by the Japanese navy attacking the Russian ships in the harbor of Port Arthur. 4. 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 bellig- erents claims sovereign rights as against the other. Insur- rection against a government may or may not culminate in an organized rebellion; but a civil war always begins by in- surrection against the lawful authority of the government. A civil war is never solemnly declared ; it becomes such by its accidents, the number, power, and organization of the persons who originate and carry it on. The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated: "When the regular course of jus- tice is interrupted by revolt, rebellion, or insurrection, so that the courts can not be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land."i 5. While the formal declaration of war can only be made by Congress, it becomes necessary sometimes to prosecute hostilities without such declaration. The President then must act, for the time being, at least, independently of Con- gress. The executive power is vested in the President. 2 When, therefore, the authorities of the Union are assailed, either by foreign foes, as on the Rio Grande in 1846, and in the Philippines in 1899, or by domestic ones, as in 1861, it is the duty of the President to repel force by force without waiting for any formal declaration of war. This military authority of the President is not incompatible with the war powers of Congress. Whether the President in fulfilling his duties as 1. Prize Cases, 2 Black, 666. 2. Sec. 3, Art. 2, Cpnstitution U. S. 48 MILITARY GOVERNMENT AND MARTIAL LAW. commander-in-chief in suppressing an insurrection has met with armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to insurgents the character of belligerents, is a question to be decided by him, and "This court," remarked the Supreme Court of the United States, "must be governed by the decisions and acts of the political department of the government to which the power was entrusted. The President must determine what degree of force the crisis demands."* 6. Nor is it necessary to the exercise of the war powers by the President in foreigo more than in civil war that there should be a preceding act of Congress declaring it. There are at least two parties to a war. It is a state of things, and not neces- sarily an act of legislative will. If a foreign power springs a war upon us by sea or land during a recess of Congress, exer- cising meanwhile all belligerent rights of capture, the question is, whether the President can. repel war with war, and make prisoners and prizes by the Army, Navy, and militia before Congress can meet, or whether that would be legal? In the case of the Mexican war there was, as has been seen, only a subsequent recognition of a state of war by Congress; yet all the prior acts of the President were lawful. It is enough to state the proposition. If it were not so, there would be no protection to the State. The question is not what would be the result of a conflict between the executive and legislature during an actual invasion by a foreign enemy, the legislature refusing to declare war. That is not a supposable case. But it is as to the power of the President, before Congress shall have acted, in case of a war actually existing. It is not as to the right of the President to initiate a war, as a voluntary act of sovereignty. That power is vested only in Congress. In case of civil war the President may, in the absence of any act of Congress on the subject, meet it by the exercise of belHgerent rights. The same rule governs if the attack comes from a foreign foe. I. 2 Black, 668. , , ~' POWER TO DBOLAEE WAB. 49 These principles have been settled by the Supreme Coxirt of the United States. They give stability to our institutions against the assaults of enemies from both without and within,. The country is not left helpless to receive the assaults of the enemy. The President meets the emergency alone until Congress can act. 7. The rule of constitutional construction by which powers expressly conferred carry with them by implication al) oth- ers necessary to render those conferred effective has already been adverted to. Constitutional authority is not given in vain. Hamilton said on this point: "The authorities es- sential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations and provide for their sup- port. These powers ought to exist without limitation, be- cause it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means necessary to satisfy them. The circumstances which endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. * * * This power ought to be under the direction of the same councils which are appointed to preside over the com- mon defense. * * * It must be admitted as a necessary consequence that there can be no limitation of that authority which is to provide for the protection and defense of the com munity in any matter essential to its efificacy — that is, in any matter essential to the formation, direction, and support of the national forces." 2 This proposition, he further says, rests on two axioms as simple as they are universal : first, the means ought to be proportionate to the ends; second, the persons from whose agency the attainment of the end is expected ought to possess the means by which it is to be attained. I. Prize Cases, 2 Black., 635; Texas t;. White, 7 Wallace, 700. 2. Fed eralist, 23, pp. 95-6. 4- 50 MILITARY GOVERNMENT AND MSETIAL LAW. Chief Justice Marshall, speakkig for the Supreme Court, has said: "The Government, then, of the United States can claim no powers which are not granted to it by the Consti- tution; and the powers actually granted must be such as are given either expressly or by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction according to the import of its terms; and where a power is expressly given in general terms it is not to be restrained to particular cases, unless that construction grow otit of the contract expressly, or by necessary implication, i Congress may employ such means and pass such laws as it may deem necessary to carry into execution the great powers granted by the Constitution; and necessary means, in the sense of the Conscitution, does not import an absolute physical ne- cessity, so strong that one can not exisi; without the other. It stands for any means calculated to produce the end. The word "necessary" admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely and indis- pensably necessary. The word is used in various senses, and in its construction the subject, the context, the ititention, are all to be taken into view. The powers of government are given for the welfaie of the nation. They were intended to endure for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should in all time execute its powers, and to con- fine the choice of means to such narrow limits es should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most imwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been foreseen dimly, and would deprive the legis- lature of the capacity to avail itself of experience, or to exercise its reason and accommodate its legislation to circumstances. If the end be legitimate and within the scope of the Constitu- tion, all means which are appropriate and plainly adapted to I. Martin^;. Hunter's Lessee, i Wheaton, 305. POWEK TO DEOLABE WAB. 5 1 this end, and which are not prohibited by the Constitution, are lawful." i Such are the views of some of the great expounders of the Constitution. That instrument was ordained and established by the people in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity. We should dis- credit the wisdom of those, who established the government to deny thac they bestowed upon the republic, created by and for themselves, the right, the duty, and the powers of self- preservation under any and all circumstances. 2 The common defense is provided for in the war powers of Congress and the President. This will be so while war remains the last argu- ment, not of kings only, but of nations as well. 8. One of the powers expressly given Congress is to pro- vide for the common defense and general welfare of the United States; 3 while the President is made commander-in-chief of the Army and Navy and of the militi? of the several States when called into actual service. 4 These powers, together with that of Congress to declare wir, to raise and support armies, complete the general war powers of the government. They may be exercised to execute the laws of the Union, suppress insurrcctinn, and repel invasions; and on military principles invasion may be repelled, as was illustrated by our experience in the war of 1812, the Mexican war, and the war with Spain, either by awaiting the enemy here or carrying hostilities into his own country. 9. Another power given Congress is co define and punish offenses against the law of nations, s thus giving that law ex- press constitutional recognition. The law of nations has been defined to be the rules of conduct regulating the intercourse of States. Hence without che express constHutional recogni- I. McCulloch V. Maryland, 4 Wheaton, 316. 2. Whiting, War Pow- ers, 10th Ed., p. 7. 3. Sec. 8, Art. 1, Constitution. 4. Sec. 2, Art. 2 Constitution. 5. Clause 9, Sec. 8, Art. i, Constitution 52 MILITARY GOVEBNMENT AND MAETIAL LAW. tion indicated, it would be binding on the government as one of the family of nations. It modifies the relations of independ- ent States in peace, and sets limits to their hostilities in war. When war breaks out, the rights, duties, and ^obligations of parties belligerent spring from and are measured by the laws of war, a branch of the law of nations. When war exists,. whatever is done in accordance with the laws of war is not regarded as arbitrary, but lawful, justifiable, and indispensable to public safety, i I. Bluntschli, i, Sec. 40. CHAPTER 11. Right to Establish Miutary Govbrnment. ID. The Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to insti- tute militsry governments, i 11. First — over conquered foreign territory. The erection of such governments over the persons and territory of a public enemy is an act of war; is in fact the exercise of hostilities without the use of unnecessary force. It derives its authority from the customs of war, and not the municipal law. 2 It is a mode of retaining a conquest, of exercising a supervision over an unfriendly population, and of subjecting malcontent non-combatants to the will of a superior force, so as to prevent them from engaging in hostil- ities, or inciting insurrections or breaches of the peace, or from giving aid and comfort to the enemy. Large numbers of per- sons may thus be held morally and physically in subjection to a comparatively small military force. Contributions may be levied, property be appropriated, commerce may be re- strained or forbidden, for the same reasons which would justify the repression of the open hostilities of the inhabitants by force of arms. 3 12. Those who institute or enforce military government should have a care to base their exercise of authority upon the certain ground of belligerent right or its necessary inci- dents. Military commanders, under these circumstances, should avoid the meshes of either constitu clonal or civil law; first, because such complications are unnecessary; second, because I. Ex parte MilUgsm, 4. Wallace, 142. 2. Maine, p 179 3. Wiiiting, loth Ed., 272. 53 54 MILITARY GOVERNMENT AND MARTIAL LAW. facilities for securing good advice on constitutional and legal matters generally are very poor amidst the clang of armies in the field. So long as military government lasts the will of the commander shoidd be the supreme law. Con- stitutional and civU lawyers have their day in court after civil law has been established. By following this simple and sound principle many military commanders and some Admin- istrations would have been saved a great deal of unnecessary trouble, i 13. The instituting military government in any country by the commander of a foreign army there is not only a bel- ligerent right, but often a duty. It is incidental to the stste of war, and appertains to the law of nations. "The rights of occupation," says Hall, "may be placed upon the broad foundation of simple military necessity." 2 The commander of the invading, occupying, or conquering army rules the country with supreme power, limited only by international law and the orders of his government. 3 For, by the law of nations, the occupatio bellica transfers the sovereign power of the enemy's country to the conqueror. 4 An army in the en- emy's country may do all things allowed by the rules of civil- ized warfare, and its officers and soldiers will be responsible only to their own government. 5 The same rule applies to our own territory permanently occupied by the enemy. Cas- tine, Maine, was occupied by the British September ist, 18 14, and retained by them until after the treaty of peace, Feb- ruary, 18 15. By this conquest and military occupation 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, for the time being, of course, suspended. 6 I. Magoon's Reports, p. 228; Neely ■:;. Henkel, 180 U. S. Reports;. 120; 23 Opinions Attorneys-General, p. 427. 2. Whiting, p. 430. 3. Hall, p. 430. 4. 8 Opinions Attorneys-General, p. 369. 5. Mitchell v. Clark, no U. S., 648; Coleman u Tennessee, 97 U. S., p. 517. 6. U. S. v. Rice, 4 Wheaton, 246. RIGHT TO ESTABLISH MILITARY GOVERNMENT. 55 14. As Commander-in-chief the President is authorized to direct the movements of the naval and military forces, and to employ them in the manner he may deem most effectual tO' harass, conquer, and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. When Tamgico, Mexico, had been cap- tured and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession con- tinued, as the territory of the United States and respect it as such. For, by the laws and usages of nations, conquest gives a valid title while the victor maintains the exclusive posses- sion of the conquered country. The power of the President, under which this conquest was made, was that of a military commander prosecuting a war waged against a public enemy by the authority of his government. 1 15. Upon the acquisition, in the year 1846, by the arms of the United States of the Territory of New Mexico, the officer holding possession for the United States, by virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained under the sanction and authority of the President a provisional or temporary government for the country. 2 Nor does it signify what name is given a govern- ment established by arms. Its essence is military; it is a government of force. In Cross v. Harrison the Supreme Court of the United States, first calling attention to the fact that California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846; that shortly afterwards the United States had military possession of all of Upper California; that early in 1847 the President, as consti- tutional commander-in-chief of the Army and Navy, author- ized the military and naval commanders there to exercise the belligerent right of a conqueror, to form a civil government for the conquered country, and to impose duties on imports I. Flemming v. Page, 9 Howard, 615; American Insurance Co. v Canter, i Peters, 542 2. Leitensdorfer v. Webb, 20 Howard, 177. 56 MILITARY GOVERNMENT AND MARTIAL LAW. and tonnage as military contributions for the support of the government and of the army which had the conquest in pos- session ; observed as to this that no one could doubt that these orders of the President, and the action of our army and navy commanders in California in conformity with them, were ac- cording to the law of arms fend the right of conquest, i The governments thus established in New Mexico and Cali- fornia were indeed styled "civil"; but they were in fact mil- itary. The milder name was a matter of state policy. The government of the United States had resolved to wrest those Territories from Mexico and annex them to the Federal domain. By the use of gentle terms the inhabitants were to be concil- iated, the weight of the mailed hand rendered seemingly less oppressive, though its grasp was never relaxed. 16. The rulings of State courts are to the same effect. The Supreme Court of Tennessee, in Rutledge v. Fogg, 2 remarked that ordinarily the right of one belligerent nation to occupy and govern territory of the other while in its military posses- sion is one of the incidents of the war and flows directly from the fact of conquest ; that the authority for this is derived di- rectly from the laws of war, as established by the usage of the world, confirmed by the writings of publicists and the decisions of courts; and that the constitution of political institutions of the conqueror are not, therefore, looked to directly for au- thority to establish a government for the territory of the enemy in liis possession during his military occupation. 1l is a powc that appertains to the fact of adverse military posses- sion. On this ground that tribunal upheld the decisions of the military commissions convened at Memphis, Tennessee, in i8e3, by the commanding general of the Union forces. 3 17 Title by conquest is acquired end maintained by force of arms. The conqueror prescribes its limits. Humanity, however, scting on public opinion, has established, as a gen- eral rule, that the conquered shall not be wantonly oppressed, I. 16 Howard, 190. 2. 3 Coldwell, 554. 3. Hefferman v. Porter, 6 Coldwell, 391 ; Isbell v. Karris, 5 Coldwell, 426 EIGHT TO ESTABLISH MILITARY GOVERNMENT. 57 and that their condition shall remain as eligible as is compat- ible with the objects of the conquest, i When in the House of Commons, May, 1851, it was said that martial law had been established by the British com- mander in 1 8 14 in the south of France, military government, and not martial law, in the sense we use it, was meant. And so of the remarks of the Duke of Wellington, the commander referred to, in the House of Lords, April i, 185 1, in the debate on the Ceylon rebellion, when he said: " I contend that martial law is neither more nor less than the will of the general who commands the army. In fact, martial law means no law at all. Therefore, the general who declares it, and commands that it be carried into execution, is bound to lay down distinctly the rules and regulations and limits according to which his will is to be carried out." Plainly what the Duke of Wellington here referred to was not martial law as a domestic fact, and as the term is used in this treatise; he was speaking of his conduct in foreign terri- tory, and the methods there pursued to establish and enforce the rule of the conqueror. 1 8. In Thorington v. Smith the Supreme Co^rt of the United States, adverting to the fact that military govern- ments were classed by publicists as de facto, observed that they more properly might be denominated governmencs of para- mount force. Their characteristics were said to be (i) that their existence is maintained by active military power, and (2) that while they exist they muse necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become respon- sible, as wrong-doers, for these acts, though not warranted by che laws of the rightful government; that actual govern- ments of this sort are established over districts differing greatly in extent and conditions ; and that they are usually adminis- tered directly by military authority, but they may be admin- I. Johnson v. Mcintosh, 8 Wallace, 589 58 MILITARY GOVERNMENT AND MARTIAL LAW. istered, also, by civil authority, supported more or less directly by military force, i By "rightful governmitiL" is here meant that to which the permanent allegiance of the people is due. Such, then, is the authority, under the laws of war and the war powers of the government, for the establishment of mil- itary governments without the boundaries ot the United States. 19. Second — within districts occupied by rebels treated as belligerents. The constitutional power to establish such governments within States or districts occupied by rebels treated as bel- ligerents is as clear as the right to so govern foreign territory. The experience of the Civil War of 1861-5 frequently, indeed constantly, furnished illustrations of this branch of military government. The object of the national government in that contest was neither conquest nor subjugation, but the overthrow of the insurgent organization, the suppression of insurrection, and the re-establishment of legidmate authority. In the attain- ment of these ends it became the duty of the Federal author- ities whenever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the national forces, to provide as far as possible, so long as the war continued, for the security of persons and property and for the administration of justice. The duty of the National Government, in this respect, was no other than that which, as just shown, devolves upon the government of a regular belligerent occup5dng, during war, the territory of another independent belligerent. It was a military duty, to be performed by the President as commander-in-chief, and entrusted as such with the direction of the military force by which the occupation was held. 2 So long as the war contin- ued it can not be denied that the President might institute temporary governments within insurgent districts occupied by I. 8 Wallace, 9. 2. Grapeshot, 9 Wallace, 132. RIGHT TO ESTABLISH MILITARY GOVERNMENT. 59 the national forces, i In carr5dng them into effect he acted through his duly constituted subordinates. Although that war was not between independent nations, but between fac- tions of the same nation, yet, having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerents, the doctrine of inter- national law regarding the military occupation of enemy's country was held to apply. 20. The character of government to be established over conquered territory depends entirely upon the laws of the dominant power, or the orders of the military commander. 2 Against the persons and property of rebels to whom belliger- ent rights have been conceded, the President may adopt any measures authorized by the laws of war, unless Congress oth- erwise determines. The protection of loyal citizens and their property located within the rebellious district is not a right which they can demand, but entirely a matter of expediency. 21. From the day that the military authorities obtained a firm foothold in the Philippine Islands, which may be con- sidered as the 13th of August, 1898, when Manila was captured, the executive power unaided ruled the archipelago for up- wards of two years. By act of March 2d, 1901, Congress lent the aid of its assistance. On the 4th of July, 1901, the plainly military gave way to the civil rule as announced, but the gov- ernment in its essence remained a politico-military one, and, though styled civil, was upheld only by force of arms — in lesser degree, of the constabulary; in greater degree, of the nation. 22. It is well settled that where the rebels are conceded belligerent rights a civil domestic war will, during its contin- uance, confer all the rights and be attended by all the inci- dents of a contest between independent nations. One object of military government is to render the hold of the conqueror secure and enable him to set the seal on his success, and it I. Texas V. White, 7 Wallace, 730. 2. Coleman v. Tennessee, 97 U. S., 517- 6o MILITARY GOVERNMENT AND MARTIAL LAW. must, therefore, in common with every other recognized means of war, be at the command of a legitimate government en- deavoring to subdue an insurrection. As the army advances into the rebellious territory, a hostile may be replaced by a loyal magistracy, and a provisional government established to preserve order and administer justice until the courts can be reopened on the return of peace. It is true that as such a war is not prosecuted with a view to conquest, but to restore the normal condition wliich the rebellion interrupts, the right to employ force for the purpose indicated might be thought to cease with the suppression of the rebellion. It must still, however, be in the discredon of the legitimate government, if successful, to determine when the war is at an end; also whether the insurgents are sincere in their submission or in- tend to renew the contest at the first favorable opportunity, and while this uncertainty continues military government and occupation may be prolonged on the groimd of necessity, i 23. As was remarked by the Supreme Court of the United States in Horn v. Lockhart, 2 "The existence of a state of in- surrection and war does not loosen the bonds of society or do away with civil government, or the regular administration of the laws. Order must be preserved, police regulations main- tained, crime prosecuted, property protected, contracts en- forced, marriages celebrated, estates settled, and the trans- fer and descent of property regulated precisely as in time of peace." These considerations led to the recognition as valid of those judicial and legislative acts in the insurrectionary States touching the enumerated and kindred subjects, where they were not hostile in purpose or mode of enforcement to the authority of the National Government, or did not impair contracts entered into under the Federal Constitution. This being true of insurrectionary districts, however far removed from the scene of contest, so much the more necessary is it, when armies have overrun the country, that some govern- I. Hare's American Constitutional Law, Vol. II., p. 949. 2. 17 Wal- lace, 580. RIGHT TO ESXABLISH MILITARY GOVERNMENT. 6 1 ment be instituted to protect life and property and preserve society. And as the military power alone is competent to do this, the government so established must of necessity be military government. It is of little consequence whether it be called by that name. Its character is the same whatever it may be called. Its source of authority is the same in any case. It is imposed by the conqueror as a belligerent right, and, in so far as the inhabitants of said territory or the rest of the world are con- cerned, the laws of war alone determine the legality or other- wise of acts done under its authority. But the conquering State may of its own will, and independently of any provis- ions in either its constitution or laws, impose restrictions or confer privileges upon the inhabitants of the rebellious ter- ritory so occupied which are not recognized by the laws of war. If the government of military occupation disregard these, it is accountable to the dominant government only whose agent it is, and not to the rest of the world. 24. No proclamation on the part of the victorious com- mander is necessary to the lawful inauguration and enforce- ment of military government. That government results from the fact that the former sovereignty is ousted, and the op- posing army now has control, i Yet the issuing such proc- lamation is useful as publishing to all living in the district occupied those rules of conduct which will govern the con- queror in the exercise of his authority. Wellington, indeed, as previously mentioned, said that the commander is bound to lay down distinctly the rules according to which his will is to be carried out. But the laws of war do not imperatively require this, and in very many instances it is not done. When it is not, the mere fact that the country is militarily occupied by the enemy is deemed sufficient notification to all con- cerned that the regular has been supplanted by a military government. In oiu: own experience the practice has widely I . Instructions for Armies in the Field, G. O. 100, A. G. O., 1863. 62 MILITARY GOVERNMENT AND MARTIAL LAW. dififered. Neither at Castine, Maine, in 1814, by the British, nor at Tampico, Mexico, in 1840, or in numerous cases during the Civil War when territory was wrested from the enemy, was any proclamation issued; while in other cases, as New Mexico in 1846, California in 1847, and New Orleans in 1862, proclamations were formally promulgated, announcing the principles by which the country would be governed while subject to military rule. These proclamations may become very important, because, if approved by the government of the commanders making them, they assume in equity and perhaps in law the scope and force of contracts between the government and that people to whom they are addressed, and who in good faith accept and observe their terms. Thus when New Orleans was captured in 1862, the Federal commander, in his proclamation dated May ist and published May 6th, that year, announced among other things that "all the rights of property of whatever kind will be held inviolate, subject only to the laws of the United States." The Supreme Court afterwards held that this was a pledge, binding the faith of the government, and that no subsequent commander had a right to seize private property within the district over which the proclamation extended as booty of war; consequently, that an order issued by a sub- sequent Federal commander in August, 1863, while the mili- tary occupation continued, requiring the banks of New Or- leans to pay over to the quartermaster all moneys standing on their books to the credit of any corporation, association, or government in hostility to the United States, or person be- ing an enemy of the United States, was illegal and void. 1 25. New Mexico was not only conquered, but remained theireafter under the dominion of the United States. The provisional government established therein ordained laws and adopted a judicial system suited to the needs of the coun- try. The Supreme Court of the United States held that these I. 16 Wallace, 483. RIGHT TO ESTABLISH MILITARY GOTEENMENT. 63 laws and this system legally might remain in force after the termination of the war and until modified either by the direct legislation of Congress or by the territorial government estab- lished by its authority, i We have had the same experiences in Cuba, Porto Rico, and the Philippines. I. Leitensdorfer v. Webb, 20 Howard, 186. CHAPTER III. Temporary Allegiance of Inhabitants. 26. It has been observed, and the observation has the sanction of numerous expressions emanating from the Supreme Court, that those who quietly remain in the occupied district, transacting their ordinary business, should receive the care of, and they owe temporary allegiance to, the government estab- lished over them. 1 Allegiance is a duty owing by citizens to their government, of which, so long as they enjoy its benefits, they can not divest themselves. It is the obligation they incur for the protection afforded them. It varies with, and is meas- ured by, the character of that protection. That allegiance and protection are reciprocal obligations binding mutually upon citizens and the government is the fundamental principle upon which society rests. Under military government this allegiance is said to be temporary only. It is not wholly different in kind, but in degree falls far short of that owing by native-born or natm-al- ized subjects to their permanent government. 2 A considera- tion of the character of military as contradistinguished from regular governments will show that this distinction rests upon a proper basis. The consent of the people is the foundation- stone of governments having even a semblance of permanency. This is theoretically true at least, and generally is so prac- tically. The proposition rests on observed facts, otherwise revolution would follow revolution and there could be no stability; but this in the more firmly established States we know is contrary to experience. Moreover, should the fac- I. 8 Wallace, 10; 4 Wheaton, 253; 9 Howard, 615; see also Blunt- schli, I., Sees. 35, 36a, 42, 64. 2. Blackstone, I., pp. 370-71 ; Hale, Pleas of the Crown, I., p. 68; Kent, II., p. 49. 61 TEMPORARY ALLEGIANCE OF INHABITANTS. 65 tions, exhausted by internal discord, erect at last a regular government, it would be done only with the consent of the people. 27. The Declaration of the Independence of the United States laid it down as a political maxim that governments derived their just powers from the governed, and that it is the right of a people to alter or abolish their form of govern- ment and institute a new one, laying its foundations in such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. This doctrine, however, is no more applicable in the United States than elsewhere. The history of the world illustrates at once its antiquity and universality. When a people have become tired of their government, it has been their custom to change it. And while many governments have been built and perpetuated on force and fraud perhaps, yet even these may be considered as resting upon the tacit consent or acqui- escence of the governed. Society can not exist without gov- ernment, which is necessary to preserve and keep that society in order. To be effective it must be entrusted with supreme authority. This is necessary, not for the gratification of those who may be entrusted with the reins of power, but for the safety of that society, for the protection and preservation of which government is instituted. "And," says Blackstone, "this authority is placed in those hands wherein (according to the opinions of the founders of States, either expressly given or collected from their tacit approbation), the qualities requisite for supreihacy, wisdom, goodness, and power are the most likely to be found." i 28. As government is based on the necessities of society, affording the only practicable means by which the rights of its meinbers may be secured and their wrongs redressed, its for- mation is regarded as the highest privilege and most important work of man. When formed — when, after the long, proba- I. Book I., 49. 5- 66 MILITAET GOVEENMENT AND MARTIAL LAW. tionary, changeftil periods which usually precede the accom- plished fact, governments have been instituted — they have ever been regarded as worthy the reverence, the homage, and loyal support of those for whose benefit they were brought into existence. 29. From the earliest records of established governments it has been held che first duty of those who received their protection to support and defend them. Those who rebel against their authority are regarded as deserving severest punishment. These are universal principles, based on the instincts of rational beings and the experience of mankind. Having established government, having performed that su- preme act, mankind have uniformly insisted that, so long as it performed its proper functions, those subjected to its au- thority and who enjoy its benefits are bound, if need be, to support it to the utmost of their ability. Any other prin- ciple would sanction revolution, with its attendant misery, upon the slightest pretext ; an experience characteristic, not of States which have proved to be the blessings, but the curse of mankind. Considerations like these, based upon human nature, and the demands of society, have unalterably estab- lished the principle thee allegiance and protection are recipro- cal duties as between subject and government. 30. In a modified degree these principles are applicable to military government, and this leads to corresponding mod- ifications of the allegiance of the subject. And first, let it be observed, that consent of the people freely given, so far from being the basis on which military government is founded, the very opposite is true. It is the rule of force imposed on subjects by paramount military power. That primary ele- ment of stability — a confidence grounded in the mutual in- terests of the people and their rulers self-imposed for the benefit of all — is here wanting. Yet it is the modern practice for the government of military occupation to protect the peo- ple in their rights of persons and property. When this is not done, it is because the success of military measures renders TEMPORARY ALLEGIANCE OP INHABITANTS. 67 such a course unadvisable. Here, as elsewhere, it is found to be for the best interests of all concerned to cultivate a feeling of good-will between rulers and subjects. I 31- By the English law it is high treason to compass or I imagine the death of the king, his lady the queen, or their Widest son and heir, i The king here intended is the king in possession, without regard to his title. "For," says Black- stone, "it is held that a king de facto and not de jure, or, in ocher words, a usurper that hath got possession of the throne, is a king within the meaning of the statute, as there is a tem- porary allegiance due to him for his administration of the gov- ernment and temporary protection of the public." 2 And so far was this principle carried that, though Parliament had declared the line of Lancaster to be usiu-pers, still, treasons committed against Henry VI. were punished under Edward IV. By a subsequent statute all persons who, in defense of the king for the time being, wsge war against those who en- deavor to subvert his authority by force of arms, though the latter may be aiding the lawful monarch, are relieved from penalties for treason. 3 This is declaratory of the common law. 4 Being in possession, allegiance is due to the usurper as king de facto. 5 To this height has the duty of allegiance to de facto government been carried by the English law. An- other illustration, differing in its incidents, yet based on the same principle, is found in the government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as protector. It was indeed held otherwise by the judges by whom Sir Henry Vane was tried for treason in the year following the restoration. "But," as has been justly remarked, "such a judgment, in such a time, has little au^- thority." The principle here involved, and which is equally applicable to both regular and temporary governments, is the simple one I. 25 Edward III. (y. 1352), Ch. 2. 2. Commentaries, IV., p. 77 3. II. Henry VII., Ch. i. 4. 4 Blackstone, Commentaries, 77. 5. Thor- ington, V. Smith, 8 Wallace, 8; 4'Blackstone, Commentaries 78. 68 MILITAET GOVERNMENT AND MAETIAL LAW. of mutuality ci allegiance and protection. In this regard mili+ary government is on the same foofing with any other. To the extent that it assumes and discharges these obligations of a regular government, it is entitled to the obedience of those who are recipients of its bounty. But as military government is at best but transient, the allegiance due to it is correspond- ingly temporary. It becomes complete only on the confirma- tion of the conquest with the consent, express or implied, of the displaced government. 32. Under the modern rules of warfare between civilized nations, this temporary transfer of allegiance carries in a qual- ified manner the reciprocal rights and duties of government and subject respectively. If, after military government is set up over them, the people attempt to leave the district to join the enemy, they will be repressed with utmosc vigor. This transfer of allegiance takes place only to the extent mentioned, and operates only on those who at the time come actually under the new dominion. Mere paper government is not a valid one. To be so it must be capable of enforcing its decrees. And this will be only as by gradual conquest the victor extends the supremacy of his arms. Hence the untenableness of the proposition that the Span- ish sovereignty was ousted from the Philippine Archipelago, and that of the United States extended over it, by the capture alone of the capital and commercial emporium, Manila. The change of temporary allegiance extended no further than effectually could be maintained by the arms of the invader: the permanent change did not take place until the ratification of the treaty of peace. 1 I. 182 U. S. Reports, p. i et seq." Note. — Mr. Hall dissents from the view that military go-vermhent gi\es rise to the duty of temporary allegiance on the part of the people over which it is instituted. He maintains that "the only understanding which can fairly be said to be recognized on both sides amounts to an en- gageiitient on the part of the invader to treat the inhabitants of occupied territory in a milder manner than is in strictness authorized by law, on TEMPOEAEY ALLEGIANCE OP INHABITANTS. 69 the condition that, and so long as, they obey the commands which he imposes under the guidance of custom." He remarks that recent writers adopt the view that the acts which are permitted to a belligerent in occu- pied territory are merely incidents of hostilities; that the authority which he exercises is a form of the stress which he puts upon his enemy; that ^the rights of the expelled sovereign remain intact; and that the legal \relations of the population toward the invader are unchanged. (Inter^ national Law, p. 429.) « I The learned writer in this connection calls attention to the significant ^ct that the larger powers do not accede to this doctrine, though the smaller States of the Continent unanimously support it. No circumstance could more effectually impair its binding efficacy. The large, powerful States, not the insignificant ones, determine the customs of war. The exception here taken to the theory of temporary allegiance as in- dicating the relation of the inhabitants to military government, and which the language of numerous judicial decisions justifies, seems to indicate only disagreement regarding the correct use of words descriptive of that relation. The condition is one of fact. The conqueror, not the van- quished, is dictating terms. His extreme rights under the customs of war are very severe. That Mr. Hall acknowledges. Every great war of even the last quarter of a century, to say nothing of former ones, has furnished numberless instances of this. Until recently this enforcement of extreme rights was the rule. Now, as a condition running pari passu with the abatement on the part of the conqueror from his extreme rights under the customs of war, the people of the country impliedly covenant that they will not pursue a line of conduct or ent« into miUtary com- binations prejudicial to the military interest of the conqueror whose forbearance they accept. Call this implied covenant, prayed for by the conquered and their interested advocates, "temporary allegiance,' "mutual engagements," or what not, the name does not change the fact. As for the proposition that the rights of the deposed sovereign remain intact over people and territory subjected to miUtary government, it can, as before pointed out, only work harm to such of them as, through a feeling of loyalty, may be led to obey his injunctions. The conqueror of course treats such pronunciamentos with contempt, and simply punishes the spirited, perhaps, but misguided people who are rash enough to sacdfice themselves for a sovereignty which can only issue orders without power to enforce its mandates, or save harmless those who heed them. Dr. Bluntschli takes, and correctly, the opposite view from Mr.Hall. See Laws of War, I., Sees. 30, 31, 89 (2). CHAPTER IV. Territorial Extent. 33. Though it is a legitimate use of military power to se- cure undisturbed the possession of that which has been ac- quired by arms, yet it is cifficult, by aid of any moderate number of troops, to guard and oversee an extended con- quered territory; and it is practically impossible for any army to hold and occupy all parts of it at the same moment. There- fore, if the inhabitants are to be permitted to remain in their domiciles unmolested, some mode must be adopted of con- trolling their movements, and of preventing their committing acts of hostility against the dominant power, or of violence against each other. The disorganization resulting from civil- war requires, more than that following from any other, those restraints which the dominant military alone can impose. In countries torn by intestine commotions neighbors become enemies, all forms of lawless violence are but too apt to be common, and in the absence of military rule would be unre- strained. Hence, to ensure qaiet within rebellious districts when reduced into control during a civil war, it becomes all the more necessary to establish there a rigorous government, that life and property may be rendered secure and crime be either prevented or promptly punished. Firm possession of a conquered province can be held only by establishing a gov- ernment which shall control the inhabitants thereof. 1 And that there exists in the Opinion of the Supreme Court of the United States no distinction as to the rights in this regard of the conqueror, whether the subjugated territory be foreign or that of rebels treated as belligerents, clearly appears'from the language in the case of Tj'ler 7;. Defrees. "We do not be- 1. Whiting, loth Ed., p. 262, 70 , \ TERRITORIAL EXTENT. 7I \ \ lieve," said the court in that case, "that the Congress of the \ United States, to which is confided all the great powers essential \to a perpetual union, the power to make war, to suppress in- surrection, to levy taxes, to make rules concerning captures on land and sea, is deprived of these powers when the necessity for their exercise is called out by domestic insurrection and internal civil war ; when States, forgetting their constitutional obligations, make war against the nation, and confederate together for its destruction."! ! 34. The question. What legally, under the customs of war, shall constitute "military occupation"? was one of the im- portant matters which the conference at Brussels in 1874 tried, but failed to decide. The conference concluded that "a. territory is considered as occupied when it finds itself placed in fact under the author- ity of the hostile army. The occupation extends only to ter- ritory where this authority is established and in condition to be exercised." The German view of occupation was that it did not always manifest itself by exterior signs, like a place blockaded; that, for instance, a town in the conquered dia trict left without troops ought nervertheless to be considered as occupied, and all risings there should be severely repressed. The English took a different view of the subject — ^that government holding, in brief, that, to be militarily occupied, a. territory should be held firmly in the conqueror's grasp, and that if "he did not keep a military force ac any particular point, the people living there were under no obligations to remain quiet, but properly might rise against the occupying power without incurring the penalties meted out to insurgents. It is plain that the latter (English) view would favor ris- ings of the people en masse to strike at the occupying power; a right for which that government strenuously contends. It is naturally the contention of a power having a comparatively small standing army, and whose policy it is to encourage so- I. II Wallace, 331, 345. 72 MILITARY GOVERNMENT AMD MARTIAL LAW. called patriotic risings of the people, to make headway against the invader. The German view, on the contrary, is favorable to the government with a large regular army. According to this idea of "military occupation," risings of the people are proscribed even if no enemy be present to keep them in sub- jection, the army having just passed through on its career of conquest. The foundation for this theory maintained by such a people is not difficult to understand: if the enemy have but a small regular force, and it can be made outlawry for the people to rise against the authority of even an absent foe, that enemy will not contend long against a large standing army which not only fights its antagonist in front, but con- structively controls enemy territory that it has only traversed. This is a constructive occupation, something like the con- structive blockades of the beginning of the century. The truth i^iust be that a territory is militarily occupied when the invader dominates it co the exclusion of the former and regular government. The true test is exclusive possession, i Such was the rule established by the Hague Peace Con- ference, July 29, 1899, to which the United States was a party. Under Article XLII., Section 3, military occupation is lim- ited to the district over which its authority can be asserted. 2 During the Russo-Japanese war the Russian commander gave this a broad construction in Manchturia in favor of the Czar's authority. 35. A determination of the time when military government becomes operative is important. 3 As the military dominion rests on force alone, it will receive recognition only from the time when, the original governmental authorities having been expelled, the commander of the occupying army is able to cause his authorit}' to be respected. No presumptions exist in favor of a change from old to new government. What- ever rights are claimed for the latter must be clearly shown to belong to it. I. Woolsey, Sec. 142; Maine, p. 178; Manual, p. 314. 2. See Ap. pendix II. 3. American Instructions, Sec i clause 1. TEKKITOEIAL EXTENT. 73 When New Orleans was captured in 1862, the Federal general issued a proclamation announcing the fact of occupa- tion, and setting forth the administrative principles which would regulate the United States authorities in governing the district occupied and the rules of conduct to be observed by the people. The Supreme Court of the United States, referring to this, said: "We think the military occupation of the city of New Orleans may be considered as substan- tially complete from the date of this publication; and that all the rights and obligations resulting from such occupation, or from the terms of the proclamation, may be properly regarded as existing from that time."i Firm possession of enemy's country in war suspends his power and right to exercise sov- ereignty over the occupied place, and gives those rights, tem- porarily at least, to the conqueror; rights which all nations recognize and to which all loyal citizens may submit. 2 36. Acts of Congress cake effect from date of signature unless there be something in their terms to modify the rule. In contemplation of law those are the dates of promulgation to persons interested, and rights accruing under them vest accordingly. The general rule is that retroactive construction is never favored. 3 The same principles apply when a con- queror announces by proclamation his assumption of the reigns of government; observing that, if the dates of signing and promulgation differ, the latter governs. And this is reason- able because, as this announcement on the part of the con- queror under the strict laws of war is unnecessary — ^the mere fact of occupation serving on the people sufficient notice that the will of the conqueror is for the time their law 4 — a procla- mation setting forth in terms what that will is gives rise to mutual rights and obligations as between the conqueror and the conquered; and therefore the date of promulgation which I. The Venice, 2 Wallace, 276. 2. Dana's Wheaton, Sec. 337, note 162; Manning, pp. 182-83. 3. Sedgwick, Construction of Statutory and Constitutional Law, p. 164. 4. U. S. Instructions for Armies in the Field, ■Sec. I, clause i 74 MILITARY GOVERNMENT AND MAETIAL LAW. makes that will known is properly taken as the point of time from which rights vest and obligations are incurred. 37. "The port of Tampico," said the Supreme Court of the United States in Fleming v. Page, referring to the estab- lishment of military government in Mexico, "and the Mexican State of Tamaulipas, in which it is situated, were subject to the sovereignty and dominion of the United States. The Mexican authorities had been driven out, or had subftiitted to our army and navy, and the country was in the firm and exclusive possession of the United States and governed by its military authorities, acting under the orders of the Presi- dent." The criterion of conquest here announced is the driving out enemy authorities, or their submission to the dominant power. It is a proper test and must receive a reasonable construction. Its meaning is that from the in- stant the authorities surrender to the invader the duty of pro- tecting the people in their rights of person and property, the allegiance of the latter is temporarily transferred from, their former to their new rulers. 38. The territorial extent of military government can not be greater than that of conquest, and generally will be coin- cident with it. Its basis being overpowering force, its ability to exercise that force pnd the extent to which that ability is recognized by the people of the distiict occupied determine the limits of its audiority. 1 The conqueror can not demand that temporary transfer of allegiance which is one feature of military government, unless, in return therefor, he can and does protect the people throughout the occupied district in those rights of person and property which it is binding on tovernment to secure to them. 39. Unless confirmed by treaty, such acquisitions are not considered permanent. Yet for every commercial and bel- ligerent purpose they are considered as part of the domain 1. Maine, p. 178. TERRITORIAL EXTENT. 75 of the conqueror so long as ne le^anis the possession and government, i 40. The fifth section of the Act of July 13, 1861,2 for the collection of duties and other purposes, looking to the sup- pression of the then existing rebellion, provided that, under certain conditions, the President, by proclamation, might de- clare the inhabitants of a State or any section or part thereof to be in a state of insurrection against the United States. In pursuance of this act the President, on the i6th of August following, issued a proclamation declaring the inhabitants of certain States, excepting designated districts, as well as those "from time to time occupied and controlled by forces of the United States engaged in dispersing the insurgents," to be in a condition of rebellion. Referring to these measures, the Supreme Court of the United States said: "This leg- islative and executive action related, indeed, mainly to trade and intercourse between the inhabitants of loyal and the in- habitants of insurgent parts of the country; but, by excepting districts occupied and controlled by national troops from the general prohibition of trade, it indicated the policy of the Government not to regard such districts as in actual insur- rection, or their inhabitants as subject, in most respects, to treatment as enemies. Military occupation and control, to work this exception, must be actual; that is to say, not illuso- ry, not imperfect, not transient; but substantial, complete, and permanent. Being such, it draws after it the full measure of protection to person and property consistent with a nec- essary subjection to military government. It does not, in- deed, restore peace, or, in all respects, former relations; but it replaces rebel by nation?l authority, and recognizes, to some extent, the conditions and responsibilities of national citi- zenship." 3 1. 9 Cranch, 195; Amer. Ins. Co. v. Canter, 1 Peters, 542. 2. 12 Statutes at Large, 257. 3. 2 Wallace, 277 76 MILITARY GOVERNMENT AND MARTIAL LAW. 41. The case here considered was one of government dealing with rebellious subjects; but it clearly sets forth the general principles of military government, under the rules of mod- ern war, when control has become substantial, complete, if not permanent. The inhabitants pass under the government of the conqueror, and are bound by such laws, and such only, as it chooses to recognize and impose. 1 42. In this connection the remarks of Chancellor Kent, when treating of the obligations arising out of blockades, are interesting: "A blockade must be existing in point of fact; and in order to constitute that existence, there must be a power present to enforce it. All decrees and orders declaring extensive coasts and whole countries in a state of blockade, without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law." 2 These remarks are equally applicable to mil- itary occupation of enemy country. To extend the rights of such occupation by mere intention, implication, or proclama- tion, without the military power to enforce it, would be estab- lishing a paper conquest infinitely more objectionable in its character and effects than a paper blockade. The occupa- tion, however, of part by right of conquest, with intent and power to appropriate the whole, gives possession of the whole, if the enemy maintain military possession of no portion of the residue. But if any part hold out, so much only is pos- sessed as is actually conquered. Forcible possession extends only so far as there is an absence of resistance. 43. It must not be inferred from what has just been said that the conqueror can have no control or government of hostile territory unless he actually occupies it with an armed force. It is deemed sufficient if it submits to him and recog- nizes his authority as conqueror; for conquests are, indeed, in this way extended over the territory of an enemy without actual occupation by an armed force. But so much of such I CJ. S. V. Rice, 4 Wheaton, 253. 2. Vol. i, p. 144. TEEniTOKIAL EXTENT. 77 territory as refuses to submit or to recognize the authority of the conqueror, and is not forcibly occupied by him, can not be regarded as under his conixol or within the limits of his conquest; and he therefore can not pretend to govern it or to claim the temporary allegiance of its inhabitants, or in any way to divert or restrict its intercourse with neutrals. It remains as the territory of its former sovereign, hostile to the would-be conqueror as a belligerent and friendly to others as neutrals. The government of the conqueror being de facto and not de jure in character,! it must always rest upon the fact of possession, which is adverse to the former sovereign, and therefore can never be inferred or presumed. Not only must the possession be actually acquired, but it must be main- tained. The moment possession is lost the rights of military occupation are also lost. By the laws and usages of nations conquest is a valid title only while the victor maintains the exclusive possession of the conquered country. 2 44. The fundamental rule that to render military govern- ment legal there must be an armed force in the territory oc- cupied capable of enforcing its "adverse possession" against all disputants seems to be stricter even than the corresponding rule with reference to blockade, concerning which it is held that a temporary absence of the squadron under certain cir- cumstances will not impair its validity. "The occasional absence of the blockading squadron produced by accident, as in the case of a storm, and when the station is resumed with due diligence, does not suspend the blockade, provided the suspension and the reason of it be known; and the law considers an attempt to take advantage of such an accidental removal as an attempt to break the blockade, and s mere fraud." 3 45. There is no instance in history of a more complete and signal failure of a scheme to appropriate the sovereignty of a I. 8 Wallace, 10. 2 Halleck, Chap. 32, Sec. 3; 9 Howard, 615. 3. Kent Vol. i, p. 145 78 MILITARY GOVERNMENT AND MARTIAL LAW. proud people than that of Napoleon I. when he placed the crown of Spain upon his brother's brow in 1808. The Spanish people repudiated the measiure en masse, and no sacrifice seemed to be too great in manifesting their displeasure. The incidents of the ensuing war show how really formidable guer- rilla tactics may become when properly utilized against the best of troops. When the people are devoted to the cause, willing at all hazards to do and die for it, this species of warfare under leaders adapted to it becomes formidable. 46. While military government can legally extend so far only as the enemy actually or impliedly surrenders control of the country, it is sufficient to that legality that there has been in fact such abandonment of jurisdiction by the expelled State, and an assumption of authority by the conqueror. If consid- erations of policy intervene, he or his government determines upon them. To render military government effective, the occupation musl, indeed, be substantial and complete, but it need not be permanent. In the exigencies of war the latter could not be a condition precedent to its legality, because the deposed authorities might regain the territory lost by force of arms. 47. After Memphis, Tennessee, with the adjacent country, was occupied by the Union Army, who expelled therefrom the rebel forces, the lessees of absent citizens were compelled to turn their rents into the military chest of their new rulers. The Supreme Court of the United States held this to be a proper exercise of the right of war, and refused to hold them liable to their lessors for moneys thus paid to the agents of the de facto government. The general commanding the Union forces at Memphis was charged with the duty of suppressing rebellion by all che means which the usages of modern warfare permitted. To that end he represented for the time, and in that locality, the military power of the nation. The rents were seized flagrante bello in that portion of the territory of the United States the inhabitants whereof had been declared to be in insurrection. There was no such "substantial, com- TEKRITOKIAL EXTENT. 79 plete, and permanent military occupation and control" as has been sometimes held to draw after it a full measure of protection to persons and property at the place of military op- erations. No pledge had there been given by the constituted authorities of the Government which prevented the commander of the Union forces from doing all that the laws of war author- ized, and that, in his judgment, under the circumstances at- tending his situation, was necessary or conducive to a successful prosecution of the war. i And although, in fact, the occupa- tion of the district in question by the Union forces was not only complete and substantial, but proved to be permanent also, it is evident that such need not have been the case to legalize all administrative measures of their commander con- sistent with modern laws of war. 48. It has been remarked that the American Commission at Paris, in 1898, took the stand that the sovereignty of the United States attached to the Philippines when Manila, the capital, was captured. 2 This was not a legal claim, if put forward, as the rule of belligerent right is that the conqueror takes only what he can hold in subjection. 3 Nothing, under the actual conditions existing, could be more futile than for the United States authorities to make such a claim. As matter of fact they could not hold one foot of territory except by the sword. It is true that the United States was in a position to enforce any demand it saw fit against Spain, which was powerless to defend itself. This; however, is a very different thing from the capture of the capital city legally constituting a conquest of the Archipelago. I. Gates V. Goodloe, lOi U. S., pp. 617, 618; Planters' Bank t/. Union Bank, 16 Wallace, 495. 2. Magoon, p. 247. 3. The Hague Conference Sec. 3, Art. XLIl. (G. O. 52, A. G. O. 1902.) CHAPTER V. Territory MiIvITarily Occupied, Enemy Territory. 49. Military occupation does not add permanently to the public domain; nor does temporary occupancy of our own by enemy forces diminish it. If a nation be not entirely sub- dued, it is the usage of the world to consider the holding of conquered territory as a mere military occupation until its fate is determined by a treaty of peace, i It is true that ulterior objects may cause this rule to be dis- regarded. As, for instance, in the invasion of New Mexico and California in 1846-47. Here, acting under instructions, the military commanders immediately upon occupation issued proclamations annexing those territories to the United States and absolving the people from their allegiance to the Mexican Government. In New Mexico, at least, the election of a dele- gate to Congress was authorized. The same rule was observed bj' the Germans in Alsace and Lorraine in 1870-71. The permanent annexation of these provinces had been determined upon. Every movement of the occupying power was directed to the consummation of that purpose. The military government as to them differed from that established elsewhere in France principally, i, in the de- termined suppression of the elements by which the transfer from one country to the other was opposed ; 2, in encourag- ing and strengthening the elements favorable to the change; 3, in gaining over the hesitating and neutral elements by pro- moting and by showing consideration tor their interests. 2 50. While, under a limited monarchy such as the kingdom of Great Britain, the exercise of authority by military command- ers, as in New Mexico and California, might, to a great extent, I. Amer. Ins. Co. •!). Canter, I Peters, 542. 2. Bluntschli, I., Sec. 36a. 80 TERRITORY MILITARILY OCCUPIED, ENEMY TERRITORY. 8 1 have had the sanction of usage, this could not be the case under the Government of this Union. The latter possesses, it is true, authority to acquire territory, the Constitution conferring upon it absolutely the powers of making war and treaties, i But the exercise of the territory-acquiring authority rests with those departments of the Government in which these powers are vested. The Executive, acting alone, can neither add to nor t?ke from the territory of the United States. The action of the military commanders, therefore, in New Mexico and Upper California, in so far as they assumed to annex those Territories, permanently to transfer the allegiance of the people from the Republic of Mexico to the United States and give them repre- sentation in the National Congress, was beyond their powers and void, although done in pursuance of the instructions of the Secretary of War. General Scott understood this matter better. In his in- structions to General Kearney of November 3, 1846, he said "You vWU erect and garrison durable defences for holding the bays of Monterey and San Francisco, together with such other important points in the same provinces as you may deem it necessary to occupy. You will not, however, formally declare the province to be annexed. Permanent incorpora- tion of the territory must depend on the Government of the United States." Decisions of the Supreme Federal Tribunal set at rest all doubts on this subject. During the war of 1812, a British ship, sailing from the Danish island of Santa Crux, freighted with certain products of the island, was captured by an American privateer. The owner of the plantation on which the produce [sugar] was raised was a Danish official, who withdrew to and remained in Denmark when the island surrendered to the British, leaving his estate under the management of an agent. The vessel and cargo were duly condemned as enemy property. A claim for the sugar was put in by the Danish owner, but it was condemned with the rest of the cargo, and the sentence I. Hall, pp, 466-67; see also Shanks v. Du Pont, 3 Peters. 24.6. —6— 82 MIUTARY GOVERNMENT AND MARTIAL LAW. confirmed, upon appeal, by the Supreme Court of the United States. It was remarked that the island of Santa Crux, after its capitulation, remained a British island until it was restored to Denmark; that acquisitions made during war are not con- sidered permanent until confirmed by treaty, yet, to every commercial and belligerent purpose, they are considered as part of the domain of the conqueror so long as he retains the possession and government of them; that although incor- porated, so far as respects his general character, with the per- manent interests of Denmark, the owner was incorporated, so far as respected his plantation in Santa Crux, with the perma- nent interests of Santa Crux, which was at that time British; and though, as a Dane, he was at war with Great Britain and an enemy, yet as a proprietor of land in Santa Crux he was no enemy ; he could ship his produce to Great Britain in perfect safety, i 51. During the period of their occupation of Castine, Maine, the British Government exercised all civil and military authority over the place; established a custom-house, and admitted imported goods under regulations prescribed by itself. Certain of these goods, so imported, remained at Cas- tine after the enemy retired. The attempt of the United States collector of customs to collect duties thereon was re- sisted upon the ground that duties were not due. The question, being taken to the Supreme Court of the United States, was decided adversely to the Government. The court observed that, under these circumstances, the claim for duties could not be sustained. By the conquest and military occupation of Castine the enemy acquired that firm possession which en- abled him to exercise there the fullest rights of sovereignty. The inhabitants passed 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 I. Thirty Hogsheads of Sugar v Boyle, 9- Cranch, 191. TERRITORY MILITARILY OCCUPIED, ENEMY TERRITORY. 83 where there is no protection or allegiance or sovereignty there can be no claim to obedience, i 52 The case of Fleming v. Page illustrates the same prin- ciples. The Supreme Court there held that military occupa- tion did not make occupied districts a part of our territory under our Constitution and laws. The United States may extend its boundaries by conquest or treaty and may demand the cession of territory as the condition of peace. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned them by the legislative power. It is true that when Tampico had been captured and the State of Tamaulipas subjugated, 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 exclusive possession of the conquered country. Buc yet it was not a part of the Union.' For every nation which acquires territory by treaty or conquest holds it accord- ing to its own institutions and laws. The relation in which it stands to the United States depends not upon the law of nations, but upon our own Constitution and acts of Congress. The boundaries of the United States, as they existed before the war was declared, were not extended by the conquest, nor could they be regulated by the varying incidents of war I. United States v. Rice, 4 Wheaton, 254; see also Shanks v. Du Pont, 3 Peters, 246. 84 MILITARY GOVERNMENT AND MARTIAL LAW. and be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And ev- ery place which was out of the Hmits of the United States, as previously established by the political authorities of the Gov- ernment, was still foreign; nor did our laws extend over it.r And in Cross v. Harrison the court observed that although. Upper California was occupied by the military forces in 1846, and a government erected therein by authority of the Presi- dent, still it was not a part of the United States, but conquered territory within which belligerent rights were being exercised; nor did it become part of the United States until the ratifica- tion of the treaty of peace, May 30, 1848.^ 53. Districts occupied by rebels treated as belligerents are, in contemplation of law, foreign. The same principles govern intercourse therewith during military occupation as though they belonged to an independent belligerent. They are ene- my territory because they are held by a hostile military force. And in determining whether belligerent rights shall be con- ceded to rebels, with all attendant consequences, it has been decided that 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 that the judicial must be governed by the decision and acts of the political department of the Government to which this power is entrusted. He must determine what degree of force the crisis demands.' When parties in rebellion occupy and hold in a hostile manner a portion of the territory of the country, declare their independence, cast off their allegiance, organize armies, and commence hostilities against the Govern- ment, war exists. The President is bound to recognize the fact, and meet it without waiting for the action of Congress, to which is given the constitutional power to declare war. Under 1. 9 Howard, 615-16. 2. 16 Howard, 191-92. 3. Prize Cases, 2 Black's Reports, 270. TERRITORY MILITARILY OCCUPIED, ENEMY TERRITORY. 85 his authority as commander-in-chief, and his constitutional obligations to see that the laws are faithfully executed, he takes the necessary measures to meet the emergency and crush the rebellion. If rebels dominate a district bounded by a line of bayonets to be crossed only by force, and the President has conceded to them, in their' military capacity, belligerent rights, all the territory so dominated must be considered enemy territory and the inhabitants as enemies.' 54. When a rebellion has assumed the character of civil war, it is attended by the general incidents of regular warfare. The general usage of nations regards such a war as entitling both the contending parties to all. the rights of war as against each other, and even as respects neutral nations.^ The United States acted in accordance with this doctrine toward the con- tending parties in the civil war in South America. The Su- preme Court, in the case of The Santissima Trinidad, said: "The Government of the United States has recognized the existence of civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties and to allow to each the same rights of asylum, hospitality, and intercourse. Each party is deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights." ^ 55. Vattel points out that in a civil war the contending parties have a right to claim the enforcement of the same rules which govern the conduct of armies in wars between independent nations — ^rules intended to mitigate the cruelties which would attend mutual reprisal and retaliation.^ To the same effect was the language of the Supreme Court of the United States in Coleman v. Tennessee. The court remarked that the doctrine of international law as to the effect of mili- tary occupation of enemy territory upon former laws is well I. Williams v. Bruflfy, 96 U. S., 189-90. 2. Dana's Wheaton, Sec. 296 and note. 3. 7 Wheaton, 337. 4. Law of Nations, p. 425. 86 MILITARY GOVERNMENT AND MAETIAL LAW. I understood; that though the late war [Rebellion of 1861-65] w£s not between independent nations, but between different portions of the same nation, yet, having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war, being a consequence of its acquisition; and the char- acter and form of the government to be' established depend entirely upon the laws of the conquering State or the orders of its military commanders. 1 The course pursued by the National Government during the Civil War accorded with these principles. The Government oc- cupied, it is true, a peculiar position. It was both belligerent and constitutional sovereign. For the enforcement of its con- stitutional rights against armed insurrection it had all the power of the most favored belligerent. 2 From time to time 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. But, until the power of the rebellion was broken, its armies captured or dispersed, and national supremacy rendered every- where complete. States and districts whose inhabitants had been declared to be in a state of insurrection were deemed to be and treated as foreign cerritory, to be conquered and gov- erned according to the laws of war, except as modified by acts of Congress. These acts were an exercise of the war power of the Government. They were partly directed to the regulations of military government over conquered provinces, and p irtly to the sovereign righc of recalling revolted subjects to their al- legiance. All intercourse with the revolted territory was inter- dicted or conducted only under the la ws of war, as modified by statutes enacted puisuant to the same policy. 3 I. 97 U. S., p. 517. 2. Lamar v. Hrowne, 92 U. S., 195. 3. Procla- mations, 19 April, 27 April, 10 May, (6 Aug., 1861; 12 May, 25 July, 22 .Sept., 1862; I Jan., 1863, 12 Statutes at Large; 2 April, 23 Sept., TERRITORY MILITARILY OCCUPIED, ENEMY TERRITORY. 87 Whether, therefore, war be waged agpinst a foreign foe, or a domestic foe treated as a belligerent, territory subjugated by him or which he dominates is enemy territory in its relation to the invader. 56. The British rule as to the effect of conquest is different. No war of conquest and annexation ever prosecuted by that power was more deliberately planned or successfully executed than that of the United States against the Mexican Territories of New Mexico and Upper California. Yet had British arms, with such a purpose, subjugated those distant provinces, they would at once, without any act of the Parliament of Great Britain, have become part of the dominion of the Crown. No other act than that of conquest, when the avowed object is that of annexation, is, under English lew, requisite to this end. Submission to the King's authority under such circumstances makes the inhabitants his subjects. The territory is no longei: regarded as foreign or the people as aliens. Except so far as rights have been secured by terms of capitulation to the inhab- itants, the power of the sovereign is absolute. The conquered are at the mercy of the conqueror. Still, although deemed to be British subjects, it is not to be supposed that they are possessed of all the political privileges of Englishmen, as the right to vote or be represented in Parliament. If conquest be not made with a view to permanent annex- ation, mere military occupation adds nothing in British law to the dominions of the Crown, and but temporarily affects the allegiance of the people. The principle established by British prize adjudications is that where the question is as to the national character of a place in an enemy's country, it is not sufficient to show that possession or occupation of the place was taken, and that, at the time in question, the captor was in control. It must be shown either that the possession was given in pursuance of a capitulation, the terms of which con- 8 Dec, 1863; 18 Feb., 26 March, 5 July, 1864; April 11, 1865, 13 Stat- utes at Large; Acts of July 13, 1861; May 20, 1862; July 17, 1862 March 12, 1863, 12 Statutes at Large, pp. 257, 404, 589, 820. 88 MILITARY GOVERNMENT AND MARTIAL LAW. templated a change of national character, or that the possession was subsequently confirmed by a formal cession, or by a long lapse of time. I I. Blackstone, 2, p. 107; 4, pp. 414-15; Wheaton, Sec. 34S, Danas' Notes, 169; 2 Wallace, 271. CHAPTER VJ. Effect of Occupation on Local Administration. 57. Important consequences result from the rule that ter- ritory under military government is considered foreign. Im- ports into and exports therefrom are regulated by the military authorities acting either alone or in conjunction with the law- making power. 58. Merchandise of all kinds imported into Upper Califor- nia, while that country was occupied by the United States forces, was subject to a "war tariff" established under the direction of the President, and which was exacted until of&cial notification was received by the military governor of the rat- ification of the treaty of peace. 1 59. In De Ivima v. Bid well 2 the Supreme Court of the United States held that goods jmported from Porto Rico after the cession of the latter, under the treaty with Spain, ratified April II, 1899, were not dutiable. It was held that territory incorporated into the Union could not be held for pur- poses of control, yet foreign as to customs laws. The dictum looking in that direction in Fleming v. Page, 3 and which was practically negatived in Cross v. Harrison,* was overruled. While war lasts, the military authorities regulate the matter of commercial duties; but when the territory becomes incor- porated into that of the Union, Congress alone can do this. 60. The rule which makes, for all commercial purposes, the citizens or subjects of one belligerent enemies of the gov- ernment and citizens or subjects of the other, applies equally to civil and to international wars. But either belligerent may modify or limit its operation as to persons, property, and ter- I. 16 Howard, 189. 2. U. S. Reports, 182, p, 194. 3. 9 Howard, 6r5, 4 16 Howard, 190. 89 go MILITARY GOVERNMENT AND MARTIAL LAW. ritory of the other.' The course of the National Government during the Rebelhon furnishes numerous illustrations of this. Both sovereign and belligerent rights were asserted and en-- forced as best suited the views of the- National Government and the object of the war, which was the suppression of insur- rection and restoration of the Union. The President, "pur- suant to the laws of the United States, and of the laws of na- tions in such cases provided," issued proclamations blockading the ports of districts and States in insurrection. Congress passed an act interdicting all commercial intercourse with dis- tricts declared by the President to be in insurrection, except in the manner pointed out in the statute.^ Duties were not imposed on merchandise coming to loyal ports from reclaimed rebel districts with which intercourse was permitted under the law. Trade therewith was considered domestic, as re- garded the revenue laws of the United States. The President alone had power to license intercourse. And, as provided by the act, all intercourse was regulated strictly by the rules es- tablished therefor by the Secretary of the Treasury.-'' Fur- ther, when the President had proclaimed a State to be in insur- rection, it was judicially decided that the courts must hold this condition to continue until he decided to the contrary.* 6i. Except as restrained by the laws of nations, the will of the conqueror is the law of the conquered. By the laws of war, an invaded country may have all its laws and municipal institutions swept by the board. ^ Whatever of former laws are retained during military government depends upon the President and military commanders under him, acting either independently or pursuant to statute law. It will be found, as a rule, the part of -wisdom if the commanding general be left untrammeled. It necessarily follows, when armies are oper- ating outside the United States, that the executive depart- ment alone controls. Commanders acting under the direction I. 2 Wallace, 274. 2. 12 Statutes at Large, 275. 3. 3 Wallace, 617; 5 Wallace, 630; 6 Wallace, 521. 4. 11 American Law Review, p. 419. 5. J. Q. Adams, House of Representatives, April 14-15, 1842. EFFECT OF OCCUPATION ON LOCAL ADMINISTRATION. 9I of the President are held responsible for the conduct and suc- cess of military movements. As Congress has pewer to de- clare war and raise and support armies, it must have power to provide for carrying on war with vigor. Halving taken measures to supply the necessary men and materials of all kinds, Congress does not further act unless in pursuance of some special policy. The command of the forces and the con- duct of campaigns devolves alone upon the President and military officers. These matters lie wholly outside the sphere of Congressional action.' 62. As a rule, municipal laws of the territory under military government are continued in force by the conqueror so far as can be consistently with effective military control. If any local authority continues, however, it will only be with his permission, and with power to do nothing except what he may authorize.^ 63. The position of the United States military authorities in Cuba, before the Spanish authorities abandoned the island in 1899, was one of military occupation, pure and simple; after that event, it was military occupation of a particular kind — namely, wherein the dominant military power exer cised authority over the island as trustee for a Cuban nation not yet in existence, but the creation of which was promised and which was to have the assistance of the United States in establishing itself. During the former period the dominant military power ex- ercised the authority of a conqueror in all his plenitude. Dur- ing the latter period the United States military authorities governed, indeed, wholly by the rights of war, yet at no time did they lose sight of the fact that they were acting in the in- terests of the future Cuban nation. The government might I. 4 Wallace, 141. 2. 8 Opinions Attorney-General, 369 ; 9 Opinions Attorney-General, 140; Bluntschli, Laws of War, I., Sees. 35, 36. 92 MILITARY GOVERNMENT AND MARTIAL LAW. be Styled civil, but it was military for every necessary purpose ; the rule was essentially that of the sword, i 64. In an opinion dated September 8, 1900, the Attorney- General stated that the rights of the United States authorities in Cuba, notwithstanding the pacific aspect of affairs, were based wholly on the laws of war. The effect of this was to brush out of the way all idea that the executive department of the dominant power was to be controlled in any degree against its will by the native civil authorities. 2 65. A system of government which considers only the will of one party to the compact will be based on the conveni- ence of that party. However merciful to the vanquished such government may be, those subjected thereto can scarcely be said to have rights in a proper sense. They have only such as are secured to them under the law of nations. Yet the modern doctrine is that laws which regulate private affairs, enforce contracts, punish crime, and regulate the transfer of property remain in full force so far as they affect the inhab- itants of the country as among themselves, unless suspended or superseded by the conqueror. 3 Contracts and debts be- tween the people and those in the dominant country are sus- pended, indeed, in their operation. 4 For the protection and benefit of the inhabitants, and the protection and benefit of others not in the military service of the conqueror, or, in other words, in order that the ordinary pursuits may not un- necessarily be deranged, these laws are generally allowed to continue in force and to be administered by the ordinary tri- bunals as before the occupation. Municipal officers can not work their fellow-citizens greater injury than by abandoning their posts at the approach of the enemy. I. Opinions Attorney-General, Vol. 22, pp. 384, 409, 410, 523; Vol. 23, pp. 129, 427, 226; Vol. 20, p. 656; Neely v. Henkle, 180 U. S. Reports, 120; Magoon, Civil Government, pp. 461, 481, 526, 584, 595, 603. 2. Magoon, Civil Government, pp. 372-73. 3. Coleman ■;; Tennessee, 97 U. S., 517; Instructions, Armies in the Field, G. O. 100, A. G. O. 1863, Sec. 2 4. Cobbett, p. 108, Manning, p. 176. KFFECT OF OCCUPATION ON LOCAL ADMINISTRATION. 93 The importance of this rule will appear upon the slightest re- flection. The existence of war and military government does not do away with the necessity for the administration either of municipal laws or some substitute for them. The prac- tical application of the rule relieves the commander of the oner- ous functions of civil government in so far as he may deem this necessary or advisable ; and it tends to secure t-he happi- ness of the governed and consequently their contentment. As the commander has absolute control, the rule enables him not only to advance legitimate schemes for the prosecution of the war, but at the same time disturbs the least possible the busi- ness pursuits and social relations of the people. It is based on principles of common justice and common sense, and in mod- ern times has received almost universal sanction. 66. During the occupation of New York city by the British army from 1776 to the end of the Revolutionary War, the operation of municipal laws was undisturbed except when it was found necessary for the military to interfere. Similar in- stances occiured during the occupation of New Orleans and its environments by the Union forces from May, 1862, until the end of the Rebellion; of Memphis, Tennessee, from June, 1862, until the end of war ; while, in the appointment of military governors in various of the conquered States, and the deter- mining their jurisdiction and authority, the principle was uni- formly acted upon of preserving in full vigor the local laws of the districts so far as this was compatible with the objects and conduct of the war. A like course was pursued in Cuba, Porto Rico, and the Philippine Islands. Our enemy, during the Civil War, acted upon the same principle. When the Territory of Arizona was occupied by Confederate forces in August, 1861, their commander issued a proclamation placing the country under military government. Executive and judicial departments were organized,' but all municipal laws not inconsistent with the Constitution and laws of the Confederate States were continued in force. 1 I. R, R.S., I., Vol 4, p. 20. 94 MILITARY GOVERNMENT AND MARTIAL LAW. While, during the Mexican War, the armies of the United States occupied different provinces of that republic, the com- manding general allowed, or, rather, required, the magistrates of the country, municipal or judicial, to continue to administer the laws of the country among their countrymen — in subjec- tion always to the dominant military power, which acted sum- marily and according to discretion, when the belligerent inter- ests of the Government required it. i So when New Mexico was taken possession of during that war and there was ordained, un- der the sanction of the President, a provisional government in place of the old, the commanding general announced to the peo- ple that by this substitution of a new supremacy, although their former political relations were dissolved, yet their private rela- tions, their vested rights, or those arising from contract or usage under the displaced government, remained in full force and unchanged, except so far as in their nature and character they were found to be in conflict with the Constitution and laws of the United States, or with any regulations which the occupying authority should ordain. 2 67. Political laws are enacted for the convenience, security, and administration of government. These, upon the military occupation of a State by an enemy, cease to have validity. 3 By that event a new government, based not upon the express, though it may be implied, consent of the people, takes the place of the old. And while municipal laws may be retained in the subjugated discrict, this, in the nature of things, can not be true of political laws which prescribed the reciprocal rights, duties, r.nd obligadons of go\ernment L.nd its citizens. 4 As the State has n >t been able to protect its citizens, they can not afterwards be punished for having acquiesced in the authority that has gained contrcl. If they remain quietly as non-com- batants, they will be protected. 5 The commander of the occu- I. 8 Opinions Att'y-Gen., 369. 2. 20 Howard, 177. 3. Maine, p. 179; Manning, p. 182; Hall, p. 402; Opinions Attorney -General, Vol. 22, pp. 527-28, 574; Post, Chap. 9, Sec. 116. 4. Halleck, Chap. 32, Sec. 4; Boyd's Wheaton, Sec. 346 (e). 5. 4 Wheaton, 246; 8 Wallace, i; 96 U. S., 189. EFFECT OF OCCUPATION ON LOCAL ADMINISTRATION. 95 pying forces has a right to require of the inhabitants an oath of fealty to him not inconsistent with their general and ultimate allegiance to their own State, i He may require them to do police service, but not to take arms against their own country. 2 Indeed, in the absence of any such formal promise, it is under- stood in modern times that by taking the attitude of non- combatants and submitting to the authorit)' of the conqueror, the citizen holds himself out as one not requiring restraint, and is treated as having given an implied parole to that effect. Combatants, or persons who, by resist mce, or attempts at resistance, or by refusal to submit, take the attitude of com- batancs, may be placed under restraint as prisoners of war. Some modern writers have gone so far as to contend that cit- izens who come under temporary or partial allegiance to the conqueror can not throw it off and resist the authority by force except on grounds analogous to chose which justify revolution. 3 But this seems to be rather a matcer of policy than law. 68. During the occupation the inhabitants become subject to such laws as the conqueror may choose to impose. In the nature of things none other can be obligatory. Where there is no protection or sovereignty there can be no claim to obedi- ence set up by the ancient State. 4 While military govern- ment exists it must be obe3^d in civil matters by citizens who by acts of obedience rendered in submission to overpow- ering force do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the right- ful, but now temporarily displaced government. 5 The British Government exercised all civil and military authority over Castine, Maine, when reduced by its arms. The obligations of I. Hall, p. 437, American Instructions, Sec. i, par. 26; but see Hague Conference, Sec. 3, Art. XLV. a Instructions U. S. Armies in the Field, Sec. 2, clause 3 ; The Hague Conference, Sec. 3, Art. XLIV. 3. Dana's Wheaton, note 169, p. 436; Halleck, Chap. 32, Sec. 19. 4. Boyd's Wheaton, p. 412; BluntschU, I., Sec. 35. 5. Thorington d. Smith, 8 Wallace, 9. 96 MILITAET GOVERNMENT AND MAETIAL LAW. the people of Castine as citizens of the United Staces were not thereby abrogated, i They were suspended merely by the pres- ence, and only during the presence, of paramount hostile forces. And it became the duiy of the government of occupation to provide as far as possible for the security of persons and prop- erty and the fdministration ot justice. 2 To the extent of actual supremacy, in all matters of government wichin its military lines, its power could not be questioned. Therefore obedience to its authority in civil and local matters was not only a necessity, bat a duty. Without such obedience, civil order would be impossibles On the other hand, it owed and should have extended jirotection to those who submitted to its authority. 69. Ordinarily the rules by which military government is enforced are prescribed by the commander. He speaks and acts as the represencative of the conqueror. Being upon the theacre of operations, and answerable co his government for the success of its arms, he has superior facilities for judging as to measiu^es best calculaced to attain the objects of military occupation and the highest motives for wishing their adoption. Unless his measures have been prescribed by higher authority, the commander will himself formulate and carry the details of military government into execution. He acts in strict sub- ordination to the supreme executive power of the State. Yet the relation which the conquered district occupies toward the government of the conqueror depends, not upon the law of nations, but upon the constitution and laws of the conquering State. 4 70. The right of the law-making power to enact such laws, looking to an effective military government, as will best meet the views of the dominant State in prosecuting hostilities, can not be questioned. The authority of Congress, in this I. 4 Wheaton, 253. 2. The Gfapeshni, 9 Wall, 132. 3. Thoringtoii ». Smith, 8 Wallace, 1 1 ; Williams T). Bruffy, 96 U.S., 189; Bluntschli, Laws of War, I., Sees! 64, 122. 4. Flemming v. Page, g Howard, 615 Dana's Wheaton, p. 437, note 169. EFFECT OF OCCUPATION ON LOCAL ADMINISTRATION. 97 regard, under its constitutional powers to declare war and raise and support armies, is complete, i This power would be made effective, not by laws which purport to operate directly upon the people of the conquered district, and which so long as the territory is foreign Congress has no authority to en- act, but laws for the guidance of the general or other official entrusted with the details of military government. When Wellington in France and Scott and other commanders in Mexico insdtuted military government, it was simply an inci- dent in the conduct of campaigns. The general, in each in- stance, acting under a responsibility to his superiors, adopted those measures which he deemed best for the successful car- rying of military government into operation. His obligations in this respect were the same as were his obligations by every means in his power successfully to conduct the campaign against the enemy. Placed, because of confidence reposed in his ability and skill as a military chief, in a position of respon- sibility, he will generally, if there be no ulterior object in view beyond the simple triumph of arms, be permitted to carry oh the details of military government unrestrained by orders from distant superiors or by legislative enactments. 2 71. The political views of the conquering State may, how- ever, be of a nature materially to modify these ordinary dis^ cretionary powers of the- commander. Such was the case, as has been seen, when California and New Mexico were subju- gated by the arms of the United States. As it was predeter- mined by the Government, not only to reduce those provinces to submission, but permanently to annex them to the territory of the Union, the instructions to military commanders, it will be remembered, were in consonance witTi- this policy. The laws they enforced, the institutions they set up over the people occupying the subjugated discricts, were not necessarily those which the commanders: thfeniselves deemed best, but such as comported with the determination of the Government re- I. Kent, I., p. 93, note. --2. 22 Willaee,. 297. ' > qS military government and martial law. garding annexation, and orders given in pursuance thereof by the President. Instructions emanating from this source are of course equally binding, directly upon the commander enforcing, and indirectly upon the inhabitants of districts subjected to, military government. The policy pursued in the Philippines is another conspicuous instance of this. The capture and permanent occupation of insurrectionary districts by the Union forces during the Rebellion furnish other illustrations of this principle. The military commanders had a duty to perform in conquering the rebellion, but their coiu-se regarding the government of the districts occupied was modi- fied by the policy of the Government of the United States toward the people residing there. So far as possible consist- ently with the triumph of its arms, they were treated by the National Government as if their political relations had never been interrupted.! Accordingly, when a Federal commander assumed the reins of military government, and announced the principles by which he would be guided in its administration, promising protection to person and property subject only to the laws of the United States, it was judicially held that he thereby did but reiterate the rules esta blished by the legislat- ive and executive departments of the Government in respect to those portions of the States in insurrection, occupied and controlled by the forces of the Union. 2 By numerous acts of Congress, and, by proclamations of the President issued either pursuant thereto or by vircue of his authority as commander- in-chief, this policy of the legislative and executive departments was made known. And thereby, to the extent indicated by that policy and the additional orders of the President issued from time to time, was modified that discretion which com- manders otherwise would have exercised in parts of insurgent territory subjected to military government. 72. Napoleon established military governments in Spain, in Navarre, Catalonia, Aragon, Andalusia, and other provinces. I. The Venice, 2 Wallace, pp 277-78. 2. Ibid., 1276-77. EFFECT OF OCCTJPATION ON LOCAL ADMINISTRATION. 99 One subject seems to have been the more completely to bring forth and best utilize the military resources of the country. Fiu-ther, it was hoped to accustom the people to French, though military, rule, and, when the proper time came, this system could be abandoned and the government of King Joseph naturally take the place of it. The plan was of the far-reaching nature of all Napoleon's schemes of conquest. Events rendered it abortive. But, as a complete system of military government, nothing in history exceeds in instructive- ness this a ttempt to reduce the Spaniards piecemeal into sub- jection with a view to the subversion of their kingdom, i 73. When it was seen that Spanish authority was to ter- minate early in 1899 in Cuba, it appeared that efforts were made by the inhabitants of Havana to secure concessions" from the yet de facto but expiring sovereignty. The question of validity afterwards came up in some of these cases. It resolved itself into two matters of fact — ^first, Did the Spanish power rule there at the time of the concession? second, Was the latter granted in accordance with Spanish laws? If both could be answered in the affirmative, the concession was up- held; but if it proved that the whole transaction was merely colorable — an attempt to oust the incoming government of its rights, and which it was about to assume — ^the concession was regarded as void ah initio. 2 It was the disposition of the military government to up- hold all contraccs entered into in the ordinary course of busi- ness; to Evoid interfering with vested rights; but rights that partook of the natiure of attributes of Spanish sovereignty dis- appeared with the latter. 3 74. The relation of the United States to Cuba, resulting from the war of 1898, came up for review before the Supreme Court. An American who in Cuba was charged with crime had been arrested within one of the States of the Union, and I. Napier, Book XI., Chap. 11, pp. 84, 85. 2. Magoon, p. 603. 3. Opinions Attorney-General, Vol. 22, pp. 527-28. ICO MILITAET OOVEENMENT AND MAETIAL LAW. it was held that he was subject to extradition. The court re- marked that, as between the United States and all foreign lations, the former held Cuba as conquered territory; as be- ' ween the United States and Cuba, the latter was held by military power in trust for the Cuban people, to be delivered over on the establishment of a stable government. It was a military occupation. The military governor organized the civil government under foiur' departments; afterwards a su- preme court was established; a postal code was published; the jxu"isdiction of the criminal courts defined. It was, the court concluded, whoUy for the politicf^l department of the Government to decide when our troops should be withdrawn from Cuba. 1 I. Neely v. Henkle, i8o U. S. Reports, 120 CHAPTER VII. Agbnts for Carrying Military Government into Execution. 75. Among the incidents which attach to the estab- lishment of military government is the appointment of che agents by whom, and a determination of the principles by which, it is to be administered. It is indispensable that these matters be wisely determined in order to secure the objects for which such government is established. The selection of these agents rests entirely with the govern- ment of the occupying army. 1 From necessity they will, in the first instance, ordinarily be military officers; as, when the ter- ritory is first occupied, the officials on the spot, competent from their trailing and with the requisite force at hand to render military government successful, are the commander of the army and his subordinates. The home government may, from considerations of policy, adopt a course in selecting agents when military government is set up over foreign territory dif- fering from that observed when it is established within districts occupied by rebels treated as belligerents. 2 Again, if it be in- tended permanently to annex foreign territory so occupied, every means probable will be made use of to aUay the fears and win the confidence of the conquered people by adopting toward them a line of conduct which they can see is calculated to guard their rights and liberties, civil and religious, and render them secure in person and property. 76. In his instructions to General Kearney of June 3, 1846, Secretary of War Marcy showed the deep solicitation of the I. Hall, p. 436. 2. The Germans, in 1870, at least in Alsace and Lorraine, appointed officials in every department of the administration and of every rank. This was a pre-determined policy, looking to the absorption of those provinces. 101 I02 MILITARY GOVEENMENT AND MARTIAL LAW. Government upon this point when he observed: "Should you conquer and take possession of New Mexico and Upper Cali- fornia, you will establish temporary civil governments therein, abolishing all arbitrary distinctions that may exist, so far as it may be done with safety. In performing this duty it would be wise end prudent to continue in their employment all such of the existing officers as are known to be friendly to the United States. * * * * You may assure the people of those prov- inces that it is the wish and design of the United Scates to provide for them a free government, with the least possible de- lay, similar to that which exists in oiu- Territories. * * * * It is foresee that what relates to the civil government will be a difficult and unpleasant part of your duty, and much must necessarily be left to your own discretion. In your whole con- duct you will act in such a manner as best to conciliate the inhabitants and render them friendly." Pursuant to these instructions the so-called civil government was erected in New Mexico within one month of the entry of the forces of the United States into the capital of that Territory. The officers consisted of a governor, secretary, marshal, district attorney, treasurer, auditor, and three Supreme Coiurt judges. Of course, nothing except the presence of superior military force enabled these officials — civilians — to perform their ap- propriate duties. The government was that of the sword; called by a different name to be more pleasing to the people. 77. In California essentially the same policy was' pm-sued. On August 17, 1 846, Commodore Stockton, U. S.N., styling him- self commander-in-chief and governor of California, issued a proclamation announcing the armexation of the Territory to the United States and calling on the people to meet in their several towns and departments and elect civil officers to fill the pi ices of those who refused to continue in office. Within a month thereafter a territorial form of government was announced. Yet, notwithstanding this apparent deference to civil govern- ment, the following passage in the proclamation shows how completely the country was held under military control : "All AGENTS FOE CARETIKG INTO EXECUTION. 103 persons are required, so long as the Territory is under martial law, to be in their houses from lo o'clock at night until sunrise in the morning." Commodore Stockton was succeeded by Commodore Shu- brick, U. S. N. Meanwhile, General Kearney, U. S. A., leav- ing sufficient force behind him to maintain the authority of the United States in New Mexico, marched with the rest of his Command into California. Here, March i, 1847, these two officials issued a joint circular to the people of the conquered provinces, reciting that the President had assigned the regu- lation of import trade, the conditions on which all vessels should enter ports of the Terricory, and the establishment of port regidationa to the naval authorities ; while to the military au- thorities were given the direction of the operations on land and the administrative fuiictions of government over territory thus occupied by their forces. FoUovping this, what was styled a "civil," but what in fact was a military govern- ment, was organized, the officials of which, unlike those in New Mexico, were army or navy officers. Municipal affaiis were carried on the same as before occupation, by officers either chosen by the people under the authority of the conqueror, or holding over under that authority, and in accordance with local laws. 78. In those districts occupied by our forces and concerning which schemes of permanent conquest were not meditated, military commanders governed strictly in accordance with the laws of war. 79. Both Generals Scott and Taylor were at first instructed by the Secretary of War to supply their armies in Mexico by forced contributions from the enemy without paying therefor, but this policy was not adhered to; instead,, when practicable, necessaries were purchased of the inhabitants and paid for at a fair price. 1 I. Kent, I, p. 92 (b) ; Autobiography of Lieut. -Gen. Scott, p. 580. I04 MILITARY GOVERNMENT AND MARTIAL LAW. On Scott's line of operations, at least, the protection of re- ligion, property, and industry were co-extensive with military occupation. 80. These principles of liberality in dealing with the enemy were swayed by considerations of policy resulting from the determination to render the military government set up over the conquered provinces sources of revenue to the Government of the United States. The President, with a view to impose a burden on the enemy, deprive him of the profits to be derived from trade and secure it to the United States, ordered that all the ports and places in Mexico in actual possession of the land and naval forces should be open, while the military occupation continued, to the commerce of all neutral nations, as well as of the United States, in articles not contraband of war, upon the payment of a prescribed tariff of duties and tonnage, pre- pared under his instructions and to be enforced by the military and naval commanders. He claimed and exercised, as being charged by the Constitution with the prosecution of the war, the belligerent right to levy military contributions and to col- lect and apply the same towards defraying the expenses of the war. The execution of the commercial regulations was placed under the control of the military and naval forces, and, with the policy of blockading some and opening other Mexican ports, the whole commerce for the supply of Mexico was com- pelled to pass under the control of the American forces, subject to the contributions, exactions, and duties so imposed. 1 81. When military government is instituted in States or districts occupied by rebels treated as belligerents, political considerations will generally determine, even more than when armies are on foreign soil, who the agents shall be to carry it into execution. They may be either civil or military, depending upon circumstances, although the only efficient coercive power will always be the military. The right to put into operation the sterner rules of war applicable to the case is unquestioned. I. Kent, I, p. 92 (b); Fleming v Page, 9 Howard, 616. AGENTS FOR CAEETING INTO EXECUTION. 105 The animosities which civil war engender are calculated to prompt to the exercise of these rules in all their rigor. On the other hand, nations do not pursue schemes of conquest, in the proper sense of the term, against revolted subjects. As agiinst them war is waged not for conquest, but to bring them to a sense of duty, vindicate the integrity of offended law, and preserve unimpaired both the territory and institutions of the legitimate government. No war of which history furnishes record has given occasion for the application of these principles to the extent of the Civil War in the United States from 1861 to 1865. As the hostile' line was driven back, military com- manders exercised over the territory so reclaimed the rights of conquerors, it is true, but only to the extent that this accorded with the political policy of the National Government. 82. When New Orleans was occupied by the Union forces in 1862, the commanding general enjoined upon all the inhab- itants the pursuit of their usual vocations. So long as they did this in good faith, they were protected. Disorders and disturbances of the peace, caused by combinations of citizens, and crimes of an aggravated nattu-e interfering with the forces or laws of the United States, were referred to a military court for trial and punishment; other misdemeanors were made subject to municipal authority, and so with regard to civil causes between party and party. A censorship was instituted over the press of the city. 1 All the officials appointed by the commander to enforce the military government were officers of the army. The same rule of conduct controlled at Memphis, Tenn., and at many other important points. In truth, throughout the Civil War the generals in command, wherever in conquered rebellious territory it was determined to establish order upon a basis which it was hoped would prove permanent, resorted to measures which are sanctioned by the laws of war applicable to armies operating in foreign territory, Except as these were I. Rebellion Records, Series I., Vol. 6, p. 717. I06 MILITAET GOVERNMENT AND MAETIAL LAW. modified by the conciliatory policy of the Federal Government. An important feature- consisted of military commissions com- posed of military ofl&cers only. And this summary system of judicature was supplemented, so far as practicable or the mil- itary commander deemed it advisable, by the civil authorities of the district occupied; the latter, of course, to take cogni- zance only of transactions affecting the inhabitants in their dealings with each other, and enforcing, as to them, the local law in its criminal and civil branches, i 83. But the fact that the object in suppressing rebellion is neither conquest nor subjugation, but overthrow of the in- surgent organization and the re-establishment of legitimate authority, 2 prompts to the establishment of quasi-civil gov- ernments in insurgent territory permanently occupied by the national forces; and this, not because military govern- ment pure and simple is either illegal or inadequate under the circumstances, but from considerations springing out of an eidarged and enlightened public policy, which seeks to dem- onstrate to all concerned that the main object of the war is the maintenance of national supremacy, and that every measure is to be adopted, in the organizaton of the govern- ments temporarily established upon secure military occupa- tion, to facilitate the return of the people to their former position as subjects, under such conditions and limitations as may be imposed by legitimate governmental authority. This policy was early adopted and consistently followed by the Government of the United States during the Civil War. And it was truthfully and patrioticelly said at the time that "to permit people so circumstanced to be governed by rules, regulations, statutes, laws, and codes of jurisprudence; to give them jurists able and willing to abide by standing laws, and thus to restore (,is far as is consistent with public safety and the secure tenm-e of conquest) the blessings of civil liberty and a just administration of laws — most of which are made by .hose I. Rebeffion Records, Series I., Vol. II., Part III., p. 77; Vol. XIV., p. 334; Vol. XVI.l, Part II., p. 41; Vol. IV., p. 20. 2 The Grapeshot, 9 Howard, 132. AGENTS FOE OABETING INTO EXECUTION. lOJ on whom they are administeied— ^is an act of magnanimity worthy of a great people. Such a government, though founded on end administered by military power, surely tends to re- store the confidence of the disloyal by giving them rights they could not otherwise enjoy, end by proteccing them from un- necessary hardships and wrongs. It can not fail to encourage and support the friends of the Union in disloyal districts by demonstrating to all the forbearance and justice of those who are responsible for the conduct of the war."i The same encomium could have been pronounced, and with equal justice, upon the measures taken in the Philippines by the National Government, commencing in 1899 andjcontinuing to this time, to give the Filipinos, in spite of themselves, civil institutions, based as much as possible on the will of the people. 84. Accordingly^, after the capture of Forts Henry and Donaldson and the occupation of Nashville by the Union forces, the President commissioned Andrew Johnson as mili- tery governor of Tennessee, the eastern part of which State had always been loyal to the Union. Mr. Johnson resigned his seat in the United States Senate to accept that of military governor, to legalize the powers and facilitate the performance of the duties of which it was deemed expedient to confer upon him the military rank of brigadier-general, to which he was duly nominated by the President and confirmed by the Senate. In North Carolina, after the capture by the Union forces of nearly all the forts and important points on the coast and ad- jacent thereto, the Honorable Edward Stanley was appointed by the President, May 19, 1862, military governor. Similarly, on June 3, 1862, after the occupation of New Orleans and con- tiguous territory by the Federals, George B. Sbepley was ap- pointed military governor of the State of Louisiana, with rank of brigadier-general. To each was given authority to exercise ana perform, within the limits of his State, all and singular the powers, duties, and functions pertaining to the ofl&ce of military I. Whiting, War Powers, loth edition, p. 265. io8 MILITARY GOVERNMENT AND MARTIAL LAW. governor (mchiding the power to establish all necessary offices' 3nd tribune Is and suspend the writ of habeas corpus) during the pleasure of the President, or until the loyal inhabitants of the State should organize a civil government in conformity with the Constitution of the United States. The authority given was plenary. But in the nature of things it could be exercised only over that portion of each State controlled by the Union armies. The effective authority of the milit?ry governor re- sulted from the fact alone that the army was at hand to enforce his mandates. Without this, his assumption of power was an empty show. 85. In no other States th'^n those mentioned were military governors appointed until after the final surrender of the rebel armies. Nor was this done because of lack of scope, vigor, and efficiency of the military rule of commanders of occupying forces ; but wholly from considerations of expediency. In one important respect the measure was positively detrimental. It necessitated two sets of officials with diverse responsibilities, when for all purposes of government the military alone were sufficient ; further, the relative powers and duties of each set, undefined as they were in great degree, might, as indeed they sometimes did, lead to clashing of authority. When this occurred in important matters army commanders as a rule carried the day, because to them was entrusted the duty of suppressing the rebellion by destroying the enemy's armies in the field; and, gr;;atts might be the desire, through the instrumentalities of civil officers, to assist in the re-estab- lishment of Federal authority and so to provide means of pro- tecting loyal inhabitants in their persons and property until they should be able to form civil governments for themselves, such considerations necessarily gave Way to the all-important object of defeating and dispersing the armed forces of the enemy, upon which the hopes of the rebellion rested. The result of this dual system was chat while in theory generals commanding had only to fight battles and assist military governoi's in the execution of undefined civil duties, yet, as a ACfENTS FOR OAERTINQ INTO EXECUTION. 109 practical fact, the ruling power remained in the hands of the generals, who alone had at their bidding the physical force necessary to cause their orders and decisions to be obeyed and respected. 86. Viewed from a military standpoint alone, the wisdom of the policy of dual governments might appear doubtful. The commanding generals with their armies had conquered and were occupying the territory, and of necessity remained there to hold it and to make it the basis of furcher operations. They could not be dispensed with. On the other hand, from a military standpoint, the military governors were not indis- pensable, and with their array of subordinate officials, prin- cipally civilians, they complicated matters in districts where the undisputed military sway was of the utmost importance. But, as before mentioned, purely military considerations did not determine the policy of the Government in this regard. A helping hand was to be given the people to return to cheir allegiance under acceptable civil government. Staunch friends of the administration were not indeed united in support of the measure. The President and his advisers decided, how- ever, that this policy was necessary, and, whatever evils at- tended it, they were unavoidable. Unquestionably also the presence of civilian assistance to the military governors, while sometimes they embarrassed, yet they often relieved commanding generals of many harassing details which in- variably attend the administration of governmental affairs over conquered territory. 87. The successes of the Federal armies during the third campaign of the war encouraged the President to attempt an improvement on the plan before adopted for weakening rebellion by the formation of State governments in rebellious districts. In pursuance of this purpose the Executive issued a proclamation on the 8th of December, 1863,1 inviting the people there living to form loyal governments under condi- I. 13 Statutes at Large, 738. no MILITARY GOVERNMENT AND MARTIAL LAW. tions set forth in the proclamation. This, like the Emancipa- tion Proclamation, was clearly a war measure. In Louisiana and Arkansas governments were formed accordingly early in 1864, and in Tennessee early in 1865. To the State executives thus chosen were given the powers theretofore exercised by the military governors. This was simply a development of the, plan begun by the President two years previously in the appointment of these latter officials. It possessed this ad- vanced and important additional feature of republican gov- ernment as contrasted with its predecessor — namely, that the new governments were organized, the officisls to carry them on appointed — apparently, at least — by the people governed, instead of by the commander-in-chief of the army. But the difference was merely apparent and nominal, not real. Each in fact rested only on the bayonet. Neither could have existed for a day if the military support of the nation had been withdrawn; and herein lay the weakness of the Presi- dent's plan for establishing civil government in districts which were declared to be in insurrection. 1 In fact, the governments thus organized were never recognized by Con- gress, representatives and senators chosen thereunder being denied seats in the respective houses. They were, however, apparently recognized by the Supreme Court, but as de facto governments only, organized by the President in virtue of his authority as commander-in-chief , 2 the court remarking that the adoption of a constitution during the war, under military orders, and the election of a governor, did not affect the military occupation in the judgment of the national authorities. 3 88. Those were the last governments organized while the war was flagrant in territory occupied by rebels treated as belligerents ; and they illustrated the extreme development of a policy looking to the conciliation of conquered subjects. I. Twenty Years in Congress, Blaine, Vol. 2, p. 174. 2. Texas v. White, 7 Wallace, 730. 3. Handlin v. WicklifF, 12 Wallace, 174. AGENTS FOE CARRYING INTO EXECUTION. Ill They were the first efforts directed to a reconstruction of State governments over insurgent territories. Their organi- zation caused the first decided antagonism between the Ex- ecutive and Congress growing out of the conduct of the war; a cloud no bigger than a man's hand, but of evil portent, the precursor of a storm that well-nigh swept a succeeding President from his seat through the extraordinary measure of impeachment, and immutably determining that ultimate power under our system of government rests in the people, to be ex- ercised through their representatives in the two houses of Congress. 89. In Cuba, after the Spanish sovereignty was extinguished in 1899, a civil administration was inaugurated, but it was a creature wholly at the will of the President, the better to subserve the policy of the United States Governmenc. It was intended to placate the people and render easier the task of the military governor. The history of the world furnishes, perhaps, no equally signal instance of national and disinterested generosity as that here evidenced towards the embryo Cuban republic. The military government in Porto Rico made use of civil administration only as 3 handmaid. This island was very soon in condition to be taken over bodily by the civil power under act of Congress. 90. It was in the Philippines that the problems growing as incidents out of the Spanish War proved most difficult to solve. The military governor early instituted local govern- ments, endeavoring in this way to give the people object- lessons of national good- will. A judiciary was then set up; the spheres of operation of the civil pdministration were gradually extended. All this took place wholly by the co- operation of the military and the people of the country, mostly natives. Two years after the occupation the Civil Com- mission sent out from the United States began to lay the foundation for that administration which one year later (July 4, 1901) superseded the military in all except the most 112 MILITARY GOVERNMENT AND MAETIAL LAW. turbulent districts. The solicitude of the National Government here evidenced to lay a deep foundation in the affections of the Philippine people stands without a parallel. 91. The British authorities in South Africa from 1899 to 1902 organized with great care an elaborate system for ex- tending military jurisdiction over the country. The rebellious subjects of Cape Colony and Natal were treated as public enemies making war on the mother country and at the same time as rebel subjeccs. The burghers were treated as public enemies alone. Over the former, civil jurisdiction was main- tained PS far as practicable, but it gave wry, at the first touch of conflict, to the military jurisdiction. Effort was made to anticipate every case that could arise in carrying this mil- itary jurisdiction into effect, so that the people as well as officials of every grade should understand their duty, rights, obligations — how these were to be performed and conserved, and how those in authority were to enforce that authority and thus guard public interests. In cotu-se of time there grew to be great similarity between the methods resorted to by the British here and the Americans in the Philippines, as the enemy in each case adopted finally the guerilla system of tac- tics. The former, howevfer, were not so much influenced by political considerations at home as the latter, and consequently were in a position to conduct the war on more strictly military principles. 1 I. Papers relating to martial law in South Africa, presented to Par- liament by command of His Majesty, London, 1503. CHAPTER Vlll. Ali^ Inhabitants Enbmibs; I^bvies en Massu. 92. When war exists between nations, all the subjects of one are, in contemplation of law, enemies of the subjects of the other. 1 In this particular custom and principle are in accord. Enemies continue such wherever they happen to be. The place of abode is of no consequence here. It is the political ties which determine the character. Every man is, in contem- plation of law, a party to the acts of his government, which is the representative of the will of the people and acts for the whole society. This is the univers d theory. It is not meant that each citizen of one attacks each subject of the other bel- ligerent; this he may not do without governmental authoriza- tion and according to the" customs of war; the most direct effect is to shut off friendly intercourse. It makes no differ- ence as to the belligerent character impressed upon the people whether the government has duly proclaimed war, with all the formalities of medieval or more recent times, or not pro- claimed it at all, or whether it be an act of self-defense simply, or result from the suppression of a rebellion. 2 The theory that war can not be lawfully carried on except it be formally proclaimed is, as before remarked, now justly exploded. 93. Although all the members of the enemy State may lawfully be treated as enemies in war, it does not follow that all may, be treated ..■.like. Some may lawfully be destroyed, but all may not be, independently of surrounding circum- stances. 3 For the general rule derived from the law of Nature is still the same, — namely, that no use of force against an enemy I. Manning, p. 166; Woolsey, Sec. 125; American Instructions, Sec. I, clauses 21, 23; Biuntschli, I., Sec. 2. 2. Kent, i, p. 55; 2 Black, 635. 3 Bluntschli, 1., Sees. 21, 33, 38. "3 1 14 MILITAET GOVERNMBJ^T AND MABl'XAL LAW. is lawfiU, unless it be necessary to accomplish the purposes of the war. As a rule, all who are simply engaged in civil pur- suits are exempt from the direct effect of belligerent operations, unless they abandon their civil character and are actually taken in arms, or are guilty of some other misconduct in viola- tion of the usages of war, whereby they forfeit their immunity. The persons of members of the municipal government, women and children, cultivators of the soil, artisans, laborers, mer- chants, men of science and letters, are brought within the opera- tion of the same rule; es are in fact all those who, though tech- nically enemies, take no part in the war, and make no re- sistance to our arms.i So long as these pay the military contributions which may be imposed upon them, and quietly submit to the military authority of the government, they are permitted to continue in the enjoyment of their property and the pursuit of their ordinary vocations. This humane policy greatly mitigates the evils of war ; and if the commander who enforces military government maintains his army in a proper state of discipline, protecting those who, for a pecuniary consideration, will supply his troops with the natural and industrial products of the country, the great prob- lems of an efficient transportation system and an abundant commissariat will be greatly simplified, and the army be spared many of the dangers incident to a position in a hostile country. 2 It may be that this policy is not always practicable. Pro- tracted hostilities lead, as a rule, to the enforcement of the maxim that "war must support war" as a military necessity. Yet it should not be hastily adopted, for experience has shown that when practicable the milder rule generally is the wiser. 3 "My great maxim," said Napoleon, "has always been in war, as well as in politics, that every evil action, even if legal, can I. Wheaton, Part IV., Sec. 345 ; Instructions U. S. Armies in the Field, Sec. I, clauses 23, 24, 27; Manning, p. 204. 2. Halleck, Chap. 18. Sec. 3. 3. Scott's Autobiography, p. 550; Vattel, Book iii., Chap. 8, Sec. 147; Bluntschli, Laws of War, I., Sec. 59. ALL INHABITANTS ENEMIES J LEVIES EN MASSE. H5 only be excused in case of absolute necessity; whatever goes beyond that is criminal." 94. In his proclamation of August ii, 1870, on entering France, King William said: "I wage war against French soldiers, not against French citizens. These, therefore, will continue to enjoy security for person and property so long as they do not, by committing hostile acts against the German troops, deprive me of the right of affording them protection." This exemption from the extreme rights of war is confined to those who refrain from all acts of hostility. If those who would otherwise be considered non-combatants commit acts in violation of this milder rule of modern warfare, they subject themselves to the fate of the armed enemy, and frequently to harsher treatment. If some thus transgress, and they can not be discovered, the whole community frequently suffers for the conduct of these few. In the Frpnco-German War it was a common practice for the Germans to arrest and retein in cus- tody influential inhabitants of places at or near which bridges were btuned, railroads destroyed, etc., by unknown parties within occupied French territory. 95. But moderation towards non-combatants, hov/ com- mendable soever it be, is not absolutely obligatory. If the commander sees fit to supersede it by a harsher rule, be can not be justly accused of violating the laws of war. He is at liberty to adopt such measures in this respect as he thinks most conducive to the success of his affairs. How important it is, therefore, on the ground of policy, even if higher moral Note. — Citizens who accompany an army for whatever purpose, such as sutlers, editors or reporters of journals, or contractors, if captured, may be made prisoners of war and detained as such. The monarch and mem- bers of the hostile reigning family, male or female, the chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army and its gov- ernment, are, if captured on belligerent ground, and if unprovided with a safe-conduct granted by the captor's government, prisoners of war. [Instructions for Armies in the Field (G. O. 100, A. G. O., 1863).] See also Bluntschli's Laws of War, I., Sec. 3 Il6 MILITARY GOVERNMENT AND MARTIAL LAW. considerations be lost sight of, that non-combatants maintain strictly their character as such. Their happy lot, amidst war's desolation, is due to the grace of the conqueror. If, therefore, he have cause to suspect the good faith of the in- habitants of any place or district, he has a right to adopt meas- ures which will frustrate their plans and secure himself. He is responsible only to his own government. 96. The customs of modern warfare, as well as chivalric sentiments, prompt soldiers to treat women with all possible consideration. The commander who ruthlessly makes war upon the gentler sex, acting towards them with unnecessary harshness, cannot escape the stigma attaching to such conduct in the eyes of the world, and may find himself proscribed for so doing by his enemy. While, however, it is true that women are protected in the midst even of active hostilities, it is only on the implied condition that they will in every respect so con- duct themselves as to merit such generous treatment. They must not forget that they owe their fortunate position to the kindness of the conqueror. But if they adopt a course plainly showing insensibility to the kindness shown them, either by overt acts or secret plottings, he is justified in treating them more rigorously. Kven women and children mij be held under restraint if circumstances render it necessary in order to secure the just objects of the war. If the commander has good and sufficient reasons for departing in this regard from the rules of politeness and the suggestions of pity, he may do so without being justly accused of violating military customs. 97. The success of his arms is the first object of the con- queror. He owes to his government the duty of securing that success by every means known to the laws of war. Beyond what they permit, his conduct should not be signalized by severity. Each case, as it arises, must be judged by the attending circumstances, the means employed, and the danger .they were designed to guard against. The re- sponsibility of the commander is always great. His conduct is not to be hastily condemned. His acts are often influenced ALL INHABITANTS ENEMIES J LEVIES EN MASSE. 1 1 7 b}' reasons not generally known or which it would be easy or wise to explain. It is an extreme measure, but it mpy be some- times justified, to starve a belligerent enemy. And if, to save his own army, the besieged drives forth non-combatants — women and children — forcing them upon the enemy's mercy, it can not be regarded as violating the laws of war. i 98. The rule that war places every individual of the one in hostility to every other individual of the other belligerent State is equally true whether it be foreign or waged against rebels treated "as belligerents. The latter branch of the rule Note. — The measures taken by Siichet to force the Spaniards to sur- render the citadel of the fortress of L,erida, Valencia, Spain, well illustrate the barbarities practiced under the laws of war, when commanders for- get the claims of humanity. When the Spanish troops retired into the citadel, they left the inhabitants behind them in the city. "The French columns advanced from every side, in a concentric direction, upon the citadel, and, with shouts, stabs, and musketry, drove men, women, and children before them, while the guns of the castle smote friend and foe alike. Then, flying up the ascent, the shrieking and terrified crowds rushed into the fortress with the retiring garrison and crowded the sum- mit of the rock; but all that night the French shells fell amongst the hapless multitude, and at dayUght the fire was redoubled and the carnage swelled until Garcia Conde (the Spanish commander), overpowered by the cries and sufferings of the miserable people, hoisted the white flag. Thus suddenly was this powerful fortress reduced by a proceeding, politic indeed, but scarcely to be admitted within the pale of civilized warfare. For though a town taken by assault be considered the lawful prey of a licentious soldiery, this remnant of barbarism, disgracing the military profession, does not warrant the driving of unarmed, helpless people into a situation where they must perish from the fire of the enemy unless a governor fails in his duty. Suchet justifies it on the ground that he thus spared a great effusion of blood which must necessarily have attended a protracted siege, and the fact is true. But this is to spare soldiers' blood at the expense of women's and children's, and had Garcia Conde's nature been stern, he, too, might have pleaded expediency, and the victory would have fallen to him who could longest have sustained the sight of mangled infants and despairing mothers." (Napier's Peninsula War, Book 10, Chap. 3, Vol. 2, p. 56.) I. Instructions U. S. Armies in the Field, Sec. i, pars. 17, i?. 1 1 8 MILITARY GOVERjNMENT AND MARTIAL LAW. has been affirmed in repeated decisions of the Supreme"Court of the United States, which also establish the integrity "of the main proposition. "The rebellion against the Union," it was observed in one case, "is no loose, unorganized insurrec- tion having no defined boundary or possession. It has a boundary which can be crossed only by force — south of which is enemies' territory, because it is claimed and held in pos- session 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. This court can not inquire into the personal character of individual inhabitants of enemy territory. We must be governed by the principle of public law, so often announced from this bench as applicable to civil and international wars, that all the people in each State or district in insurrection against the United States must be regarded as enemies, until by the action of the Legis- lature and the Executive, or otherwise, that relacion is thor- ougMy and permanently changed." i The decisions of the court, extending over the period of the Civil War and after- wards, definitely settled as principles of law that the district of country declared by the constituted authorities to be in insur- rection against the United States was enemy territory; and that all the people residing within such district were, according to public law and for all purposes connected with che prose- cution of the war, liable to be treated by the United States, pending the war and while they remained within the lines of the insurrection, as enemies, without reference to their personal sentiments and dispositions. 2 The commander who is endeavor- ing to suppress a rebellion will, so far as it can wisely be done, distinguish between the loyal and the disloyal citizen. Sound policy will dictate this course to the legitimate government. It is in consonance with the preceding opinions of the Supreme I. Prize Cases, 2 Black, 674; 2 Wallace, 419; Woolsey, Sec. 123. 2. Ford V. Surget, 97 U. S., 604; Williams -v. Bruffy, 96 U. S., 176; 2 Black, 674. ALL INHABITANTS ENEMIES J LEVIES EN MASSE. IT9 Court, and the observance of the principle has been enjoined upon the United States armies in the field. "Justice and ex- pediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war as much as the common misfortune of all war admits. He will throw the burden of the war, as much as lies within his power, on the disloyal citizens of the revolted portion or province, subjecting them to a stricter police than die non-combatant enemies have to suffer in regular war ; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate govern- ment, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government. Whether it ' be expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide."! Distinctions between the loyal and disloyal of rebellious districts will, 8s a rule, be regulated through the leg- islative action of thp legitimate government. While the power to CErry on war carries with it every incidental power nec- essary to render it effective sanctioned by the law of nations, it can not be doubted tha t Congress has a right, when questions of governmental policy are concerned, to prescribe regulations limiting and directing the discretion of the Executive. 2 Such regulations, in so far as they discriminate between sub- jects in insurgent territory, generally relate to property, ap- propriating that of the disloyal while so far as practicable protecting that of ^he loyal from the common lot of war. 3 99. The rule that certain of the enemy's subjects are to be treated as non-combatants gives rise to the correlative duty on their part to refrain from acts of hostility. 4 This obliga- I. Instructions for Armies in the Field, Sec. 10, clauses 7, 8. 2. Brown v. U. S., 8 Cranch, 149. 3- A-ct August 6, 1861, 12 Statutes at Large, 319; July r/, 1862, ibid., 591; March 12, 1863, ibid., 820. 4. In- structions U. S. Armies in the Field, Sec. 4; BluntschU, Laws of War, I., Sec. 1 34. J 1 20 MILITABY GOVEENMBNT AND MARTIAL LAW. tion is enforced with great rigor by the dominant power. Inhabitants of the country militarily occupied are not per- mitted to make war as they please, being soldiers one day and engaged in peaceful pursuits the next. In the instructions for United States armies such persons are called war rebels. The conduct of the Filipinos for several years subsequent to 1898 brought them within this category very largely. 100. In 1 87 1 the German governor of Lorraine ordered, in consequence of the destruction of the bridges of Fontenoy on the east of Toul, that the district included in the govern or -gen- eralship of Lorraine should pay an extraordinary contribution of 10,000,000 francs by way of fine, and announced that the village of Fontenoy had been burned. In October, 1870, the general commanding the second German army issued a procla- mation declaring that all houses or villsges affording shelter to franc-tireurs would be burned, unless the mayor of the com- munes informed the nearest Prussian officer of their presence immediately on their arrival in the communes. All communes in which injury was suffered by railways, telegraphs, bridges, or canals were to pay a special contribution, notwithstanding thet such injury might have been done by others than the inhabitants, and even without their knowledge. A general order was issued in August, 1870, affecting all territory militarily occupied by the Germans, under which the communes to which any persons doing a punishable act belonged, as well as those in which the act was carried out, were to be fined for each offense in a sum equal to the yearly amount of their land-tax. 1 1 01. The right of making war, as before remarked, rests with the sovereign power of the State. Subjects can not take any independent steps in the matter. They are not permitted to commit acts of hostility without either the orders or ap- proval of their government. 2 If they assume this responsi- bility, they are liable to be treated as banditti. I. Hall, p 433. 2. Woolsey 5th edition, Sec 125. ALL INHABITANTS ENEMIES J LEVIES EN MASSE. I2l As a rule, those so authorized are given distinctive uniforms, are organized into military bodies, and pass under the designa- tion of troops. The uniform, however, is not a necessary fea- ture, nor is a particular organization even, that the enemy's forces shall be entitled to be considered legitim?te. Many and sufficient causes may prevent the wearing any distinctive uniform. The organization of the forces may frequently change. Neither is considered a matter of prime importance, therefore, in determining whether the enemy are entitled to every consideration extended to combatants under the laws of war. But it is insisted that they shall be regularly authorized and commissioned by their government, i To this rule no ex- ception is admitted. And the necessity of a special order to. act is so thoroughly established that, even after a declaration of war between two nations, if peasants without governmental 1. Hague Conference, Sec. i, Chap, i, Art. II. Note. — After the capture of the city of Atlanta, Georgia, in 1864, by the Union forces, the Federal commander removed the citizens from that city. The reasons for this extreme step, which, however, was justified by the laws of war, were as follows: • r. AH the houses were wanted for military storage and occupation. 2. To enable a contracted line of defense to be established, which would be capable of defense by a reasonable force ; and this would render destruction of exterior dwelling-houses necessary beyond this proposed line. 3. The town was a fortified place, stubbornly defended, fairly captured, giving the captor extraordinaxy belligerent rights regarding it. 4. Keeping the people in the city would necessitate feeding them, soon thus draining the conqueror's commissariat. 5. The people within would be keeping up correspondence injurious to the Union cause with those without the city. 6. To govern the people would take too large a portion of the com- batant conquering force. Every precaution was taken to make the removal of the people as agreeable to them as possible. They were given transportation for them- selves and a reasonable amount of personal baggage, and they were care- fully guarded until they were placed within the protective power of the enemy's forces, which cooperated, under protest, in the proceeding. (Sherman's Memoirs, Vol. 2, p. 118.) 122 MILITAHT GOVERNMENT AND MARTIAL LAW. sanction commit hostilities the enemy shows them no mercy, but hangs them up as he would so many robbers, i 1 02. It is a well-established militar)' principle that pred- atory parties and guerilla bands are not legally in arms. The military name and garb which they may have assumed cennct give exemption to the crimes which they commit. 2 Some writers have indeed expressed views which if not at- tentively examined might lead to other conclusions. "An armed party," remarks Bluntschli, "which has not been em- powered by any existing government to resort to arms, is nevertheless to be regarded as a belligerent when it is organized as an independent military power, and in the place of the State honorably contends for a principle of public law." But ref- erence was here had to expeditions of certain free-corps having for their object political changes, d,nd whose operations were like those of regularly organized armies, like the Germans un- der Major Schill in 1809, and the Italian free-corps with which Garibaldi invaded Sicily and Naples in the war of 1859 and Tyrol in 1866. They were no mere predatory bodies, but their numbers, organization, mode of fighting, and the honorable objects they consistently kept in view entitled them, as Dr. Bluntschli contends, to be treated as regular belligerents. 3 Yet it is well known that Napoleon treated Van Schill's party as banditti, making war without proper authorization. It is a general principle of modern war that men or squads of men who commit hostilities, whether by fighting — inroads, whether for destruction or plunder, or by raids of any kind without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and civil avoca- tions, or with the occasional assumption of the semblance of peaceful pursiiits, divesting themselves of the character and I. Vattel, Book III., Chap. 15, Sec. 226. 2. G. O. 1, Dept. Mo., Jan. I, 1862, R. R. S., I., Vol. 8, p. 476; Scott's Autobiography, p. 574; Woolsey, Sees. 134, 142; Sec. 13, Chap. 4, note. 3. Bluntschli's Laws of War, 1., Sec. 3. ALL INHABITANTS ENEMIES; LEVIES EN MASSE. 1 23 appearance of soldiers, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but are to be treated summarily, i That was the course enjoined upon the Union Army during the Rebellion, and con- formed to the practices of modern war generally. The French pursued that course in Spain. Wellington did the same in France, while in 1870-71 the Germans adopted the same stringent measures against the French franc-tireurs. A notice at St. Michel declared that either franc-tireurs or other persons bearing arms, but not wearing uniforms, so as to distinguish them from the civil poptdation, were, by the Prussian laws of war, punishable with death. The policy indicated in this notice was general, and was enforced with unbending severity. 2 But it led, during the last days of the unequal struggle be- tween France and Germany in 1870-71, after the regular armies of the former were captiured or nearly dispersed and irregulars were largely depended on, to melancholy results, General Chanzy, a gallant French officer, wrote to the German commander at Venddme that he intended to fight without truce or mercy, because the fighting was no longer with legal enemies, but hordes of devastators. Nor can any government legalize guerilla practices. A regularly granted commission can not render such lawful, but if captured the perpetrators are visited with summary pun- ishment due their crimes. Their commissions would not shield them. Those commissions only auchorize acts "which are justified by military customs. 103. The experiences of the United States troops in the Philippines and the British in South Africa demonstrate how auno)dng, persistent, not to say really formidable guerilla war- fare may become even against regular troops. The feet that renders it difficult to the latter is the impossibility of telling friends from foes, or the preventing a man extending the right 1. Instructions Armies in the Field, Sec. 4, clauses 2-4. 2. Customs ol War Tovey, p. 75. 124 MILITAEY GOVERNMENT AND MAKTIAL LAW. hand of friendship one moment and shooting from pointof vantage the next, and so indefinitely. Concentration-camps are one effective instrumentality for handling the population, all beyond their boundaries being liable to be shot.. Both in South Africa and the Philippines every practicable attention was given to the comfort of those forced to stay within the boundaries of these camps ; this fact the official records show. Besides in South Africa Lord Kitchener established ef- fective lines of block-houses, joined by wire netting and other obstructions to free passage to confine the enemy within cer- tain limits where the troops could get at them. It was an expensive system; required 5,000 block-houses, varying in distance apart from 500 to 3,000 yards, requiring on an av- erage 10 men to each house, or 50,000 soldiers all together; buc the result vindicated the wisdom of the scheme and the pertinacity with which it was pursued. The extraordinary, not to say unprecedented leniency of the United States Government in dealing with the Filipinos after all semblance of regular fighting was abandoned by the latter and guerilla practices alone resorted to, must have sur- prised the civilized world. The chameleon character of these people just referred to — pretended friends one moment, ene- mies in ambush the next — placed them outside the pale of civilized warfare and justified severest measures of repression. The measure of mercy towards them was filled to overflowing. While this was true, there were some sporadic cases of cruelty practiced upon the natives by the soldiery- in violation of the 1 iws of war, which pc-emptorily forbid torture. The disposition to indulge such practices arose probably out of the diverse policies of the two parties contestant, the United States pursuing one of beneficence, even in derogation of its rights under the laws of war, the Filipinos piirsuing their cotu'se of treachery and unquenchable hate in utter disregard of these laws. As that which was legitimate was not availed of, to meet this course of savagery the illegitimate crept in. ALL INHABITANTS ENEMIES; LEVIES EN MASSE. 125 104. States sometimes attempt to justify subjects who make war in an irregular manner. But the practice is in- flexibly condemned by modern laws of war. Not because those so engaged are necessarily bent on crimes; on the con- trary they may be actuated by the most patriotic motives; but because each party has a right to know who his enemy is, and besides, if hostilities so conducted were legelized, a too convenient cover would be furnished for all kinds of excesses. Under the customs of war, unless the troops have the authority of their State to act, their appropriating property is robbery, their taking life is miuder. Nor does the civil-law maxim that subsequent ratification has a retrospective effect, and is equivalent to a prior command, have here any application. The authorization must be prior in point of time to the hostile acts, otherwise they are crimes. The irresponsible doings of unauthorized bodies can not be given the sanction of war- fare regularlj' conducted. To do this would be to confound all distinctions between right and wrong. No nation can afford to do this unless it has resolved to revert to the prac- tices of barbaric ages, i 105. In the Franco-German war of 1870-71 the German commander-in-chief issued a proclamation requiring an au- thorization for each individu.'l. "Every prisoner," it was said, "who expects to be created as a prisoner of war, must prove his character as a French soldier by an order issued by the lawful authorities and directed to him showing that he has been called out and incqrporated into the ranks of a military corps organized by the French government." 106. An important distinction is made between hostile acts of guerillas and of levies en masse, called into the field by their government. 2 The leaders of the latter, as a rule, are regu- larly commissioned, and all act under proper authoiity. Such masses are not in the same category before the law with those I. Halleck, Chap. 16, Sec. 8; Kent, I., pp. 94, 96; Lieber's Miscel- laneous Writings, Vol. 2, "Guerilla Parties"; see also Dr. Bluntschli, Laws of War, V.; also I , Sees. 61, 6ia. 2. Hall, pp. 474-477. 120 MILJTAJtY GOVERNMENT AND MARTIAL LAW. who, self -authorized, presume to engage in hostilities. It is true that levies en masse will seldom if ever be uniformed ; this might be impracticable, and to expect it might be un- reasonable. Their organization may, and generally will, be imperfect. Yet they have that in their favor which vitally distinguishes regulars from irregulars, namely, the previous authorization of their government to wage war by recognized methods. So long as they conduct war upon proper principles, their appearing on the field is not a just cause of complaint. On the contrary, instead of subjecting themselves to ppins gnd penalties for nobly defending their country's rights and vindicating her honor, they will deserve and receive every consideration from a generous foe. But to become entitled to be treated thns,- levies en masse must conduct hostilities in accordance with the laws of war. They can not be soldiers one day, the next ht engaged in the peaceful pursuits of life, and the day after aga^n be found in hostile array. Such con- duct will inevitably class them as guerillas and banditti.. It will forfeit the respect with which the enemy may have re- garded them, and call down upon their heads a well-merited vengeance, i ' 107. The part which levies en masse must act is full of difi&- culties. That they have no distinct uniform, no firmly settled organization, no system of supply, whether of provisions, clothing, arms, and ammunition, or means of transportation, renders it extremely difficult for ihem lung successfully Lo keep the fie'd. Yet it is necessary that they conform in their mil- itary operations to the well-recognized practices of modern warfare. If they do not, they are in no wise distinguishable from those irregulars who when apprehended maj'- be sum- mprily dealt with. And this renders it advisable before a State calls out its subjects en masse to consider well not only the hoped-for advantages, but also the possible evil results which may follow such a proceeding. If, as they are likely I. Bluntschli, Laws of War, I., Sec. 6. ALL INHABITANTS ENEMIES; LEVIES EN MABSE. 127 to do, under the pressure of sustained effort, the levies break up, disincegrate, and scatter into disorganized, illy-assorted, and feebly-commanded bands, demoralization ensues, love of plunder indifferently of friend or foe supplants the prompt- ings of patriotism, the wnr becomes irregular on their part, forfeiting to them the protection due to their former character. Considerations similar to these no doubt led the elegant and philosophic Napier, when narrating the efforts of Spain to repel invaders from her soil, to make the remark that, to raise a whole people against an invader may be easy, but to direct the energy thus aroused is a gigantic task, and, if misdirected, the result will be more injurious than advantageous. "That it was misdirected in Spain," continues he, "was the opinion of many able men of all sides, and to represent it otherwise is to make history give false lessons to posterity. Portugal was thrown completely into the hands of Lord Wellington; but that great man, instead of following the example of the supreme junta and encouraging independent bands, enfoiced military organi^ zation upon totally different principles. The people were, indeed, called upon and obliged to resist the enemy, but it was under a regular system by which all classes were kept in just bounds, and the whole physical and moral poweir of the nation rendered subservient to the plan of the general-in- chief."! 1 08. It is when levies en masse are scattered, as they are so apt soon to be through inherent weakness due to want of proper organization and supply system, that habits of license, violence, and disrespect for rights of property are quickly contracted, and render their members unfit for the duties of citizens. The efforts of disconnected bands avail nothing of permanent value to the State in the face of a regularly organ- ized and well-directed enemy; while their members, subsisting by force off the resources of the country, strike far greater terror to unarmed friends than to the armed foe. I. Peninsula War, Book IX., Chap, i 128 MILITARY GOVERNMENT AND MARTIAL LAW. 109. The requirement that levies en masse or soldiers of any description shall wear some distinguishing mark of dress to show that they are combatants can never be enforced. 1 Moreover, it is not so necessary as is generally thought. This was demonstrated in the American Civil "War from 1861-65. The rebels had a uniform, prescribed by their regulations, but circumstances did not permit of its being worn except by an individual here and there. The great body of the rebel armies — hundreds of thousands — were dressed in any way that was convenient. The only discinctive feature that could be said to characterize their clothing was that the general effect was a peculiar shade of brown, familiarly known as "butternut." This- want of distinctive uniform was often the cause of mis- takes being made by members of the opposing forces of a more or less serious nature; but as it was a recognized fact that the rebel government could not clothe its troops any better, the Federal commanders soon ceased to expect it. As a result a particular style of clothing, or special mark apparent in the soldiers' garb, was no longer a test as to whether they were en- titled to be treated as combatants. If they were acting under competent authority and observed the customary laws of war, it was sufficient; to have attempted to punish them for not being distinguished by some mark of dress would only have resulted in wholesale retaliations. Nor was this want of uniform in all cases confined to the rebel armies. In some instances the Federal troops, particularly the cavalry, at the end of a cam- paign, with less excuse than their antagonists, presented an appearance little if any better than the latter. In many cases the original uniform would be wholly gone, and its place sup- plied by garments of any hue picked up at random; while nothing was more corrimon on such occasions than to have the so-called uniform pieced out half by rebel "butternut" and half the "Union blue." This was particularly so in the western field of operations. If the enemy had been so fortunate as to raid a Union clothing depot, they would be similarly decked 1. Bluntschli, Laws of War, I., Sec. 61. ALL INHABITANTS ENEMIES; LEVIES EN MASSE. 1 29 out; when this occurred it was sometimes difficult to distin- guish friend from foe. no. There is no impropriety in s State, if it so desires, reljang for its fighting force upon the precarious services of levies en masse rather than regularly organized armies, i That such State is thereby a loser is not a rational, nor is apt to be an actual, cause of complaint to its enemy. The adoption of this policy is purely a matter for each State to determine for itself. It is true that it is sometimes claimed that the em- ployment of such levies is contrary to the laws of war. But if these assertions be examined into it will be found that those who maintain this position are actuated by no higher motive than self-interest. They are those who support large standing armies, train the entire able-bodied male population for war, and have a system of mobilization worked out practically during peace whereby the regularly organized armies, em- bodying the whole armed strength of the nation, can quickly be placed in the field in time of war. This is the policy of the more important States of continental Europe. With them levies en masse axe. not favored. And yet France in 1814, and again in 1871, resorted to them; as in fact every people of spirit would always do in the last extremity. On the other hand, those States will be found to maintain the right t > levy such masses which have smaU standing armies or have not i'.dopted the principle of universal service in the ranks. These States are far the more numerous of the two classes, and em- brace all nations except those of Central Europe. It will not be denied that it is to the interest of States with small standing armies to maintain the legality of levies en masse. If attention be confined, therefore, to this narrow view of the subject, these States have no advantage in the argument over those who maintain the opposite opinion, for each looks no further than personal interest. But those who support the affirmative 1. Bluntschli, Laws of War, I., par. 89; Instructions Armies in Field, Sec. 3, pars. 4, 5; Hague Conference, Sec. i. Chap, i, Art. II (G. O. 52, A. G. O., 1902.) 9— 130 MILITAHY GOVEENMENX AND MAETIAIi LAW. of the question have, in addition to self-interest, this cogent circumstance in their favor, namely, the fact that every mil- itary nstion, large and small alike, when driven to extremities, resorts to levies en masse to defend the homes and firesides of its people if expediency prompts the measure. Under these circumstances no na tion has hesitated to resort to levies from conscienticus scruples. And on principle the right to employ levies en tnasse can not successfully be contro- verted. No independent State, unless it be agreeable to itself, is obliged to keep one soldier in its employ. Its military sys- tem is a matter of internal policy. Its military force may be regulars or militia, or any other the State may deem to be proper. It is true that, under the pressure of external circum- stances, as for instance, considerations affecting the balance of power among nations, a State may be compelled to enter into engagements which cm: tail her nd,tural freedom of action re- garding the character and number of her military forces. But we speak now of her rights as an independent State among the nations of the earth. As such she has a right to determine for herself what her military force shall be. She is answerable to other nations only to this extent, that when this force takes the field it shall cerry on hostilities according to the Hws of war. III. In arriving at a solution of the problem es to the char- acter of its military force, ihe geographical position of the State and the military policy of its neighbors ar; circumstances of the greatest importance. 1 Self-preservation is the first law of nature with States as with individuals. Each State adopts those measures of self-defense which, depending upon its situa- tion and the character of its own and of neighboring people, are best calculated to preserve its integrity ununpaired. The question is ho"w best to secure the safety of the State; each determines the question for itself. If it choose, in the first instance, to rely upon the efforts of a small standing army, supported by militia or volunteers, and ultimately upon levies en masse, it is its own concern. The right to adopt this policy I. 2 Wheaton, Part II., Sec. 63 ALL INHABITANTS ENEMIES; LEVIES EN MASSE. I3I is perfect. Its expediency is another question. In deter- mining upon this the greit difficulty of directing the fighting power of such masses with coherency and effect; the impos- sibility of making a prolonged effort with them; the embar- rassment, ever attending their supply and transportation; the danger of their melting away, becoming mere marauders at a time when they ars most needed, more dangerous to friends than foes,— r-are considerations not to be lost sight of by a State which depends upon levies en masse to sustain its honor, vindi- cate its rights, and redress its wrongs. 112. With regard to employment of levies en masse it may be said, after a most interesting and intelligent discussion of the subject since 1870, particularly at various conferences of learned bodies in Europe versed in the laws of war, that gen- eral opinion there expressed tends to maintain these proposi- tions: (1), thq,L in order to insure treatment as belligerents irregular troops must wear some distinguishing mark; (2) that they must be commanded by officers who are com- missioned by their government; (3), they must observe the laws of war. 1 Upon this point the American Instructions are as follows (Sec. 3, par. 4, 5) : "If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approych of a hostile army, rise, under a duly authorized levy, en mxisse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war. "No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. "If, however, the people of a country, or any portion of the same already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled co their protection." I. Manning, p. 207, Amos' note; Maine, pp. 168-176; Hall, pp. 474- 4T7; Bluntschli, I., Sec. 132; Hague Conference, Sec. i, Chap, i, Art. 1. (U. O. 52. A. G. O., 1902.) CHAPTER IX. Laws' Obligatory Within Occupibd Territory. 113. As territory subject to military government forms no part of the national domain unless by conquest, treaty, or appropriate legislation it becomes such, it follows that the laws of the United States, of their own force and rigor, do not extend over that territory. 1 Nor, by the law of nations, is either the civil or criminal jurisdiction of the conquering State considered as extending over such territory. Jurisdiction of the vanquished power is indeed replaced by that of military occupation, 2 but it by no means follows that this new jurisdic- tion is the same as that of the conquering State. It is usually very different in its character and always distinct in its origin. Hence the ordinary jurisdiction of the dominant State does not extend to actions, whether civil or criminal, originating in the occupied territory. As remarked upon one occasion by the Supreme Court of the United States : What is the law which governs an army invading an enemy's country.' It is not the civil law of the invaded country ; it is not the civU law of the conquering country; it is military law, the law of war, and its supremacy for the protection of the officers and soldiers of the army when in service in the field in the enemy's country is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty, s "In the event of e military occupa- tion," said Maine, "the authority of the regular gjvemment is supplanted by that of the invading army. The rule imposed by the invader is the law of war. It may in its character be either civil or military, or partly one and partly the other. I. 5 Opinions Attorneys-General, 58; 9 Opinions Attorneys-General, 140. 2. Maine, p. 179. 3- Dowxi. Johnson, 100 U. S., p. 170. 132 LAWS OBLIGATORY WITHIN OCCUPIED TEEEITORT. 1 33 The rule of military occupation has relation only to the in- habitants of the invaded country." i 114. Tt is well settled that a foreign army permitted^ to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and .criminal jurisdiction of the place. 2 So much the more would an army invading an enemy's country be exempt from the jurisdiction of the latter. 3 On the other hand mil- itary government does not permanently oust the jurisdiction of the vanquished and ipso jacto substitute the national juris- diction of the occupying State. Such an effect is produced only by incorporation or definitive occupation. We refer here only to the jurisdiction of common law and the ordinary and usual cognizance of cases without in any manner dimin- ishing the rights derived from war and the measures necessary for the government of military occupation. In this respect there is no difference between a war in which the contending parties are independent nations and a war waged against rebels treated as belligerents. 4 For when a nation becomes divided into two parties absolutely independent and no longer acknowledging a common superior, the war between the par- ties stands on the same ground, in every respect, as a public war between two different nations. 115. The question here arises: What laws are obligatory upon the authorities enforcing military government? Broadly, the answer must be in the language just quoted of the Supreme Court, "The laws of, war." But practically the subject admics of more precise determination. The military commander, under military government, will derl with three classes of cases : First, those affecting the persons ahd property of the conquered, determining their rights, duties, and obligations ; second, those which concern, in a similar manner, citizens of the conqvtering State, either soldiers or others within the district occupied; third, those which affect citizens of neutral States similarly I. Maine, p. 179, 2. The Exchange, 7 Cranch, 139. 3. Coleman 1;, lenn., 97.U. S., 516. 4- 97 U S., 516-17; 100 U. S . 170. 134 MILIT.4JRY GOVERNMENT ANB MARTIAL LAW. situated. The laws which control in dealing with the first and last classes are those of war, absolutely; but, as to the second, the rule, upon examination, will be found to be somewhat different. ii6. As to the first class: It has been shown i that reten- tion of local laws, for the adjudication of local affairs in the subjugated district, is a matter within the discretion entirely of the conqueror. 2 It is hi$ act of grace. The rule is con- venient as well. It would be productive of the greatest con- fusion if a community who had been governed by one law should have that law, with which they are acquainted, sud- denly changed for another of which they are totally ignorant, as well PS of the tribunals which are to administer justice among them. They may be permitted, therefore,- to preserve their laws and institutions for the time, subject to modification at the will of the conqueror. Indeed, under the present rule, local laws remain in force until so modified. 3 This is a great amelioration of the former rule. By the severe practices of war, as carried on in ancient and indeed far down into modern times, the vanquished had no rights as against the victorious enemy. But under the softening influences of Christianity and an advancing civilization these stern laws of man in his natural and primitive state have been greatly ameliorated. These modifications are elastic and their practical applica- tion characterized by more or less severity, but in their general effect tliey are regarded as obligatory upon commanding gen- erds in the exercise of belligerent rights. For their observance the generals are answerable to their government, and the latter to the fr.mily of nations. I. Ante, Chap, 6. i. Kimball v. Taylor, Wood's. Reports, 2d La. Dist.; G. O. loo, A. G. O.1863, Sec. 2, clause 17. 3. Hague Conference, Sec. 3, Art. XLIII.; G. O. 52, A. G. O., 1902; 97 U. S. Rep., 509 et seq.; 100 U. S. Rep., 1 58 et seq. NOTC. — It lias been sssertefl that the authority of the local, -civil, and judicial administration is suspended, as of course, so soon as military occu- pation takes -jlace, although it is not usual for the invader to. take the LAWS OBLIGATORY WITHIN OCCUPIED TBREITOET. 1 35 Immediately upon the military occupation these laws cease that pertain to prerogatives of the former government; so also do rights vested in individuals, but which rest only on prerogatives of the former sovereign, i 117. Ostensibly, at least, war is entered upon either to obtain justice from an independent power or to enforce national supremacy against rebels. Wer existing, each belligerent has a right, as against the other, to do whatever he finds necessary to the attainment of the end he his in view. He his a right to put in practice every measure that is necessary in order to weaken the enemy, and may choose the most efficacious means' to accomplish this pm-pose. But, while strictly pursuing this ■coiu-se, he should listen to the voice of mercy. The lawfulness of the end, and the right to the necessary means to attain it, do not, in the modern view, give the conqueror a right to ebuse his power. Right goes hand in hand with necessity and the ■exigency of the case, but never outstrips them. 118. To this effect are the American Instructions: "Mar- tial law" [military government], it is therein stated, "in a hostile country consists in the suspension, by the occupying whole administration into his own hands. The latter branch of the rule doubtless conforms to general experience, but the former it is believed •does not. So far from the local, civil, and judicial administration being suspended, as matter of course, upon the asf?umption of control by the military authorities of the invader, they contirue, if they so elect, in the full execution of tlieir duties unle.ss the concjueror by some positive act notifies them to the contrary, or in some unmistakable manner gathers the authority into his own hands. Upon this point the American Instruc- tions provide: "All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law [miUtary government], ■unless interrupted or stopped by order of the occupying mihtary power; but ail the functions of the hostile government— legislative, executive, or administrative — whether of general, provincial, or local character, cease under martial law, or continue only with the sanction, or, if deemed nec- -essary, the participation of the occupier or invader." (Sec. t, par. 6.) I. 22 Opinions Att'y-Gen., 527-28^ 548, 574; 23 Ibid., 226; Magoon, _497; Ante, Chap. 6, Sec. 67. 136 MILITAKY GOVERNMENT AND MARTIAL LAW. military authority, of the criminal and civil law, and of the do- mestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. "The commander of the forces may proclaim that the ad- ministration of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military authorities.! "On occupying a country an invader," says Hall, "at once invests himself with absolute authority, and the fact of occu- pations draw with it, as of course, the substitution of his will for previously existing taw whenever such substitution is reasonably needed, and also the replacement of the actual civil and judicial administration by military jurisdiction. In its exercise, however, this ultimate authority is governed by the condition that the invader, having only a right to such con- trol as is necessary for his safety and the success of his opera- tions, must use his power within the limits defined by the fundamental notice of occupation, and with due reference to its transient character. He is therefore forbidden, as a general rule, to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community." 2" The word "forbidden" here used can probably only mean ♦hat the invader is under moral obligations. His superiors alone have authority to forbid his doing anything. 1 19. And not only the laws, but the courts for administering them are such as the conqueror may elect. They may be either the ordinary civil courts of the land, or wer courts, gen- erally styled in the United States service, military commissions and provost courts. "The most important power exercised by an invader occupying a territory," says Maine, "is that of punishing, in such manner as he thinks expedient, the inhab- I. Sec. I, par. 3. j.. International Law, p. 43 1 . LAWS OBLIGATORY WITHIN OCCUPIED TEERITORT. 137 itants guilty of breaking the rules laid down by him for se- curing the safety of- the army. The right of inflicting such punishment in case of necessity is undoubted; but the interests of the invader, no less than the dictates of humanity, demand that inhabitants who have been guilty of an act which is only a crime in consequence of its being injurious to the enemy, should be treated with the greatest leniency consistent with the safety and well-being of the invading army." i 120. When New Mexico was occupied by United States forces in 1846, there was established a judicial system, con- sisting of an appellate court constituted of three judges ap- pointed by the President, and circuit courts, in which the laws were to be administered by the judges of the superior or appel- late coiurt in the circuits to which they should be respectively assigned. The jurisdiction of the courts extended, first, to all criminal cases that should not otherwise be provided for by law ; second, exclusive original jurisdiction in all civil cases which should noc be cognizable before the prefects and alcaldes. Of the validity of these measures no question was ever raised during the period that the territory was held by the United States as conqueror. It would seem to admit of no doubt that during the period of its existence and operation this, judicial system must legally have displaced and superseded every previous institution of the vanquished or deposed political power which was incompatible therewith. 2 The validity of the judgments of these courts has been sustained by the Supreme Court of the United States, 3 — the principle upon which the latter court proceeded being that an order given in accordance with the laws of war, by virtue of the conqueior's right to be obeyed, should have the effect of law as to acts done under, his authority while still in force.* I. Page I So. 2. 20 How., 178. 3. 16 Howard, 164. 4. Hare's Amer. Const. Law, Vol. 2, p. 945. 138 MILITARY QOVEEJTMENT AND MAETIAL LAW. All United States military authoiities, wherever their con- quering arms have gone since the beginning of the Spanish War in 1898, have acted on this principle. ~'f^ 121. Wherever the armies of General Scott operated in Mexico there was not permitted the least interference with the administration of justice between native parties before the ordinary courts of the country. Trial of offences, one party being Mexican and the other American, was referred to im'litary commissions, appointed, governed, and limited, as nearly as practicable, in accordance with the law governing com-ts-martial in the United States service. The proceedings ware recorded, reviewed, approved, or disapprovad and the sentences executed like in cases of courts-martial. But no military commission was authorized to try any case clearly cognizable under the law by local courts. Further, no sentence of a military commission was permitted to be put into execution against any individual belonging to the American army which was not, according to the nature and degree of the offence as established by evidence, in conformity with known punish- ments in like cases in some one of the States of the United States. In so far as inhabitants of Mexico, sojourners and travelers therein, were concerned, the other parties to the trial being American, cognizance of causes by military commissions was confined to crimes known to the municipal laws of the States of the Union and to the unlawful acquirement of United States property from members of the invading army. A cer- tain kind of political offence affecting only inhabitants of the country was also made triable by militaiy tribunals, viz.: where prosecutions had been commenced before the civil com-ts of Mexico against members of the community on the allegation that they had given friendly information, aid, or assistance to the American forces, their prosecutors, when they could be apprehended, were brought before military commissions. 1 I . Appendix I. LAWS OBLIGATORY WITHIN OOODPIED TERRITORY. 139 122. The policy, here adopted by the American general worked like a charm. It won over the Mexicans by appealing to their self-interest, intimidated the vicious of the several races, and, being enforced with impartial rigor, gave high moral deportment and discipline to the invading army. The penetration of that army into the heart of the enemy's country, when we consider its small numbers and the resistance iten- countered due to the numerical strength of the opposing army, the great natural and artificial obstacles to be overcome, and the dictating peace from his captured capital, challenges ad- miration as a great military achievement. But we have the evidence of the commander himself that valor and professional science could not alone have accomplished all this with double the number of troops, in double the time, and with double the loss of life, without the adoption and carrying into execution these and other similar measures at once deterrent of crime in all classes and conciliating to the people conquered, i I. Scott's Autobiography, II., p. 540; Appendix III. Note. — We are informed by General Scott (Autobiography, Vol. 2, p 392) that he was prompted, in the first instance to draft the afterwards famous "Martial Law" order (see Appendix) before he left Washing- ton for the scene of hostilities, upon receipt of information from General Taylor, commanding in Mexico, that the "wild volunteers as soon as be- yond the Rio Grande committed with impunity all sorts of atrocities on the persons and property of Mexicans, and that one of the former from a concealed position had even shot a Mexican as he marched out of Mon- terey under the capitulation." He submitted the draft of the order to the War Department as a proper one to be promulgated by the general then commanding in Mexico to meet the case of such crimes. But it was silently returned to him as "too explosive for safe handling." Since those days the United States authorities have learned a great deal as to the rights of military commanders operating in enemy country. There was no reason why crimes occurring in Mexico in violation of the laws of war, such as perpetrated by guerillas, banditti, and other irregular bodies of the enemy, should not have been referred to military com- missions for trial, except that General Scott, in enumerating the offences that commissions could take cognizance of, did not mention such crimes. To meet these cases, of frequent occurrence, after the city of Mexico was I4P MILITARY GOVERNMENT AND MARTIAL LAW. 123. Thus far reference has been made only to courts and systems of judicature organized during military occupation of territory outside the boundaries of the United States. The same rules govern within territory wrested from rebels treated as belligerents. The decisions of the Supreme CoTirt of the United States have dispelled whatever doubts at one time existed on this subject. That they should have existed is not surprising when we recall the belief, long inculcated, that the Federal Government, however strong in conflict with a foreign foe, lay manacled by. the Constitution and helpless at the feet of a domestic enemy. 1 The constitutional right of Congress and the Executive Department to adopt ordinary war meas- ures for suppressing rebellion, under the circumstances here mentioned, was repeatedly affirmed. The war powers of the Government and its agents were pronounced equal to the emergency; and among others the power to institute courts, with both civil and criminal jiurisdiction, and military com- missions. 2 captured, and the enemy, driven from the field and almost dispersed, en- couraged marauding and predatory warfare of small parties on the lines of communication and detached posts of the American army, General Scott organized what were called councils of war, composed of not less than three officers. There was no necessity for the two kinds of courts, namely, councils of war and military commissions. Each was sufficient, had the commander but invested it with requisite powers, for the trial of all cases brought before both. There was this positive disadvantage in having both, that thereby confusion resulted when the character of the offences was such as made it questionable which court probably could as- sume jurisdiction. This could have been avoided by having one style of war court take cognizance of all offences not triable by courts-martial or the civil courts of the land. We have piofited by this experience. The council of war has dropjjed out of use in the United States; military com- missions have since performed the duties formerly devolving on both, and, as the only recognized war court, has received on an extensive field and in a vast variety of cases the sanction not only of executive, but of legis- lative and judicial authority. I. n Wallace, 331. 2. 100 U. S., 159; 9 Wallace, 133; 22 Wallace, 294; 20 Wallace, 393; 12 Wallace, 173; see R. R. S., I., Vol. 12, Part I., p. 52, for Gen. McDowell's stringent military commission order. LAWS OBLIGATORY WITHIN OCCUPIED TERRITORY. 14I "Although," said the Supreme Court in New Orleans v. Steamship Company, "the city of New Orleans was conquered and taken possession of in civil war waged on the part of the United States to put down an insurrection and restore tlie su- premacy of the National Government in the Confederate States, that government had the same power and right in the 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 a right to displace the pre- existing authority, and to assume to such extent as may be deemed proper the exercise by itself of all the powers and func- tions of government. It may appoint all the necessary officers and clothe them with designated powers, larger of smaller, ac- cording 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." 1 124. It were useless to record every instance illustrative of the exercise of war powers by the establishment of courts, military or civil, in conquered, rebellious districts. The great principle was first assumed and afterwards confirmed by de- cisions of the Supreme Federal Tribunal, that, limited only by • the usages of war, the authority of the President and military commanders in the premises was complete. 125. When General McClellan, in the prosecution of the Peninsular campaign, reached the vicinity of Yorktown, Va., he on April 7, 1862, issued orders for the regulation not only of his army under certain contingencies in enemy country, but of non-combatant enemies themselves in their relations with the members of that army. In doing this he took as a model the orders previously referred to, issued by General Scott in Mexico under similar circumstances of hostility. 2 I. 20 Wallace, 393-94; 2 Wallace, 417; 6 Ibid., i. 2. Appendix I. 142 MILITAEY GOVERNMENT AND MABTIAL LAW. Premising with the remark that the army had advanced to its then position for the purpose of compelling submisssion to the laws of the United States, and that extensive military operations were found necessary for the suppression of rebellion, the General announced that it was found absolutely necessary for the protection of the inhabitants and their property and the good order of the army to establish that unwritten code of law which civilization has provided for such exigencies. It was therefore ordered: "First, that martial law be, and the same is hereby, declared to exist in md about all places occu- pied by die forces of the army for any and every military pur- pose, and in and about all its moving columns and detachments of whatever kind. Second, that all acts committed where martial law is here declared to exist, either by officers, soldiers, or other persons connected with the army, or by inhabitants or other persons, which are commonly recognized as crimes against society, or which may be done in contravention of the , established rules of war, shall be punishable by a court or military commission. Third, among the acts that are made punishable are murder, rape, malicious personal injuries, arson, robberies, theft, and wanton trespass, including &lso all at- tempts to perpetrate such acts; provided, however, that no cause already cognizable by courts-martial shall be tried by military commissions. Fourth, military commissions under this order shall be appointed, governed, and conducted, their proceedings reviewed and their sentences executed as nearly as practicable in accordance with courts-martial; provided, that ail punishments under military commissions shall be of the description generally affixed throughout the United States to similar offences." i So far as practicable municipal laws of the district occupied and, all causes between the inhabitants thereof were not interfered with. The order was intended to be and was in fact a supplemental code rendered necessary by the new position of the army in enemy country and the re- I. G. O. 2, H. Q. Army Potomac; R. R. S., I-, Vol. ii, Part III., p. 77 ; see also R. R. S., I., Vol. 12, Part I., p. 52- LAWS OBLIGATOEY WITHIN OCCUPIED TEEKITOEY. 143 lations of the population to the members of that army. It need hardly be pointed out that the term "martial law" as here used, and as previously used by General Scott in Mexico, had not the signification given to it in this work, but was de- scriptive of the state of things which always exists on the theatre of an enemy's active military operations. The order was but the announcement, by the general commanding an invading army to all those in the territory militarily occupied, of the rules by which, within the limits pointed out, the mili- tary government which existed in fact and without announce- ment was to be regulated. 126. The course pursued by the United States commanders at Memphis, Tennessee, furnishes another instructive example of the exercise of military authority in conquered rebel territory, but under different circumstances. Memphis was a large, and especially from a strategic point of view, an important place. Its government involved the determination of many questions, civil, criminal, military. The population was implacably hostile when the city was captured, and they remained so. It had not the commercial advantages of New Orleans, and there- fore there was less to distract the attention of the people from the hardships of their surroundings and to allure them through the avenues of trade and resulting material prosperity, to a reconciliation with their conquerors. From the day of its occupation by Union forces until the end of the war the city remained, therefore, a camp, and the inhabitants liable to be subjected in every respect to summary military rule. 127. In those early days the authority of military com- manders under these circumstances was not fully understood. Nor is this surprising when it is recalled that political policy, varying from day to day, went hand in hand with the military measures for the suppression of rebellion. The Government moved in its career of conquest with the olive branch in one hand and the sword in the other. This made commanders un- certain as to the extent of their powers. Consequently, we find General Grant writing from Memphis soon after its captiure 144 MILITARY GOVERNMENT AND MARTIAL LAW. to the comrnander of the Department of Mississippi: "As I am without instructions, I am a little in doubt as to my au- thority to license and limit trade, punish oflfences committed by citizens, and in restricting civil authority. I now have two citizens, prisoners for murder, whom I shall have tried by military commission, and submit the findings and sentence to you. * * * There is a board of trade established to reg- ulate what goods are authorized to be received, and who are authorized to receive them. I think it will be necessary also to establish some kind of court to settle private claims." i 128. As the necessity for it became more apparent, the reins of government were gradually more firmly gathered into the hands of the military authorities. Orders were published re-opening trade and communication with the surrounding country, and prescribing rules in conformity with which travel in and out of the city should be conducted. As before men- tioned, the rents accumulating for houses of those who had left their homes to cast their fCrtunes with the enemy were directed to be paid to the United States Rental Agent, ap- pointed by the military commander. The commanding gen- eral did not assume authority to confiscate the rents nor did he seize them as booty of war; but, by his subordinates, col- lected and held them subject to such disposition as might be thereafter made of them by the decisions of the proper trib- unals. If, in his judgment, the measure added to the security of his own army, or diminished the enemy's resources, it would be difficult to show that it was not a proper military pre- caution, entirely consistent with the established rules of war. 2 129. Soon after occupation a general order was published, ;he object of which was to punish or restrain all disorders or crimes against the peace and dignity of the community. Pro- vost marshals were appointed, who were constituted the guar- dians of the peace, having at their command a suitable provost guard and also supervision of the city civil police force. A I. R. R. S., I., Vol. 17, Part II., p. 41. 2, Gates v, Goodloe, 101 U. S., 616. LAWS OBLIGATORY WITHIN OCCUPIED TEEEITORT. I45 military commission, composed of three army* officers, was organized. Civil offences committed by civilians were re- ferred, as usual, to civil courts. Civilians found lurking about the camps or military lines were ordered to be arrested and treated as spies. The hours during which all, both the military and civilians, were permitted out at night were regulated. The military commission was not at this early period of its existence given cognizance of civil causes. Its jurisdiction was limited to offences against the laws of war, and to all offences against military law or order not cbgnizable by courts- martial, whether committed by soldiers or others, i 130. Shortly afterwards another military commission was organized, composed of three members, to try all cases laid be- fore it by department, district, or post commanders, the pro- vost marshal general, or district provost marshals. Its juris- diction was limited to criminal offences. It might sentence to fine or imprisonment, or both, or send persons outside the mil- itary lines. All incidental powers, as enforcing attendance of witnesses, eliciting evidence, and securing bodies of prisoners, were given the commission to render their authority effective. A correct record was made in each case tried, subject to review by the department commander. 2 131. Thus far, at Memphis, no attempt had been made to adjudicate civil causes before military courts. Doubts existed as to the validity of such adjudication. 3 In 1863, however, the general commanding that city and district appointed a "civil commission," plainly from its origin a war court in the fullest sense of the term, with authority to determine causes of a civil nature that rtiight be referred to it. The civil author- ity here exercised was subsequently sustained by the Supreme Court of Tennessee, and decisions of the Supreme Court of the United States leave no room for doubt that, had the decision of the State court mentioned been appealed from, it would I R. R -S., 1., Vol. 17, Part II., p. 294. 2. R. R. S., I., Vol. 24. Part III., p. 1067. 3. 22 Wallace, p. 301 etseq.; Field. )., dissentient. 10— 146 MILITARif GOVERNMENT AND MARTIAL LAW. have been afiirmed. 1 "The right of a military occupant to govern," the Supreme Court of Tennessee held, "implied the right to determine in what manner and through what agency such government is to be conducted. The municipal laws of the place may be left in operation or suspended, or otJiers en- forced. The administration of justice may be left in the hands of the ordinary officers of the law, or these may be suspended and others appointed in their place. Civil rights and civil remedies may be suspended, and military laws and courts, and proceedings m&y be substituted for them, or new legal remedies and civil proceedings may be introduced. The power to create civil courts exists by the laws of war in a place held in firm possession by a belligerent military occupant; and if their judgments and decrees are held to be binding on all parties during the period of such occupation, as the acts of a de facto government, no valid ground can be assigned for re- fusing to them a like effect, when pleaded as res judicata before the regular judicial tribunals of the State since the return of peace." And it was held, accordingly, that a civil cause within its cognizance having been decided by the civil commis- sion appointed by the military commander, and, after the rein- statement of the regular civil tribunals, action having been brought before them on the same cause, plea of res judicata was valid and a bar to the action. 2 132. But the most instructive instances of the establish- . ment of courts in enemy territory was at New Orleans and in Louisiana. The courts themselves had various origins. Sub- sequently some of their decisions were reviewed by the Supreme Court of the United States, when the constitutional power of the President and of military commanders under him to or- ganize war courts, as well as the right of said courts to take cognizance of all causes, military, criminal, and civil, was fully sustained. 3 I. 22 Wallace, 276; 12 Wall, 173; 15 Wallace, 384. 2. 6 Coldwell, 391; 7 Coldwell, 341; contra, 12 Heiskell, 401. 3. 100 U. S., 15S; 9 Wal- lace, 123; 22 Wallace, 276; 20 Wallace, 394; 12 Wallace, 173; 15 Wallace, 384. LAWS OBLIGATORY WITHIN" OCCUPIED TBKEITOEY. I47 133. The principles announced by the commanding gen- eral when the city was captured as those which should govern him in repressing disorder and crimes and securing the ob- servance of law have been already mentioned, i 134. A military commission of not less than five officers of and above the rank of captain, with a recorder and legal ad- viser, was directed to be organized for the trial of all crimes and misdemeanors which by the laws of any State in the Union or the United States, or the law martial, were punish- able with death or a long term of imprisonment. The sen- tences of such commission were to be assimilated to those provided by such laws, regard being had to necessity for se- verity and prompt punishment incident to crimes and dis- orders arising from a state of war. And recognizing that the motives of men entered so largely as an element of the crimes cognizant by the commission, the commanding general directed that the rules of evidence of the English common law might be so far relaxed as to allow the accused to be questioned be- fore the commission to answer or not at his discretion. Charges were drawn and proceedings conducted substantially after the manner used in courts-martial. The proceedings, findings, and sentences were reviewed by the commanding general. The commission took cognizance of only the higher crimes and misdemeanors. It was without civil jiurisdiction. 2 So far as known, no question arose PS to the authority to appoint this •commission or the validity of its proceedings. 135. But the jurisdiction of the war courts was not to be restricted to criminal matters; civil afifairs were to be regu- lated. At the same time that the military commissions were organized an officer of the army was appointed provost judge of the city of New Orleans. This provost court took cognizance not only of criminal, but civil causes, among the latter one involving a judgment for $130,000. Objection being made that the court legally could not take jiurisdiction, the case I. Ante, Sec. 82; 2. R. R S., I., \ ol. 6, Part 1., p. 722. 148 MILITAEY GOVERNMENT AND MAUTIAL LAW. was finally appealed to Llic Supreme Court of the United States, where the following objections to the jurisdiction were urged; First, that its establishment was a violation of that section of the Constitution which vests the judicial power of the gen- eral Government in one Supreme Court and in such inferior courts as Congress may from time to time ordain and estab- lish ; 1 second, conceding that there was no violation of the Con- stitution, yet that the commanding general had no authority to establish the coiurt, but that the President alone had such authority; third, even if the court was rightly established it had no jurisdiction over civil causes. As to the first objection the Supreme Court in its decision remarked that, in view of previous decisions, 2 it was not to be questioned that the Constitution did not prohibit the creation by miUtary authority of courts for the trial of civil causes dur- ing civil war in conquered portions of insurgent States; that their establishment was but the exercise of the ordinary rights of conquest. Regarding the second objection it was observed that the general who appointed the court was in command of the conquering and occupying army. It was commissioned to conduct the war in that theatre. He was, therefore, in- vested with all the powers of making war, except so far as they were denied to him by the commander-in-chief, and among these powers was that of establishing courts in conquered ter- ritory. It must be presumed that he acted under orders, of his superior officer, the President, and that* his acts in the prosecution of the war were the acts of his commander-in- chief. As to the third and last objection, it was remarked that as the Supreme Court of the United States had determined that the general commanding had power to appoint under the circumstances a court with authority to try civil cases, not- withstanding the provisions of the Constitution, it would not go on in this case and determine whether the judge actually appointed in this instance exceeded his powers. This last was not a Federal question. The State courts had found that he I. Art. III., Sec. i. 2. 9 Wallace, 129; 20 Howard, r76. LAWS OBLIGATORY WITHIN OCCUPIED TEKRITOKY. 1 49 had not exceeded his powers. The Federal question involved in this branch of the subject was whether a commanding general could give a provost court cognizance of civil cases, and that question was decided in the affirmative, i 136. Two important points, vitally affecting authority of commanders in conquered territory, were for the first time here determined. One, that generals commanding, in the exercise of the ordinary rights of conquest, must be presumed to act under the orders of the President — that their acts under these circumstances are in contemplation of law the acts of the Presir dent until the contrary affirmatively appears; the other, that provost courts, established by the conqueror, are not neces- sarily limited to the cognizance of minor criminal offences, but may have conferred upon them power to pass upon important civil cases. 137. The appointment of this provost com-t was confessedly but the exercise of a war power. It was the making use -of one instrumentality by the conqueror among the many at his com- mand to enforce legitimate authority. Called by any other name it could equally well have taken cognizance of civil cases, had the power which brought it into being conferred the juris- diction. The name made no difference. It follows, therefore, that the "civil commission" appointed by the commanding general at Memphis properly took cognizance of civil cases, and that the decision of the Supreme Coirrt of Tennessee, be- fore cited, correctly expounded the law as to the effect to be given to its judgments. 138. The plenary power of the President and of commanders and military governors under him in organizing courts in con- quered rebel territory was yet more fully vindicated in other cases. 139. Under that clause of the proclamation formally taking possession of New Orleans, which directed that civil causes between party and party be referred to the ordinary tribunals, I. Mechanics' Bank 1;. Union Bank, 22 Wallace, 297. 150 MILITARY GOVERNMENT AND MARTIAL LAW. the general commanding the Union forces permitted the sixth district court of the city and parish of New Orleans to continue in existence, the judge having taken the oath of allegiance to- the United States, i Later other local district courts were set on foot, judges being appointed in the place of those who had cast their fortunes with the enemy. But jtirisdiction exercised by these courts was limited to citizens of the city and parish of New Orleans. As to other residents of the State, there was no regularly organized court in which they could be sued. 2- This judicial system it subsequently devolved on the military governor of Louisiana to regulate. 3 But it is plain that because- of the limited territorial jurisdiction of the district court, many litigants were without remedy. This, if not corrected, was a^ grievous evil. 140. To make the system more complete and afford all suitors facilities for prosecuting their clairds, the President, by executive order, dated October 20, 1862, organized a provisional, court, constituting it a court of record, with all the powers in- cident thereto, for the State of Louisiana. Prefacing his proc- lamation with the statement that insurrection had temporarily swept away and subverted the civil institutions, including the judiciary and judicial authority of the Union, so that it had be- come necessary to hold the State in military occupation; that it was indispensably necessary that there should be some ju- dicial tribunal existing there capable of administering justice the President instituted the provisional court and appointed a judge thereto, with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, rev- enue, and admiralty, and particularly exercising all such powers and jurisdiction as belonged to the district and circuit courts of the United States, conforming his proceedings so far as possible to the course of proceedings and practice which had been cus- I. Dow V. Johnson, 100 U. S., 159. 2. Rise and Fall of the Confeder- ate Government, Vol. 2, p. 289. 3. Handlin v. WickUff, 12 Wallace, 173. Penny wit ii. Raton, 15 Wallace, 384. LAWS OBLIGATORY WITHIN OCCUPIED TEERITOHT. 151 tomary in the courts of the United States in Louisiana, his judgment to be final and conclusive. The conferring on this provisional judge all such powers and jurisdiction as belonged to the district courts of the United States included necessarily that of a prize court. That United States district courts had prize court powers was early decided by the Supreme Court, i and such powers were expressly con- ferred by the act of June 26, 1812.2 On the other hand, the Supreme Com-t of the United States, in the case of Jecker v. Montgomery, had decided that "neither the President nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize cases." It therefore remained to be seen whether the jurisdiction conferred upon the provisional court would be sustained. The validity of its existence was soon vehemently attacked. The power of the President to es- tablish it was questioned on constitutional grounds. But this course was sustained b,y the Supreme Federal Tribunal in a manner at once masterly and conclusive, 3 and received like- wise the sanction of the national legislature. 4 The case which first brought the authority of the President to establish the provisional court judicially in question was that of the Grapeshot.b Originally the case was a libel in the district court of the United States for Louisiana on a bottomry bond, and was decided in favor of the libellants. Appeal was taken to the circuit court, where, in 1861, proceedings were in- terrupted by the Civil War. Subsequently, by .consent of the parties, the cause was transferred to the provisional court, where a decree was again rendered in favor of the libellants. Upon the restoration of civil authority in the State the pro- visional court, limited in duration according to the terms of the order constituting it, by that event ceased to exist. By I. Glass V. Sloop Betsy, 3 Dallas, 6. 2. 2 Statutes at Large, 761; I Kent, 357; Story, Constitution, Book II , Chap. 38, Sec. 866. 3. 9 Wal- lace, 129; 22 Wallace, 276; 12 Wallace, 173. 4. Act July 28, 1866, Stat- utes at Large, 14, p. 344- 5- 9 Wallace, 129. 152 MILITARY GOVERNMENT AND MARTIAL LAW. act of July 28, 1866, all suits, causes, and proceedings in the provisional court proper for the jurisdiction of the circuit court of the United States for the eastern district of Louisiana were directed to be transferred to the latter to be heard and deter- mined therein; and all judgments, orders, and decrees of the provisional court in causes thus transferred to the circuit court, it was. provided should at once become the orders, judgments, and decrees of that cotirt, and might be enforced, pleaded, and proved accordingly. 1 Article 3, Section i, Constitution of the United States, de- clares that "the judicial power of the United States shall be vested in one Supreme Court and in such inferior coints as the Congress may from time to time ordain and establish"; and the great question of constitutional law here was raised whether, consistently with this, the President could establish the court, or Congress, on the suppression of the rebellion, could, by its enactment, validate its doings, transfer its judgments, and make them judgments of the now re-established former and proper Federal courts. After citing its previous decisions, the principles of which were applicable to the case, the Supreme Court remarked that they had no doubt that the provisional court of Louisiana was properly established by the President in the exercise of his constitutional authority during the war, or that Congress had power upon the close of the war and the dissolution of the provisional cotu-t to provide for the transfer of cases pending in that coturt and of its judgments and decrees to the proper courts of the United States. 2 The clause of the Constitution relating to the judicial power of the United States, it was observed, had no application to the abnormal condition of conquered territory in the occupation of the conquering army; it refers only to courts of the United States, which rnilitary courts are not; it became the duty of the National Government, whenever the insingent power was' overthrown and the territory which had I. Chap. 310., Statutes at Large, 14, 344. 5. 9 Wallace, 133; 20 Howard, 176; 13 Ibid., 498; 16 Ibid., 164; 4 Wheaton, 246. LAWS OBLIGATORY WITHIN OOOUPIED TEREITOET. 153 been dominated by it was occupied by the national forces, to provide, as far as possible, so long as the war continued, for the security of persons and property and for the administration of justice; the duty of the National Government in this re- spect was no other than that which devolves upon a regular belligerent, occupying dturing war the territory of another belligerent, i The constitutional power of the President in the premises is found in that clause which provides that he shall be commander-in-chief of the army and navy of the United States and of the militia when called into actual service. 2 141. Thus it has been solemnly determined that the au- thority of the President, and of commanders under him, for the establishment of coiurts in conquered territory is complete, limited only by the exigencies of service and the laws of war; that such courts, if given jurisdiction by the power bringing them into existence, properly may take cognizance of questions, military, criminal, and civil; and that there is no distinction in this regard between the cases of territory conquered from a foreign enemy or rescued from rebels treated as belligerents. 142. Let us now consider the second proposition (Ante, Sec. 1 15), namely, what laws and what system of judicature ap- ply under military government to citizens, soldiers, or others of the conquering State. 143. As to members of the conquering army — soldiers and camp-followers — it wUl be found that they are subject only to the rules and articles of war, or, when these fail to meet the case, to the common law military, the laws of war. That they are not amenable, during military occupation, to the laws or courts of the conquered State has been judicially and finally decided. 3 144. The statute in emphatic language declares that "the armies of the United States shall be governed by" the rules and articles of war. 4 They equally apply whether the forces be I. 9 Wallace, 132; 22 Wallace, 295. 2. Art. II., Sec. 2, clause i. 3. Daw V. Johnson, 100 U. S., 158; Coleman v. Tennessee, 97 U. S., 509. 4. Sec. 1342, R. S., U. S. 154 MILITAEY GOVEENMENT AND MAETIAL LAW. operating abroad or within United States territory, i That this should be so when the armies, are without the boundaries of the Union follows from the right of the Government to wage wars of conquest; a right which both experience and judicial de- cisions have confirmed. 2 This rule rests upon reason; from a military view a war of conquest may be a defensive war, a fact which the history of nations abundantly shows; and as such - wars necessarily carry its armies without the boundaries of the United States, it follows that either the statutory law em- bodied in the rules and articles of war must be held to apply there, or those armies so situated be wholly governed by the common laws of war as practiced in the civilized world. The latter alternative has not found favor with those upon whom the duty has devolved of interpreting and applying the law. 145. The Constitution empowers Congress to make rules for the government and regulation of the land and naval forces. 3 Congress, in giving effect to this constitutional provision by the enactment of certain rules and articles, has in no manner made their applicability depend upon the locality or theatre of operations. In truth, certian of the articles of war in express terms provide for contingencies happening in "foreign parts."4 Hence it is not questioned that whether the armies be witliin the territorial limits of the Union, or pursuing schemes of con- quest abroad, they are governed by the rules and articles of war. 146. These rules and articles take cognizance of all crimes with a single exception, and all disorders and neglects to the prejudice of goo.d order and military discipline with which members of the military establishment are charged. Specific crimes, disorders, and neglects, capital and otherwise, an de- nounced therein as military offences^ the method of punish- ment therefor is pointed out, and then, with a sweeping clause, all other crimes not capital and all other disorders and neglects are brought within the cognizance of courts-martial according I. 5 Opinions AttorneyrGeneral, 58. 2. Flemings. Page, 9 Howard, 615. 3. Art. I., Sec. 8, clause 13. 4. As Arts. LVI., LVII. LAWS OBLIGATORy WITHIN OCCUPIED TEKEITOET. 1 55 to the nature and degree of the offence, and made punishable at the discretion of such courts, i 147. A question has sometimes been raised whether, not- withstanding these provisions of law, certain heinous crimes when perpetrated by those composing the armies of United States are triable before military tribunals. 2 Reference is here made to grave offences, which subject the perpetrator to severe punishment by the ordinary criminal courts of the land. The writer of this work does not join in these doubts. No doubt is here entertained of the authority of military tribunals to take cognizance of all offences ireflecting upon the service, committed by persons composing the armies of the United States, with the single exception of capital crimes not spe- cifically mentioned in the Articles of War. On the contrary, it is believed that the sole criterion of jurisdiction, under the law, is not the name of the crime or offence, but whether or ■not in its effects it is prejudicial to good order and military discipline. 3 It was this jurisdictional question which in great degree prompted General Scott, as has been mentioned, to promulgate in Mexico a code supplemental to the rules and articles of' war, and which conferred upon military commissions cognizance of many crimes, whether committed by members, retainers, or fol- lowers of the United States Army, upon either the persons or property of the people of the country, or upon other members, retainers, or followers of the same army. The principle was here clearly enunciated that, so far as members of the invading army were concerned, the authority of military commanders to maintain ordar, punish crime, and protect property was suffi- cient for every contingency. Where the statutory law proved deficient, or was supposed to be so, the supplemental code drawn from the customs of war supplied tha deficiency. 4 The I. LX II. Article of War. 2. Scott's Autobiography, pp. 393, 541. 3 See Winthrop's Mil. Law, ist Ed., Vol. i, p. 961. 4. Appendix I. 156 MILITAEY QOVEENMENT AND MARTIAL LAW. principle has received both judicial and legislative sanction.' It may be laid down, therefore, as an accepted rule that crimes committed abroad by members, retainers, and followers of the army shall never go unwhipt of justice. 148. There exists no authority save in the Articles of War and the customs of war for taking cognizance of such crimes. Except in certain cases, not here considered because not rele- vant. United States penal statutes do not apply to crimes per- petrated outside the boundaries [of the Union .^ Not only do United States courts have no common law criminal jurisdiction, but military tribimals, save in specified crimes, of which murder is not one, cannot take cognizance of crimes perpetrated by its members who have ceased to belong to the army. (48, 60, 103, Articles of War.) This may lead and in fact has led to criminal immunity, as for instance, when Perote, Mexico, was occupied by United States troops and the place was under military gov- ernment an^officer of the American army was accused of com- • mitting murd;r upon the parson of another. The alleged murderer was arraigned before a military commission, but pending the trial escaped from the guard and returned to the United States. He was subsequently, together with the vol- unteer organization to which he belonged, mustered out of the service. It was held that he was not, after this event, subject to indictment and trial for th; alleged crime, which, if com- mitted at all, was either against the temporary government established under the law of nations by the rights of war, or against the rules and articles for the government of the army. If against the former, the offence and its prosecution ceased to exist when that temporary government gave way to the restored Mexican authorities. If against the latter, the alleged offender, having been legally discharged, the service was no longer amenable to the laws governing the army. The crim- 1. loo U. S., 170; 97 U. S., S15; Act March 3, 1863, Chap. 75 [LVIII. and LIX. Arts, of War] ; Halleck, Chap. 33, Sec. 6. 2. Title 7o, Chap. 3, Sees. 5339, 5341, etc., R. S., U. S.; 5 Opinions Attorney - General, 55 I Kent, Lecture, 16. LAWS OBLIGATORY WITHIN OCCUPIED TEEEITOET. 1 57 inal code prescribed by Congress had no validity within Mex- ican territory. The laws of the United States did not extend over conquered districts of Mexico. While the rules and articles of war accompanied the army for its government, the civil courts derived no authority from that source, i 149. Laws of the invaded country have no validity as affect- ing members of the conquering army. 2 They can not properly be given jurisdictional effect. This has been frequently and authoritatively decided. One of the most instruccive decisions of the Supreme Court of the United States upon this point arose out of the seizure of certain property in that part of Louisiana reduced by the Federal forces in 1862. It has already been re- marked that within this district certain of the civil courts were permitted to exercise jurisdiction. The decision of the Su- preme Court in question put at rest all claim that such local courts could pass upon the conduct of members of the invading army. The case arose in the following manner : Some months after the occupation of New Orleans one of the subordinate commanders was sued in one of the local courts for the seizure of twenty-five hogsheads of sugar and other property belonging to a citizen of the State. To this suit, though served with citation, the officer made no appearance. Judgment going by default, action was brought upon the judgment in one of the United States Circuit Courts, where, the judges being opposed in opinion, the case was taken to the Supreme Court of the United States. The important question was thus presented for the determination of that court whether an officer of the United States Army is liable to«an action before the local tribunals for injuries resulting from acts ordered by him in his military character whilst in the service of the United States in the enemy's country. 2. Case of Capt. Foster, 5 Opinions Attorneys-General, 55; Barr, International Law, p. 700; see also case Capt. C. M. Brownell, Opinions; Attorneys-General, Vol., 24, p. 574; 97 U. S. R., 509; 100 U. S. R., 158 23 F. R., 795. 2. Post Sec. 154. 1 58 MILITARY GOVEENMENT AND MABTIAl LAW. This question, the court remarked, was not at all difficult of solution when the character of the Civil War was adverted to. That war, though not between independent nations, but be- tween different portions of the same nation, was accompanied by the general incidents of international wars. It was waged between people occupying different territories, separated from each other by well-defined lines. Belligerent rights were ac- corded to the insurgents by the Federal Government. The courts of each belligerent were closed to the citizens of the other, and its territory was to the other enemy territory. When, therefore, the Union armies marched into the enemy's country their soldiers and officers were not subject to its laws nor amenable to its tribunals for their acts. There would be something singularly absurd, the court remarked, in permitting an officer or soldier of an invading army to be tried by his enemy whose country he had invaded. The same reasons for his exemption from criminal prosecution apply to civil proceed- ings. There would be as much incongruity and as little like- lihood of freedom from the irritations of the war in civil as in criminal proceedings prosecuted during its continuance. In both instances, from the very- nature of the war, the tribunals of the enemy must be without jurisdiction to sit in judgment upon the military conduct of the officers and soldiers of the invading army. 150. Nor is the position of the invading belligerent affected or his relation to the local tribunals changed by this prolonged occupation and domination of any portion of the enemy's terri- tory. The invaders are equally as free from local jurisdiction as though they were simply sweeping through the country. It is true that for the benefit of the inhabit ints and of others not in the military service — in other words, in order that the ordin- ary pmsuits and business of society may not necessarily be deranged — the municipal laws, that is, such as affect private rights of persons and provide for the punishment of crime, are generally allowed to continue in force and to be administered by the ordinary tribunals as before the occupation; but this LAWS OBLIGATORY WITHIN OCCUPIED TEREITOKT. 1 59 argues nothing in favor of jurisdiction over the victorious enemy who makes these concessions. It is further true that these laws are regarded as continuing in force unless suspended or superseded by the occupying belligerent. But their con- tinued enforcement is not for the protection or control of the occupying army, its officers, or soldiers. These remain subject to the laws of war, and are responsible for their conduct only to their own government and the tribunals by which those laws are administered. If guilty of cruelty to persons, or of unnec- essary spoliation of property, or of other acts not authorized by the laws of war, they may be tried and punished by military tribunals. They are amenable to none other except that of public opinion which, it is to be hoped, will always brand with infamy all who authorize or sanction acts of cruelty and oppres- sion. The decision of the Supreme Court was, therefore, that the district court of New Orleans, at the time and place men- tioned, had not jurisdiction of the parties and cause of action to render the judgment in question, i 151. In the coiu'se of this opinion there was cited the anal- ogous and instructive case of Elphinstone v. Bedreechund, 2 in which it likewise was decided that a local court had no jurisdic- tion to adjudge upon the vplidity of a hostile seizure of property ; that is, a seizure made in the exercise of a belligerent right. In that case British forces, November 16, 1817, captured and afterward held Poonah, the capital of the powerful Mahrattas. A provisional government was established whose control after wards was undisturbed. On the 17th of July, 1818, the inem- bers of the provisional government seized the private property of a native under the belief that it was public property en- trusted to the holder by the hostile sovereign. At the time there were no hostilities in the immediate neighborhood, and the civil courts, under the favor of the conqueror, were sitting for the administration of justice. The whole country, how- ever, was in a disturbed state. Poonah was greatly disaffected. I. Icxj U. S., p. 158 et seq. a. I Knapp, Privy Council Reports, p. 316. l6o MILITARY GOVERNMENT AND MAETIAl LAW. The vanquished were dispersed, but not subdued. Action being brought against the members^of the provisional govern- ment for the seizure, judgment was rendered against them in the Supreme Court of Bombay upon the ground, apparently, that at the time and for some months preceding the city had been in undisturbed possession of the provisional government, and civil courts under its authority were sitting there for the ad- ministration of justice. On appeal to the privy council judg- ment was reversed. "We think," said Lord Tenterden, speak- ' ing for the council, "the proper character 'of the transaction was that of a hostile seizure made, if not flagrante, yet nondum cessante hello, regard being had both to the time, place, and the person ; and consequently that the municipal court had no jurisdiction to adjudge upon the subject, and that, if anything was done amiss, recourse could only be had to the government for redress." 152. The case of Coleman v. Tennessee goes directly to the same point. Here, while the Civil War was flagrant, Coleman, a soldier of the Union army, committed murder in Tennessee, then a district declared by proclamation of the President to be in a state of insurrection. He was tried by court-martial, found guilty, and sentenced to be hanged. Pending execution of the sentence he escaped. Nine years afterwards, the rebellion being conquered and Tennessee having resumed her position as a State in the Union, he was indicted before the criminal court of the district wherein the miurder was committed, con- victed of the crime, and sentenced to death. On appeal to the State Supreme Court, judgment was affirmed. The case was then taken, by writ of error to the Supreme Court of the United States, where the judgment of the State Supreme Court was re- versed and the defendant directed to be discharged from civil custody.^ It was remarked, in delivering the opinion of the court, that when the armies of the United States were in enemyjMuntry I. 97 U. S.,so9,-^erieg.; Prbolamation, August r6, 1861; 12 Statutes at Large, 1263. I.AWS OBLIGATORY WITHIN OCCUPIED TERRITORY. l6l military tribunals had, under statutory law and the laws of war, exclusive jurisdiction to try and punish offences of every grade committed by persons in the military service; that officers and soldiers of whatever grade were not subject to the laws of the enemy or amenable to his tribunals,- that they were answerable only to their own government, and only by its laws as enforced by its armies could they be punished ; and that if an army marching through a friendly country would be exempt from its civil and criminal jurisdiction, as the Supreme Court had decided, so much the more would an invading army be exempt. The fact that when the offence was committed Tennessee was in the military occupation of the United States, with a military governor at its head appointed by the President, could not alter the conclusion. Tennessee was one of the in- surgent States forming the organization known as the Confed- erate States, against which the war was waged. Her territory was enemy's territory, and its character in this respect was not changed until long afterwards. So far as the laws of the State were continued in force it was only for the protection and benefit of its own people. As respects them the same acts which constitued offences before the military occupation con- stituted offences afterwards; and the same tribunals, unless superseded by order of the military commanders, continued to exercise their ordinary jurisdiction.' In denying to the State courts jurisdiction in this case the correctness of the general doctrine was not questioned that the same act may, in some instances, be an offence against two governments, and that the transgressor may be liable to pun- ishment by both or either, depending upon its character. But this did not present a case for the apphcation of the principle. And this for the reason that the laws of Tennessee did not apply during military occupation to the defendant, a soldier of the United States, and subject to the articles of war. He was I. Act July 13, 186 1, Chap. 3, Sec. 5, Statutes at Large, 12, p. 257; Proclamation, August 16, 1861. , —11— 1 62 MILITARY GOVERNMENT AND MARTIAL LAW. responsible for his conduct to the laws of his own government only as enforced by the commander of its army in that State, without whose consent he could not even go beyond its lines. Had he been caught by the forces of the enemy, after commit- ting the offence, he might have been subjected to a summary trial and punishment by order of their commander; and there would have been no just ground of complaint, for the marauder and assassin are not protected by any usages of civilized war- fare. But the courts of the State, whose regular government was superseded and whose laws were tolerated from motives of convenience, were without jurisdiction to deal with him. 153. These decisions conform to the priiciples of inter- national law and give a sanction to existing practices under the laws of war. They completely negative the suggestion that the invaders are subject to the laws and are amenable either civilly or criminally before the courts of countries subjected to their arms.^ 154. In a case of alleged homicide by a soldier of the United States upon the person of a teamster in that service, committed in Cuba subsequent to the treaty of peace with Spain, the Attorney-General gave an opinion to the effect that the soldier could not be tried therefor by either a court- martial or a military commission, but that he might, though he need not, be turned over to the local criminal courts for trial. ^ It may be remarked in this connection that in many opinions of the Attorney-General the ground was taken that all the measures of the Executive Department in Cuba, not expressly authorized by act of Congress or by treaty, were based on rights springing out of the laws of war.' It is believed that this position is correct; but, being so, it is not apparent why a military commission, which is a war-court, convened as an incident of belligerent rights as a rule and not because of statutory authority, could not have taken cognizance of this case. This would appear to be more in. consonance with cor- I. Wheaton, p. 437, Dana's note; Halleck, pp. 782-86. 2. Opinions Att'y-Gen., Vol. 23, p. 120. 3. Ibid., Vol. 22, p. 523; Vol. 23, pp. 226, 427. IvAWS OBLIGATORY WITHIN OCCUPIED TERRITORY. 1 63 rect principles than turning one of the conquering army over to the local criminal courts for trial. 155. What laws and what system of judicature apply under military government to civilians, citizens of the conquering State? The forty-fifth, forty-sixth, and sixty-third of the rules and articles for the government of the Army, and Sec- tion thirteen hundred and forty-three. Revised Statutes of the United States, take cognizance of offences comitted by the latter class of persons. 156. The forty-fifth article declares that whosoever relieves the enemy with mDney, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death or such other punishment as a court-martial may direct. The forty-sixth, that whosoever holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial may direct. The sixty-third provides that all retainers to the camp, and all per- sons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, accord - ing to the rules and discipline of war. The section of the Re - vised Statutes referred to states that all persons who, in time of war or rebellion against the supreme authority of the United States, shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial, or by a military commission, and shall, on conviction thereof, suffer death. 157. It is proper to remark that these statutory provisions are not limited in their purview to civilians, citizens of the conquering State, under military government; still they are applicable to such persons. For the taking cognizance, how- ever, of all crimes committed by or against this class of civilians under military government, no laws have validity save those just mentioned and the common laws of war. The forty-fifth and forty-sixth articles are general in their terms, and have received in practice an interpretation which does hot'limiftheir 164 MIUTARY GOVERNMENT AND MARTIAL LAW. applicability as lo persons. "Whosoever" is a term unlim- ited in its nature, and which can be limited only by "con- struction" — ^that uncertain and potent modifier of statutory law. In this instance it has been construed to mean what the language naturally imports; and that anyone who is guilty of the offences denounced is amenable before military courts in the manner indicated in the articles.^ Where civil courts are sitting to which the offender may be delivered for trial, this course may be and often is pursued. These articles, being penal in their nature and derogatory of the constitutional right of trial by jury, are to be strictly construed. Wherever the civil courts without prejudice to the interests of the service can take jurisdiction this, should be done. But this is not the case under military government, where such offenders must either be tried by the military or go unpunished. 158. In its terms the sixty-third article of war subjects "retainers" and others mentioned "to orders only according to the rules and discipline of war." But by universal con- struction given the language of the article the persons indi- cated have been held amenable to trial before military courts for violations of either the statutory 01 common-law mili- tary codes.^ 159. For crimes for which they may be accused, civilians, citizens of the conquering State, accompanying the army, are under military government, subject only to either statutory law directly applicable to their cases or to the common laws of war, and are amenable before military courts. In the nature of things it must be so. The jurisdiction exercised over this class must be either military or civil. If the former, it can only be exercised by military commanders in accordance with military law, either statutory or common. If the latter, cognizance of crimes by civil courts must be in pursuance of the criminal laws either of the conquering or the conquered I. O'Brien, 151 ; De Hart, 22; Winthrop, ist Ed., Vol. i, p 117 et seq 2. De Hart, 22, Bena, 33; Ives, 60; Digest, 48; Winthrop, Vol. i,p. 118. IvAWS OBUGATORY WITHIN OCCUPIED TERRITORY. 1 65 \ State. But criminal laws of the conquering State have no vaHdity in territory under military government which, for belligerent purposes, is always considered foreign; while those of the conquered State are retained as an act of the conqueror's grace, for the benefit of the conquered alone, and legally there can not be drawn within this jurisdiction causes affecting either members of the invading army, retainers or followers thereof, or other civilians in the service of the conquering State.' i6o.\ In order that civilians may be brought within the cognizance of the sixty-third article of war, they must in some manner be connected with the army, either in government employ or otherwise voluntarily accompanying it. The article has no reference to and in no manner affects other civilians, either persons who by proper authority are in the pursuit of private enterprises,, or those who are engaged in branches of government service other than the military. So long as these latter descriptions of persons pursue their proper avocations and affairs in good faith, conforming to those general rules established by the conqueror for the safety of the military interests of the government, they are left undisturbed, or are perhaps facilitated in their enterprises; it is only when they transgress and are guilty of crimes that prejudicially affect the military interests that they become amenable under the forty-fifth and forty-sixth articles, the provision of law relating to spies and to the common laws of war, which are sufficiently comprehensive in scope and energetic in action to maintain in every emergency the authority of the military commander and the interests of the conquering State. 161. By the common law crimes are local, to be prosecuted in the county where perpetrated; only in such county can the grand jury inquire of them.' And although this provision, like most other constitutional guarantees for the protection of alleged criminals, may be waived by them, as, for instance, by change of venue, such change can only be made with the I. 5 Opinions Attorney-General, p. 55; 97 U. S., 509; 100 U. S., 158; Clode, Mil. and Martial Law, p. 95. 2. 4 Blackstone, 303. 1 66 MIUTARY GOVERNMENT AND MARTIAL LAW. consent of the defendant, i But it has been decided by the Supreme Court of the United States that the Fe;deral judiciary can not exercise common law jurisdiction in criminal cases. To enable the United States courts to take criminal jurisdiction it is necessary in any particular case for Congress to make the act a crime, to affix a punishment, and designate the court to try it.^ No law of the United States vests criminal courts with cognizance of crimes committed by persons in territory under military government. Should they assume it without legislative provision to that effect, plea to the jurisdiction would defeat prosecution. 162. It is well settled then that crimes being in their nature local, the jurisdiction of crimes also is local. And so as to actions concerning real property, the subject being fixed and immovable. But not so as to transitory actions. These em- brace suits growing out of debts, contracts, and generally all matters relating to the person, including torts or to personal property. As to them Lord Mansfield said: "There is not a color of doubt but that they may be laid in any county in England, though the matter arises beyond the seas." ' This distinction between the local and transitory actions is fully recognized by the courts of this country.^ It leads to im- portant consequences regarding the rights and liabilities of civilians, citizens of the conquering State, under mihtary government; for while crimes committed either by or upon them must be tried by military tribunals in the conquered territory or not tried at all, transitory actions there accruing may be prosecuted at home in the civil courts of the dom- inant government. An action may be maintained in the circuit court for any district in which the defendant may be found, upon process duly served, where the citizenship of the parties give jurisdiction to a court of the United States; and, I, Bishop, C. P., Vol. I, Sec. 50. 2. i Kent, 335-341 ; U. S. ». Hudson & Goodwin, 7 Cr., 32; U. S. v. Bexans, 3 Wheaton, 336. 3. Moatyn v, .T^brigas,. I Cowper, 161. 4. McKennaw.Fiah, 2 Howard, 411; Gardner V, Thomas, 4 Johnson, 134; Glen », Hodges, 9 Johnson, 67. ■ \ \ LAWS OBLIGATOET WITHIN OCCUPIED TEREITOEY. 167 \ in \^tha- cases, jurisdiction of the parties being first had, an action may be maintained in the proper State court, i What- ever ,yheref ore, may be the natme of the action, whether it be local or transitory, whether it result from crime perpetrated, contracts broken, or personal injuries suffered, the laws of war, statutory or common, or the courts of their own country, fully procect civilians, citizens of the conquering State, who may be sojourning temporarily subject to military government. 163. Thirdly :2 neutrals residing in conquered territory ara treated by the conqueror as the laws of war require, or as policy may dictate. 3 He has a right to subject all found within that territory, both as to person and propetry, to such rules as he may find neces- sary to attain the objects of the war. Until this end be a-c- tained he has, strictly speaking, a right to use every proper means for its accomplishment.* The law of nature has not determined how far piecisely an individual is allowed to make use of force, either to defend himself against a threatened in- jury, or to obtain reparation, when refused by the aggressor, or to bring an offender to punishment. The general rule is thai, such use of force as is necessary for obtaining these ends is not forbidden. The same rules apply to the conduct of sovereign States while carrying on war which, theoreticplly at least and in contemplation of law, is an attempt to vindicate the right. No use of force is lawful or even expedient so far as necessary to attain the object in view. The custohi is to ex- empt certain persons from the direct effects of military opera- tions. In dealing with neutrals, residents of the conquered State, the conqueror has, in addition, to humane considera- tions which temper his treatment of certain classes of the enemy, a motive for treating them as liberally as the laws of war permit arising out of the fact that thereby a feeling of good will is strengthened between the conquering State and the neutral States, whose subjects they are. Sound policy, I. 13 Howard, 137. 2. Ante, Sec. 115. 3. Woolsey, Sec. 173. Wheaton, International Law, Sec. 342. l68 MILITAET GOVERNMENT AND MARTIAL LAW. therefore, as well as humanity demands that in so far as it can be done consistently with the successful prosecution of the war, the lot of neutrals so circumstanced be made as agreeable as possible. "All foreigners not natiu-alized and claiming al- legiance to their respective government," said the command- ing general in taking possession of New Orleans in 1862, "and not having made oath of allegiance to the supposed govern- ment of the Confederate States, will be protected in their per- sons and property as heretofore under the laws of the United States." Yet with the conqueror the success of his arms will ever be the primary consideration. His will, under military govern- ment, is law to all alike, regardless of nationality, within the territory occupied. From the operation of this first rule — ^the rule of necessity — ^neutrals are not exempt. A military gov- ernor is responsible only to his superiors. If he invades the rights of neutrals their remedy, if any they have, must be sought through their own government. Conquest being a valid title while the victor maintains exclusive possession, cit- izens of no other nation havi a right to enter the territory without the permission of the cc nqueror, or hold intercourse with its inhabitants or trade with them. 1 The intercourse of foreigners with such territory is regulated by the government of military occupation. 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 ill is a relaxation of the rights of war. 2 164. The principles which govern the transactions of neu- trals in territory under military government are well set forth in the opinion of the Supreme Court of the United States in the case of the ship Esseiic.s On the 12th of May, 1862, after the captiu-e of New Orleans by the Union forces, the President, having become satisfied that the blockade existing against I 9 Howard, 6i j, 1. Halleck, Chap. 33, Sec. 9. 3. 92 U. S., jao (U. S. V. Diekelman) . LAWS OBLIGATORY WITHIN OCCUPIED TERRITORY. 1 69 that place might safely be relaxed with advantage, issued his proclamation to take effect the ist of June following, permitting commercial intercourse therewith except as to persons, things, and information contraband of war. The ship Essex, owned by a citizen of a foreign government, sailed from Liverpool for New Orleans June 19, 1862, arriving August 24th following. Barly in September the general commanding there was in formed that large quantities of silver plate and bullion were being shipped on board the Essex by persons known to be hos- tile to the United States. He had reasonable cause to suppose that this silver was intended to pay for supplies furnished and to be furnished to the rebel government. He therefore ordered that the specified articles should be detained and their ■exportation not allowed until further instructions were given. They were deemed to be contraband of war; and not until they were re-landed from the ship was she granted a clearance and permitted to depart. By joint resolution of Congress, passed after the war, the claimant for damages caused by the detention of the ship by the military authorities was permitted to sue in the Court of Claims, where judgment was given in his favor; on appeal to the Supreme Court this judgment was reversed. The court remarked that previous to June ist the Essex was excluded altogether from the port by the blockade. At that date the blockade was removed, but relaxed only in the interests of commerce. The city was in fact a garrisoned city, held as an outpost of the Union army, and closely besieged by land. All this was matter of pubUc notoriety; and the claimant ought to have known if he did not know that although the United States had to some extent opened the port in the interests of commerce, they kept it closed to the extent that was necessary for the vigorous prosecution of the war. When he entered the port, therefore, with his vessel under the special license of the proclamation, he became entitled to all the rights and privi- leges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. I70 MILITARY GOVERNMENT AND MARTIAI, I,AW. Such restrictions as were placed upon citizens operated equally upon him. Citizens were governed by martial law [military government]. It was his duty to submit to the same authority. Martial law was declared by the court to be the law of military necessity in the actual presence of war. It is administered by the general of the army and is in fact his will. Of necessity it is arbitrary, but it must be obeyed. New Orleans was at this time the theatre of the most active and important military operations. The civil authority was overthrown. A complete system of military government had been established. The general in command was the miUtary ruler. His will was law, and necessarily so. His first great duty was to maintain on land the blockade which had thereto- fore been kept up by sea. To this law and this government the Essex subjected herself when she went into port. She went there for gain, and voluntarily assumed all the chances of the war into whose presence she came. By availing herself of the privileges granted by the proclamation, she in effect cov- enanted not to take out of the port "persons, things, or infor- mation contraband of war." What is contraband depends upon circumstances. Money and bullion do not necessarily partake of that character; but when destined for hostile use, or to procure hostile supplies, they do. Whether they are so or not, under the circumstances of a particular case, must be determined by some one when a necessity for action occurs. At New Orleans, where this transaction took place, this duty fell upon the general in command. Military commanders must act to a great extent upon appearances. As a rule, they have but little time to take and consider testimony before deciding. Vigilance is the law of their duty. The success of their operations depends to a great extent upon their watch- fulness. The commanding general found on board the vessel articles which he had reasonable cause to believe, and did be- lieve, were contraband, because intended for use to promote the rebellion. It was his duty, therefore, under his instruc- tions, to see that the vessel was not cleared with these articles IvAWS OBLIGATORY WITHIN OCCUPIED TERRITORY. 171 on board, and he gave orders accordingly. It matters not whether the property suspected was in fact contraband or not. It is sufficient that the general had reason to believe, and did believe, that it was contraband. The vessel was not bound to take out any contraband cargo. She took all the risks of this obligation when she assumed it, and was obUged to bear the losses that followed. This reasoning of the Supreme Court was conclusive. It establishes upon principles not to be shaken that neutrals in conquered territory must conform to the laws of the conqueror; and it sustains with clearness, completeness, and force the au- thority of generals in the enforcement of miUtary government, and conformably with the laws of nations, to resort at discretion to whatever measures are necessary to seure the objects of the war and the triumphs of their arms. 165. The case of the Venice further illustrates the right of neutrals under miUtary government.^ Cooke, a British sub- ject, had resided in New Orleans and done business there for ten years prior to the breaking out of the rebelHon, and con- tinued to reside there until after the capture of the city. Dur- ing the early part of April, 1862, he had purchased and stored there several hundred bales of cotton. Apprehending danger from the conflagration which might ensue in case the city was captured, as then seemed imminent, he purchased a vessel on which he stored the cotton and anchored it in an adjacent lake out of harm's immediate way. Here, lying quietly at rest, the vessel was seized by a United States ship of war soon after the city fell. The vessel and cargo were libelled as prize of war in the United States court at Key West, but restored to the claimant, Cooke, by its decree. The United States appealed and the decree was affirmed. The pledge given to neutrals by the general commanding the invading army upon the establishment of military govern- ment at New Orleans in 1862 has been meationed. The Su- I. 2 Walkce, 258. 172 MILITARY GOVERNMENT AND MARTIAL LAW. preme Court held that the general was fully warranted in making that pledge. It comported with the policy of the Government in suppressing the rebellion. Hence, after the pledge was given, vessels and their cargoes belonging to neu- trals residing in New Orleans and not affected by any attempts to run the blockade, or by any act of hostility against the United States after the publication of the proclamation con- taining it, were regarded as protected by its terms. And the- pledge alone saved the property. The Supreme Court treated as fallacious and without foundation in international law the contention of counsel for Cooke that simply because he was a subject of Great Britain his property had immunity from capture under all circumstances. The vessel and the cargo at the time of the purchase were enemy property. Did the transfer to Cooke change their character in this respect? He was, indeed, a British subject, but identified with the peo- ple of Louisiana by long voluntary residence and by the rela- tions of active business. Upon the breaking out of the war he might have left the State and withdrawn his means, but he did not think fit to do so. He remained more than a year engaged in commercial transactions. Like many others, he seemed to think that, as a neutral, he could share the business of the ene- mies of the Nation and enjoy its profits without incurring the responsibiUties of an enemy. He was mistaken. He chose his relations and had to abide their results. The ship and cargo were as liable to. seizure as prize in his ownership as they would have been in that of any citizen of Louisiana residing in New Orleans and not actually engaged in active hostilities against the Union.' 1 66. Neutrals resident of conquered territory are amenable criminally before either local criminal courts maintained at the pleasure of the conqueror, or before military tribunals organ- ized by his authority. In this respect they occupy a position similar to that of enemy subjects under the same circumstances. Yet practically there is an important difference between the I. 2 Wallace, 275; Young v. U. S., 97 U. S., pp. 60, 63. IvAWS OBI^IGATORY WITHIN OCCUPIED TERRITORY. 1 73 situations of these two classes, both of which owe temporary allegiance to the miHtary government. The- position of the neutral is the more eligible. Not until the laws of war are transgressed could enemy subjects, with show of reason or hope of success, appeal to the government of their permanent al- legiance which can only secure an amelioration of their condi- tion through harsh and forbidding measures of retaliation. Neutrals have more Uberty of action. They, with greater as- surance of relief, appeal to their own government through repre- sentations to the conquering State for justice and against wrongs, real or imaginary, suffered at the hands of the govern- ment of military occupation. Nor are neutral States, as a rule, inclined to ignore complaints of their subjects domiciled in foreign territory which has temporarily passed under the rule of a friendly power. 167. In regard to transitory- actions accruing to neutrals under the circumstances here supposed, it seems that they are in the same category with civilians, citizens of the government of military occupation. Courts, as a "rule, make no distinction, so far as jurisdiction is concerned, between causes in which the parties are foreigners and those in which they are subjects. A court which is competent when the parties are subjects is competent, other things being the same, when the parties are foreigners. And while it is said that the principle has been pushed too far, the practice of taking cognizance in all transi- tory actions in which the defendant is summoned within the jurisdiction is too deeply seated now to be shaken.* 168. In case the conquest is confined to the dominant State, the question becomes interesting apd important as to waat efi^a^y is to hz givea to julgn^ats ra.iiered ia e su- preme judicial tribunal of the now displaced government, but which the disturbed condition of affairs prevented being given effect in the country militarily occupied. This was a matter J. Wharton, Conflict of Laws, Sees. 705. 707. 712; McKenna v. Fish, I Howard, 241; Mitchell v. Harmony, 13 How., 137; Wharton, Inter- national Law, Sec. 113. 174 MIWTARY GOVERNMENT AND MARTIAL LAW. demanding attention in all the territories wrested from Spain in consequence oi the Spanish- American War of 1898 and its incidents. It was settled by paragraph i, Art. II., of the treaty of peace, which provided that judgments rendered, in either civil or criminal cases, in courts of last resort of Spain, before the day of ratification of the treaty, should be regarded as final, to be executed in due form, within the territory, and by the rightful authorities. Judgments rendered after the day of ratification were of no effect. Cases pending in the courts of the territory militarily occupied were to be prose- cuted to a finish, either there or in whatever courts the domi- nant power should substitute for them. One of the first acts of the respective military governors was to organize a civil judiciary in the conquered provinces. CHAPTER X. Rights Regarding Private Property. 169. Second in importance to considerations affecting the personal relations of the enemy under military government are those concerning his property. The ancient rule forfeited alike the life and property of a captured enemy. With the progress of civilization, particularly under the influence of Christian precepts, the rigors of the rule have gradually been relaxed.' 170. From the moment one State is at war with another it has, strictly, even under the modern view, a right to seize all enemy property and appropriate it to its own use or to that of the captor's.' The only care of the State in enforcing this right is directed to seeing that neutral territory is not violated. 171. In active warfare it ever will be an important prac- tical question as to what military officials legally, under the laws of war, may seize property of enemy subjects. The mil- itary governor should establish rules regarding this matter, so drawn as to protect first the interests of the dominant power and, as a close second to this, secure the people from illegal exactions and unnecessary hardships. If this be not done, the incidents of campaign, multifarious beyond conception, speedily will render it necessary for subordinates to adopt their own rules. If shelter be necessary and at hand, it will be utilized rather than that the troops should be exposed to the elements; if food and forage be needed, they will be seized rather than that both troops and animals should go hungry; and, on the principle of self-preservation, these de- I. Bluntschli, I., Sec. 29; Manning, p. 179. 2. Wheaton, Part IV., Sec. 346; Bluntschli, I. Sec. 7; 8 Cranch, 279; Twiss, p. 123; Manning, p. 169; ibid., p. 182. J 75 176 MILITARY GOVERNMENT AND MARTIAL LAW. tails will be attended to whether the commander-in-chief has or has not issued orders on the subject. The immense advant- age that results from his issuing regulations arises out of the fact that thereby he keeps these important affairs in his own hands, preserves order throughout his jurisdiction upon prin- ciples that he deems best suited to the actual circumstances; gives his subordinates a rule of conduct to which they are bound to conform, and protects the helpless people in their rights. Nor will the regulations of the commanding general be limited to shelter, food, and forage, although these are inci- dents to which attention most often will be directed; they will cover, at least by general rules, all the phases of military events in the territory occupied, so that subordinates will un- derstand their rights, duties, and obligations on all occasions. The demands of active service in the field during a war of magnitude with a foe worthy of our steel are apt to be terribly exacting; and ifr the subordinate be not given a rule for his guidance he of necessity will adopt one for himself. 172. We will first consider the case of private enemy property. This belligerent right may be enforced either by confiscation, by summarily appropriating, taking the property as booty, or, more formally, as contributions. 1 173. Enemy property can be confiscated only in pursuance of law, as the legislature must authorize before the Executive Department can proceed to act. 2 Confiscation in this view is a formal proceeding. The term frequently is erroneously applied to the mere military appropriation of enemy property, as for instance the taking supplies for the use of the army, or the destruction of it to prevent its falling into the enemy's hands. In proper cases such appropriation or such destruc- tion is a rightful exercise of military power by the commander in the field without thought of previous legislative sanction being necessary. It is a proper proceeding under the laws of I. Twisi, I.aw of Nations, p. i2'i.. 2. 8 Cranch, no. RIGHTS REGARDING PRIVATE PROPERTY. 177 war. It is in this view of the case that the Hague Conference announced that private property cannot be confiscated, i In considering the matter, therefore, of the laying violent hands on enemy property, the case of confiscation should always be carefully distinguished from that of military appropriation. The former is carried into effect under the sanction of statute. In the latter, while proper authority must be had in each in- stance, yet the cases may vary from the taking fodder for his horses by the non-commissioned officer in charge of a detached corporal's guard through varied gradations all the way up to the whole army living off the country under the direct orders of the commanding general ; and in each instance the circu n- stances of the appropriation will determine whether or not it is a rightful exercise of power under the laws of war; and this, whether the taking be styled appropriation, taking as booty, or as contribution. 174. Writers on the laws of nations have given varijus views as to the right to confiscate enemy property. Bynker- shoek maintains the right without limitation, while Vattel in important particulars denied it. 2 But upon principle the right would seem to be clear. The very object for which war is wa ,ed would apparently give a belligerent a right to deprive an enemy of his possessions or anything else which may aug- ment his warlike strength. Each belligerent endeavors as against the enemy to accomplish this in the manner most agreeable to himself. So long as the principle that no force is to be used which does not directly contribute to the success of its arms is kept in view, why should not a belligerent at every opportunity seize on enemy property and convert it to his own use? Besides diminishing the enemy's power, he aug- ments his own and obtains at least a partial indemnification, or equivalent, either for wh it constitutes the subject of the war, or for the expenses or losses incurred in its prosecution.s But whatever may be the views with which publicists and 1. Sec. 3, Art. XLVI., G. O. 52. A. G. CJigoa. 2. See Kent, I., 56; Vattel, Book III., Chap. 4, Sec. 63. 3 Manning, pp. 182-83. —12— 178 MILITARY GOVERNMENT AND MARTIAL LAW. speculative writers may please their fancy, the practice of na- tions is to assert and enforce the rule that confiscation is law- ful. The many treaties existing between nations modifying the right as to certain persons under particular circumstances impliedly admit the integrity of the rule. 1 175. "A conquering State," says Manning, "enters upon the rights of the sovereign of a vanquished State; national revenues pass to the victor, but the immovable property of private individuals is not liable to be seized by the rights of war. With regard to movable property the law is not so moderate in its treatment; movable property is still consid- ered as liable to seizure. This right the invader compounds for requisitions and forced contributions; and, as long as these are supplied, all other movable property is respected by the hostile force, except in towns taken by assault or as punish- ment for enemy's conduct." He then points out, what ex- perience has so often proved to be true, that requisitions reg- ularly made in a hostile country have a great advantage over pillage; to the invader, because it supplies him regularly; and to the people, who have then to furnish only what the army reasonably requires. 2 176. The right to confiscate enemy property has been ju- dicially determined. In the case of Brown v. the United States the principle was assumed by the Supreme Court that war gave a belligerent the right to seize the persons and confiscate the property of the enemy wherever found ; and while the mitiga- tions of this rigid rule, which modern practices have intro- duced, might more or less affect the exercise of the right, they could not impair the right itself. That remains perfect, and when the sovereign authority shall choose to bring it into operation, the judicial department gives effect to its will. Until that shall be expressed, the judicial power of condemna- tion does not exist. In the opinion of the court, the power of confiscating enemy property is in the legislature, and without a legislative act authorizing confiscation it could not be judi- I. Kent, I., p. 56, note i. 2. Pages 182-83. RIGHTS REGAHDINQ PRIVATE PROPERTY. 1 79 ■cially^condemned; further, that the act of Congress of 1812, ■declaring war against Great Britain, was not such an act; something further was necessary. 1 The property in this case was on land, was that of a British subject, was located within the territory of the United States, and was in the custody of an American citizen. The court held that the rule for the case must be one that could be ap- plied to all private property. Having decided that such prop- erty was subject to forfeiture by the law of nations, the only question remaining was one of municipal or constitutional law ; that is, of the validity and authority of the proceedings under the Constitution of the United States. In interpreting the ■Constitution the court, on points of public and general interest, looked at it in the light of international law. Viewed in that light, the existence of war could not be held by its own force and vigor to transfer the title in enemy property to the United States ; it only clothed the Government with the right to con- fiscate or not at its option. The court divided upon the consequences of this doctrine. Judge Story, with the minority, held that the right to confiscate, •existing, the power to enforce confiscation in each case belonged to the Executive Department of the Government as an applica- tion of known rules of "war. It was in this view of the case a part of the same power under which the Executive, on the dec- laration of war, establishes blockades, orders the capture of iinemy property at sea, and of contraband goods. But the majority held that the Executive could not order confiscation unless the will of the nation to that effect had been expressed by the authoritative organ, which was Congress. This decision asserted the right to confiscate private prop- erty of enemy subjects contrary to much modern practice and authority. The point that was gained over the ancient and violent rule consisted in the rendering a special act of Congress necessary to authorize confiscation. 2 1. 8 Crmch, no. 2. Wheaton, Part IV., Sec. 304, Dana's Jiote, 156; Kent, 1., 6n. l8o M [LIT ART GOVERNMENT AND MARTIAL LAW. 177. Confiscation of private enemy property, which is thus judicially determined the modern laws of war sanction, is not for punishment of crime. It results from the relation of the property to the opposing belligerent ; a relation in which it has been brought because of its ownership. It is immaterial whether the owner be an alien or a friend or even a citizen or subj ect of the power that appropriates .the property. A resi- dent of a hostile country whatev>;r his nativity or allegiance is regarded as a subject of that country, and is considered by that residence as having a hostile character impressed upon him. 1 His property is liable to confiscation under the laws of war regardless of nationality. The whole doctrine of confisca- tion is built upon the idea that it is a means of coercion, which, by depriving an enemy of property, whether located within his territory or outside of it, impairs his ability to resist the appropriating government, while at the same time it furnishes the latter with means for carrying on the war. Hence any property which the enemy can use, either by actual appro- priation or by the exercise of control over its owner, or which the adherents of the enemy have the power of devoting to the enemy's use, is a proper subject of confiscation. 2 178. Such is the rule when war is waged between inde- pendent States. The rights of confiscation are the same in the case of civil war. The general usage of nations regards such a war as entitling both the contending parties to all the rights of war each as against the other, and even as it respects neutral nations. 3 Certainly because the war is civil the legitimate government is shorn of none of those rights which belong to belligerency. It would be absurd to hold that while in a for- eign war enemy property may be captured and confiscated as y means of bringing the struggle to a successful completion, ir a civil war requiring quite as urgently the use of all available means to weaken those in arms against the legitimate govern- ment, the right to confiscate property which may strengthen I. The Venus, 8 Cr., 279 2. Miller i. U. S., 11 VVall„ pp. 305-06, 3 Wheaton, Part IV., Chap, i . See 296. RIGHTS REGARDING PRIVATE PROPERTY. l8l the rebels does not exist. There is no such distinction to be made. Every reason for the allowance of a right to confiscate in case of foreign wars exists in full force when the war is do- mestic or civil. 1 79. The power of Congress to legislate regarding confiscar tion of enemy property is found in that clause of the Constitu- tion granting th; legislature power to make rules concerning captures on land and water. 1 It is a branch of what the Su- preme Court of the United States has called "the war powers of the Government." Upon the exercise of these powers no re- strictions are imposed. They include the power to prosecute war by ell means in which it legitimately may be waged. If there were any doubt as to this, including the right to seize and confiscate all property of an enemy, it is set at rest by the express grant of the power mentioned to make rules respecting captures. 2 180. Diu-ing the foreign wars waged by the United States, under the government of the Constitution, no acts of Congress have provided for the confiscation of enemy property. That property has indeed been appropriated. But it was done under the direction of the Executive Department in conformity with the laws of war. During the Civil War, however, this power of Congress was freely and firmly exercised. Yet so benig- nantly was it used as to excite admiration for the magnanimous measiu-es of government at a time when it was engaged in a desperate struggle for existence. Judicial decision advanced at equal pace with legislative action, making a clear path for the guidance of those upon whom may devolve hereafter the duty of determining the belligerent policy of the nation. "Property in insurgent States," said the Supreme Court in United States v. Klein, 3 "may be distributed into four classes, ist, that which belonged to the hostile organizations or was em- ployed in actual hostilities on land; 2d, that which at sea be- came lawful subject of capture and. prize; 3d, that which be- came the subject of confiscation; 4th, a peculiar description, I ., Act I. Sec. 8, clause 10, 2.1 1 Wallace, 305. 3. 13 Wallace, 136. l82 MILITARY GOVERNMENT AND MARTIAL LAW. known only in the recent war, called captured and abandoned property. The first of these descriptions of property, like prop- erty of other similar kinds in ordinary international wars, be- came, wherever taken, ipso facto, the property of the United States. The second comprehends ships and vessels with their cargoes belonging to the insurgents or employed in aid of them; but property in these was not changed by capture alone, but by regular judicial proceeding and sentence. Almost all the prop- erty o: the people in the insurgent States was included in the third description, for after sixty days from the date of the President's proclamation of July 25, 1862,1 all the estates and property of those who did not cease to aid, countenance, and abet the rebellion became liable to seizure and confiscation, and it was made the duty of the President to cause the same to be seized and applied either specifically or in the proceeds thereof to the support of the army. 2 But it is to be observed that tribunals and proceedings were provided by which alone such property could be condemned, and without which it remained unaffected in thi possession of the proprietors." 1 8 1. -The first act authorizing the confiscation of property was that of August 6, 186 r.s It provided that if, during the then existing or any future insurrection against the govern- ment, after proclamation by the President that the laws of the United States are opposed by combinations too powerful to be suppressed by the ordinary machinery of government author- ized for that purpose, then all that property of whatsoever kind or description used with the consent of the owner to further the interests of the insurrection should be lawful sub- ject of priz ' of capture wherever found, and it was made the Axxtv of the President to cause the same to be seized, confiscated, and condemned. Proceedings for condemnation were to be prosecuted by the Attorney-General or District Attorneys of the United States where theproperty might atthe time be, and before a district or circuit court of the United States having I. 12 Statutes at Large, p. 1266. 2. Act July 17, 1862, 12 Statutes at Large, 590 3. Chap. 60, 12 Statutes at Large, 319. RIGHTS REGARDING PRIVATE PROPERTY. 1 83 jurisdiction of the amount. The act extended to all descrip- tions of property, real or personal, on land or on water. The Supreme Court decided that its enactment was in virtue of the war powers of the government. It defined no crime. It imposed no penalty. It declared nothing unlawful. It was not, therefore, a mere municipal regulation for the punishment of crime. It was aimed exclusively at the seizure and con- fiscation of property used, or intended to be used, to aid, abet, or promote the rebellion, then a war, or to maintain the war against the government. ^ It treated the property as the guilty subject. The second confiscation act was that of July 17, 1862.* The fifth section enacted that to ensure the speedy termination of the rebellion it was made the duty of the President to cause the seizure of all the estates and property, money, stocks, credits, and effects of any person thereafter acting as an officer of the rebel army or navy, President, Vice-President, member of Congress, judge of any court, cabinet officer, foreign minis- ter, commissioner or counsel of the so-called Confederate States, anyone acting as governor, member of a convention or legisla- ture, or judge of any court of any of the so-called Confederate States, or any person who, having held an office of honor, trust, or profit under the United States should thereafter hold an office in the so-called Confederate States, or any person there- after holding office or agency under the authority of the said States or any of them, or anyone in the loyal portions of the United States who should thereafter assist and give aid and comfort to the rebellion, and to apply and use the same and the proceeds thereof for the support of the army of the United States. The sixth section provided that all persons other than those before named, within any State or Territory of the United States being engaged in armed rebellion f.gainst the govern- ment th '.reof, or aiding or abetting such rebellion, and not ceasing so to do and returning to his allegiance within sixty I II Wallace, .508. 2. Chap. 105, Sees. 5, 6, 12 Statutes at Large, pp. 590-91 1 84 MILITAKT GOVBBNJCBNT AND MAET-IAL LAW. days after proclamation duly riiade by the President, should in like manner forfeit his property. Proceedings in rem. for the condemnation of such property were to be pursued before any district couirt of the United States, of the District of Columbia, or a Territorial court where any of the property might be found. These two confiscation acts were carefully and elaborately considered by the Supreme Court, and pronounced constitu- tional. 1 In so far as they provided for the confiscation of reb J property it was remarked that they were an exercise of the war powers of the government, and not of its sovereignty or muni- cipal power. Consequently they were not in conflict with the restrictions of the fifth and sixth amendments. Those who Tvere engaged in acts of rebellion within the purview of these acts were enemies of the United States under the law of nations. They were therefore subject to all laws applicable to such enemies, including those for the confiscation of property. Whatever may be true in regard to a rebellion of lesser magni- tude it must be that when it has become a recognized war those who are engaged in it are to be regarded as enemies. Nor were those alone enemies who were inhabitants of the rebel States. In a foreign war those who reside in enemy territory are not alone enemies. It is true that the presumption is that all such residents are enemies, even though not participants in the war and though subjects of a neutral State, or even subjects or citizens of the government prosecuting the war against the State within which they reside and when military government is established. But that does not exhaust the list of those who may be considered enemies and proceeded against accordingly. Those may be enemies under the laws of nations who are not r:;sidents of the enemy territory. They may be more potent and dangerous foes than though they were such residents. By uniting themselves to tho enemy's cause they cast in their lot with his. They cannot be permitted to , I Miller r. U. S., ii Wallace, .?o8.. RIGHTS REQAHDING PRITATB PROPERTY. 1 85 claim exemptions which the subjects of the enemy do not pos- sess. Depriving them of their property is a blow against the hostile power quite as effective, tending as directly to weaken the belligerent with whom they act, as would be confiscating ths property of a non-combatant resident. This is th; estab- lished law of nations in case of a foreign war. Those are placed in the category of enemies who act with, or aid or abet or give comfort to the opposing belligerent, though they may not be residents of enemy territory. The court therefore concluded that all the classes of persons described in the pre- ceding confiscation acts were enemies within the laws and usages of war, because the principles applicable in case of a foreign, determine likewise who are enemies in a civil war. Therefore, not only those who resided in the insurrectionary States, but those who inhabited loyal districts, yet who assisted, aided, and gave comfort to the rebellion, were enemies whose property was subject to confiscation in the manner pointed out in the acts, i It is particularly worthy of notice that, in no instance, was property to be confiscated under the terms of these acts except upon the condemnation by decree of the civil courts. 182. The confiscation acts were rendered necessary by the obstinacy and magnitude of the resistance to the supremacy of the national authority. To overcome this resistance and to carry on the war successfully the entire people of the States in rebelHon, as well as those in loyal States who aided the rebellion, were considered public enemies. 2 But it was well known that many persons in the rebel States whom necessity required should be treated as enemies were in fact friends, and adhered with fidelity to the national cause. Compelled to live among those who were combined to overthrow the government, those of this class who lived in insurrectionary territory were liable at all times to be stripped of their property by rebel authori' ties. Although technically enemies, the National Government I. II Wallace, pp. 306-13. 2. See ante, and Milleri;. U. S., 11 WaHace, pp. 306-13; U. S. v. Anderson, 9 Wallace, p. 64. j 1 86 MILITAEY GOVEUNMENT AND MARTIAL LAW. resolved in every way possible to treat them as friends. ^ No more acceptable method of doing this could be devised than one which would secure them remuneration for their property sacrificed dtning the progress of the war. This was done by the act of March 12, 1863, commonly known as the abandoned and captured property act.^ 183. As the war progressed the Union forces in the field captured much property and much remained in the country when the enemy retreated without apparent ownership. It was right that all this property should be collected and disposed of. While providing for this Congress recognized the status of the loyal Southern people, and distinguished between the property owned by them and the property of the disloyal. By the act just mentioned the Government was constituted a trustee for so much of the property as belonged to the former class, and, while directing that all should be sold and the pro- ceeds paid into the Treasury, gave to this class an opportunity, at any time within two years after the suppression of the re- bellion, of bringing suit in the Court of Claims and establishing their right to the proceeds of that portion of it which they owned, requiring from them nothing but proof of loyalty and ownership. 3 This beneficent measure was. indeed general in its terms, protecting alike all loyal owners of property whether residing North or South, but the moving caUse prompting to it was the trying situation of loyal Southerners, who, amidst greatest difiiculties, heroically adhered to the Union cause, and practically it was for their benefit alone that the law was enacted. The property thus abandoned or captured was to be col- lected by special agents of the Treasury, and the only property §0 abandoned or captured in the insurrectionary districts not made subject to collection in this manner was that which either had been used or was intended to be used for waging or carrying on war against the United States, such as arms, . I. Instructions to U. S. Armies in the Field, Sec. 10, clauses 7, 8. 2- Chap. 120, 12 Statutes at I^arge, 12, 820. 3. 9 Wallace, p. 65. EIGHTS REGARDING PRIVATE PROPERTY. 1 87 ordnance, ships, steamboats, or other water-craft, and the furniture, forage, military supplies, or other munitions of war. This last description of prop.^rty upon coming into the pos- session of the Union authorities was at once under the laws of war forfeited to the United States. Nor did the act of March 12, 1863, apply to any lawful maritime prize by the naval forces of the United States; but all persons in the military ser- vice, without distinction, and members of the naval service upon the inland waters into whose possession such abandoned property, as cotton, sugar, rice, or tobacco should come, were required to turn the same over to the special agents of the Treasury, before mentioned. It was further provided that all property coming into loyal from insurrectionary districts, through or by any other persons than these agents or a lawful clearance by the proper Treasury official, should be confiscated to the use of the Government. While the confiscation acts were considered penal, that now under consideration has been regarded as remedial in its nature, and has universally received an interpretation by the Supreme Court of the United States in accord with the generous spirit which prompted Congress to pass the law. i 184. The acts of August 6, 1861, and July 17, 1862, before cited, ^ provide for confiscating private property only. In no instance were titles divested unless in pursuance of a judgment rendered after due legal proceedings. The Government recog- nized to the fullest extent the modern law of nations which exempts private property of non-combatant enemies from capture as booty of war. Even the right to confiscate property under these acts was sparingly exercised. The cases were few indeed in which the property of any not engaged in actual hostilities was subjected to seizure and sale. 3 185. The duty of determining what enemy property is subject to confiscation rests exclusively with Congress; still. I 6 Wallace, p. 56; ibid., p. 531; 13 ibid., p. 13S. 2. Sec. i8i, onte. 3. U. .S.v Klein, 13 Wallace, p. 137. 1 88 MILITARY GOVERNMENT AND MARTIAL LAW. as under the laws of war, a commander has d,n unquestioned right to seize and appropriate to the public service the private property of enemies, as well as public property of the opposing belligerent, when emergencies demand the exercise of that power, it becomes under military government an interesting question as to where the boundary line l^es between this ex- clusive power of Congress and the rights of the commander under the laws of war. The right to confiscate does not belong to any military commander. He has no original authority in the premises. If he confiscate property at all it will be pursuant to the provisions of statutory law, and not the laws of war. 1 86. The decision of the Supreme Court declaring illegal the action of the military commander at New Orleans who attempted in 1863 to confiscate certain moneys cr credits held by the banks in that city for the benefit of rebels or rebel cor- porations, has been mentioned. 1 The decision was based upon two grounds : first, because of the pledge given by the captor in taking possession the city that rights of property of whatever kind would be held inviolate, subject only to the laws of the United States, and the order in question was a violation of that pledge ; second, because it was an attempt to confiscate private property and not a seizure for the immediate use of the army, nor an attempt to seize it flagrante bello. The pledge men- tioned did not exempt property from liability to confiscation if in truth it was enemy property; but after it was given, private property there situated was not subject to military seizure as booty of war. "But admitting as we do," said the court, "that private property remained subject to confiscation, and also that the proclamation [of the captor of the city] ap- plied exclusively to the inhabitants of the district, it is unde* niable that confiscation was possible only to the extent and in the manner provided by the acts of Congress of August 6, 1861, and July 17, 1862. No others authorized the confiscation of I Ante, vSec. 24. RIGHTS EEGAEDING PBITATE PEOPEETT. 1 89 private property, and they prescribed the manner in which alone confiscation could be made. They designated Govern- ment agents for seizing enemy's property, and they directed the mode of procedure for its condemnation in the courts. The system devised was necessarily excliisive. No authority was given a military commandant as such to effect any con- fiscation. And under neither of the acts was the property of a banking institution made confiscable." 187. Congress is authorized to make all rules concerning property of every kind captured either from individual enemies or from the opposing belligerent government. But the Exec- utive Department, as its ofiBcers command the armies in enemy territory, must judge of the measures essential to success ; and unless restrained by legislation, they have only to consider whether their measures are in accord with the acknowledged laws of war. Upon them rests responsibility for the success of the national arms, beating the enemy in the field, overrunning his territory, and destroying the sources of his power. They are indeed forbidden to confiscate enemy property unless pre- viously authorized by law. If the legislature interposes, its mandate must be obeyed. But if this be not done commanders under the laws of war are permitted to appropriate enemy property which may come into their possession, if either the exigency of the public service demands or expediency counsels it as a means to the successful prosecution of hostilities. This is one of the fundamental powers which attaches to a com- mander conducting a campaign in enemy country. If aught be disapproved by the legislature, it is within their power to narrow the field within which belligerent rights shall be exer- cised. Until such limits be assigned, the President and mil- itary commanders under him must have every authority which the laws of war attach to their stations to be used in their sound discretion. Without this power the Executive Department would be shorn of some of the most efficacious, even the indispensable means of successfully prosecuting hostilities; and as to that I go MIIvlTARY GOVERNMENT AND MARTIAI^ LAW. department the nation has confided the duty of conducting all military operations, it must be given the incidental powers necessary to perform that duty with promptness and success. This conclusion flows from well-recognized principles. The whole executive power of the nation being vested in the Presi- dent, who.in carrying on war.of necessity generally acts through subordinate commanders, a sound construction of the Consti- tution must allow to the President and these subordinates a discretion with respect to the means by which the powers it confers are to be carried into execution, and which will enable them to perform their duties in the moat effective manner.* The rule has the sanction of practice in war, is confirmed by the writings of publicists, and by decisions of the highest courts. In September, 1862, a subordinate military commander in I/OU- isiana seized the private property of one of the inhabitants for the use of the troops. Suit was entered against the officer, and the cause finally coming before the Supreme Court of the United States, that tribunal in the course of its opinion re- marked: "There could be no doubt of the right of the army to appropriate any property there, although belonging to pri- vate individuals, which was necessary for its support or con- venient for its use. This was a belligerent right which was not extinguished by the occupation of the country, although the necessity for its exercise was thereby lessened. However exempt from seizure on other grounds private property may have been, it was always subject to be appropriated when re- quired by the necessities or convenience of the army, though the owner of the property taken in such case may have had a just claim against the government for indemnity." ^ What shall be the subject of capture, as against his enemy, is always within the control of every belligerent. Whatever he orders is a justification to. his followers. He must answer in his political capacity for all his violations of the settled usages of I. Fleming 1). Page, 9 How., p. 615. 2. 100 U. S., p. 167. RIGHTS REGARDING PRIVATE PROPERTY. I91 dvilized warfare. His subjects stand behind him for pro- tection.* 188. Nor can a greater mistake be made than to hamper the movements of a commander by a too strict surveillance exercised from a point far removed from the seat of war. It is impossible from that distance to give due weight to the winds of suspicion, of defeat, of success that sweep only to be felt, though not seen, over the theatre of contest. On that theatre alone in a really great war are mighty matters deter- mined, and by the wager of battle. No more dangerous ex- periment can be essayed than to criticise and from a distance attempt to control the measures and movements of the re- sponsible commander. It may pave the road to defeat or mediocre results; it never can the road to victory and glory. 189. The government of military occupation has complete control of lands and immovable private property of the enemy in the occupied district. The fruits, rents, and profits issuing I.. 92 U. S., p. 195. Note. — On page 300, Volume 4, of his Memoirs, Napoleon raises this question: Is a general-in-chief completely controlled by the order of a minister or prince far from the field of operations, and ill informed or uninformed of the latest posture of affairs? He argues against the proposition. 1. If he undertakes to execute a plan which he considers bad and likely to prove disastrous, he is criminal; he should make representations, insist upon a change, and resign rather than become the instrument of his men's destruction. 2. The general-in-chief who, in consequence of superior orders, fights a battle that he is certain to lose is criminal. 3. The orders of the absent minister or prince are to be followed in spirit ; but they are not technically military orders to the general-in-chief demanding passive obedience. 4. Military orders do not require passive obedience unless given by a superior present at the time, knowing all attendant circumstances, listen- ing to objections. (The above situation described his conduct while in command in Italy 1796-97, when the Directory were writing him essays regarding his future military operations.) 192 MILITARY GOVERNMENT AND MARTIAL LAW. therefrom and therefore under the control of that government, whose officials may lawfully claim and receive them.' Im- movable private property is not confiscable, and although the conqueror might alienate it, the purchaser would not have a good title unless the temporary became permanent conquest.^ It has generally been held, however, that contracts or agree- ments which the military authorities may make with indi- viduals regarding such property will be valid only so long as these authorities retain control of it, and will cease on its res- toration to or recovery by its former owner.' Without doubt this is the general rule. In the nature of things contracts en- tered into by the invader in territory he has overrun lose their efficacy when his dominion ceases. 190. Still, as was illustrated in the case of New Orleans v. Steamship Company,* circumstances may render such con- tracts valid even beyond that time. The Federal military authorities held New Orleans from May i, 1862, until March 18, 1866, when its control was transferred to the civil city author- ities. Between these dates it was subject to military govern- ment as a conquered foreign province.^ In the exercise of his authority under the laws of war the commanding general appointed a mayor of the city and certain boards for carrying on municipal affairs. On July 8, 1865, this mayor, acting con- jointly with the boards mentioned, made a lease of certain city property for the term of ten years. Though not so directly expressed, yet in fact this was, and was well understood to be, the act of the government of military occupation. When, therefore, the civil authorities resumed control this lease had yet nine years and three months to run. The city now essayed to oust the lessees. It was claimed that the government of mihtary occupation, and therefore the miHtary mayor and boards, i ts appointees, had no authority to make such a lease j I. Halleck, Chap. 32, Sec. 4. 2. Manning, pp. 182-83. 3. Vattel, Book III., Chap. 13, Sees. 197, 198; Opinions Attorney-General, Vol. 22, p. 410. 4. 20 Wallace, p. 387. 5. Ibid., p. 3^3; 2 Black, p. 636; 3. Wallace, 417; 6 ibid., p. i. EIGHTS KEQARDINa PRIVATE PROPEKTY. 1 93 that whatever rights or powers they possessed ceased with the termination of military rule; and that they could no more create an interest to last beyond that time than could a tenant for years create one to last beyond his term. But the Supreme Court held that the lease was good. It was not to be disputed, the court observed, that the government of military occupa- tion might appoint all the necessary officers under it and clothe them with necessary authority to carry on its affairs. It might prescribe the revenue to be raised and direct their disposition. It could do anything to strengthen itself and weaken the enemy. The laws and usages of war form the only limit to the powers that can be exercised in such cases. Amidst such surroundings those laws and usages took the place of the laws and Constitution of the United States as applied in times of peace. Granting, however, that the lease of this property during the continuance of the military possession of the United States was within the scope of military authority, it was claimed by the restored city authorities that when military control termi- nated the lease fell with it. The Supreme Court decided otherwise. " V\'e cannot," said that court, "take this view of the subject. The question arises whether the instrument was a fair and reasonable exercise of the authority under which it was made. A large amount of money was to be expended and was expended by the lessees. The lease was liable to be annulled if the expenditm-es were not made and the work it called for done within the time specified. The war might last many years, or it might at any time cease, and the State and city be restored to their normal condition. The improvements to be made were important to.the welfare and prosperity of the city. The company had a right to use them only for a limited time. The company was to keep them in repair during the life of the lease, and at its termination they were all to become the property of the city. In the meantime the rental of eight thousand dollars a year was to be paid. When the military authorities retired the rent-notes were all handed oyer to. the,., 13— 194 MILITAET QOVEENMENT AND MABTIAL LAW. city. The city took the place of the^United States and sue ceeded to all their rights under the contract, i The lessees be- came bound to the city in all respects as it had before been found to the covenantees in the lease. The city thereafter collected one of the notes subsequently due.^and it holds the fund without an offer to retiu-n it while conducting this liti- gation. It is also to be borne in mind that there has been no offer of adjustment touching the lasting and valuable improve- ments made by the company (lessees), nor is there any com- plaint that the company has failed in any particular to fulfill their contract. We think the lease was a fair and reasonable exercise of the power vested in the military mayor and the two boards." 2 Unquestionably this opinion, whatever its merits in the abstract, is not strictly in accord with the generally accepted authorities regarding the time-limit of contracts entered into by military officials under military government. The court did not question the soundness of the principle contended for by these authorities, that such contracts cease with the power which creates them. But the peculiar features of the case were held to be sufficiently striking, the claims of the lessees to rest so clearly and firmly on justice and equity as to remove their cause from the operation of the general rule. 191. The laws of nations, it has been said, are based oii common sense, and the laws of war are a branch thereof. 3 This opinion of the Supreme Coturt rests on reason. It should, therefore, be considered as establishing the rule applicable to this and similar cases whatever the nation involved and wher- ever the military force be employed. The laws of nations are not inflexible, like the rescripts of the Roman emperors. While possessing the stability of a recognized code, they change with circumstances, improve with time, and adapt themselves to the intellectual and material progress of peoples. When, therefore, as in this instance, the teachings of the past are at I. U. S V. McRea, 8 Law Reports, Equity Cases, p. 75. 2. 20 Wal- lace, pp. 394-95. 3. 2 Black p. 667. ^GHTS REGARDING PRIVATE PROPERTY. 1 95 variance with^ the better thought of the more enlightened present, it is n^t only allowable, but it is eminently proper that the former sjiould be disregarded and the law be estab- lished upon principles in keeping with the more advanced state of society. It happened in this instance that the court pronouncing the opinion was the supreme judicial tribunal of a State which had recently triumphed over rebellion. It was in an insiurectionary district involved in this rebellion that the military government was established, the proper limits of whose authority was in- volved in the questions here decided. That rebellion failed and the district thus subject to a military government was again and permanently brought under the undisputed dominion of the parent State. The vanquished had no alternative but to accept the edict of the conqueror thus judicially expressed. But the opinion rests upon better and firmer ground than this. It is founded upon principles of common honesty and public utility. It shows the necessity, even amidst the trying scenes of war, of good faith between those who confer and those who accept benefits flowing from public-spirited enterprises, i 192. Cobbett states that although acts done in a country by an invader cannot be nullified in so far as they have produced effects during the occupation, they became inoperative so soon as the legitimate government is restored. He instances the case in the Franco-German War of a wood contract entered into by the Germans with certain parties to cut wood in French forests. Peace found the contract incomplete. The question arose, should it be completed under the original covenant? The contractors desired to complete it, and they urged that the German government, having acted within their right in making the contract, the restored French government ought to permit it to go on to completion. The latter held that this restoration annulled the contract. They made in the supplemental con- ^^ention of nth December, 1871, a declaration to that effect, I. Opinions Attorneys-General, Vol, 23, p. 562; ibid., Vol. 22, p. 545; thid., Vol. 22, p. 410. 196 MILITARY GOVERNMENT AND MARTIAL LAW. which was treated by the Germans as conforming to correct principles, i 193. An interesting case arose in Luzon, P. I., in connec- tion with the Dagupan Railroad. It was a foreign corporation having, as alleged, $5,353,700.89 invested. The Spanish gov- ernment had agreed to secure it 8 per cent on the investment, including earnings of road. On the question that the United States succeeded to the sovereignty of Spain there, the corpora- tion wished the former to make this guarantee good, but the proposition was rejected. The United States Commissioners at Paris expressly refused to include a clause in the treaty of peace binding their Government to assume the colonial pecuniary obligations of Spain. But the Attorney-General expressed the opinion that the provinces of Luzon, through which the railroad ran and which were benefited by it, and also the permanent Philippine government, were equitably bound to meet the obligations. During the period of the military government this railroad was seized, the government making fair compensation for its use, wear and tear. 2 194. No restriction exists to prevent the commanding gen- eral in enemy territory from subsisting his army on supplies gathered there, or appropriating property which in any wise is useful for military ptuposes. The experience of every army which penetrated enemy country during the rebellion bears testimony to this fact. While property might not be confis- cated — ^that is, seized to be sold and the proceeds tm-ned into the national Treasiu-y, everjdihing that was necessary for the sustenance, transportation, clothing, and bivouacing of the troops was appropriated without question. What compen- sation, if any, shall be given those whose property is taken it is for the dominant power to determine. 195. Administrative acts taken by the military government having no political signification generally remain in force I. Page 141 ; see also Hall, p. 4.49 et seq. 2. Opinions Att'y Gen., Vol. 83, p. 181 ; Magoon, p. 179. EIGHTS REGARDING PRIVATE PROPERTY. tgf after it has cease^. This is true of administrative acts in thafe. narrower meaniiig — financial, economical, educational — as. well as of judicialN^cts, judgments in civil and criminal pro- ceeding. As the laV of war authorizes the military govern- ment to regulate and, conduct the administration, and as it is necessary to the general public interests that matters of detail should be transacted, afld as finally there is no political consid- eration in the way, the recognition of that which has been ex- ecuted is a consequence of the continuation of law and of the uninterrupted exercise of administrative functions. The an- nulling of all judgments rendered in the interval by cotuts, the personnel of which has perhaps been changed, or repudia- tion of decisions of the newly-filled offices of finance or police, would be a misconception of the true principle and would create numberless complications.! 196. In times past it was a common practice for European nations to apportion out certain of the spoils of war on land, as it is everywhere done on sea, to the soldiers as an incentive, apparently, to bravery. 2 The wars springing out of and fol- lowing the French Revolution afford many illustrations. But since then public sentiment has set in strongly against the practice; and it is believed that recent wars, particularly among the Christian nations, present few examples of the sol- diery being stimulated to exertions by so objectionable methods. 197. In the United States service the disposition of property taken from the enemy is regulated by statute. The Articles of War direct that all public stores so obtained shall be secured for the public service, and for neglect of this the commanding officer is answerable; 3 while death or such other punishment as a court-martial shall direct is denounced against any officer who quits his post or colors to plunder or pillage. 4 This has ever been the law as applicable to the United States Army, and being embodied in the British Articles of War, these rules were obligatory upon the colonial forces before the American I. Bluntsehli, I^aws of War, I., Sec. 222. 2. Vattel, Book III., Chap. IX., Sec 164. 3. 9 Art. of War. 4. XLII.. Art. of War. 198 MILITARY GOVERNMENT AND MARTIAL LAW. Revolution. Similar rules were enforced with rigid exactness during Rome's greatest prosperity. The soldier was obliged to bring into the public stock all the booty he had taken. This the general caused to be sold, and after distributing a part among the soldiers according to rank, he consigned the residue to the public treasury. 1 It is triie that the practice of dividing up booty was here legalized, but the more important principle was inflexibly enforced that all property taken from the enemy belonged primarily to the State. If any soldier partook of the spoils of war it was through the favor of the State. In this way that ruthless robbery which has disgraced some modern wars, notably in the Spanish Penin- sula at the beginning of this century, when beauty and booty were deemed to belong of right to him who could first lay violent hands upon them, was avoided with all its barbarism and demoralizing influences. 198. The practices of modern times have tended to soften the severity of warlike operations on land. 2 This is illustrated in the orders of the President of the United States of July 22, 1862, directing all military commanders within certain of the States then in insurrection, in an orderly manner to seize and ■use any property, real or personal, which might be necessary or convenient for their several commands as supplies or for other military purposes. While such property might be de- stroyed in the attainment of proper military objects, this was never to be done in malice. 3 Even this, however, was carrying the principle of appropri- ating enemy private property beyond what is considered by some writers as properly permissible. 4 "The general usage now is," says Kent, "not to touch private property upon land without making compensation, unless in special cases dictated by the necessary operations of war, or when capttued in places carried by storm and which repelled all the overtures for a ca- I. Vattel, Book III., Chap. 9, Sec. 164. 2. Wheaton, Sec. 355; Kent, 1., pp-92 93; Woolsey, Sec. 136. 3. G. O. 109, A. G. O., 1862. 4. Kent, I- 91- RIGHTS REGARDING PRIVATE PROPERTY. 1 99 pitulation." Bui this question is one of expediency rather than of law. 1 The appropriating power may not have the funds to pay for supplies. It may have come to that point in its financial affairs when the rule that war must be made to sustiin war is all that is left to it. The French empire was reduced to these straits during the latter part of the wars of Napoleon. So in great degree was the government of the United States, judging from the tbove quoted order in the early stdges of the Civil Wax. It is a matter of common history that on every theatre of operations the rule established by that order governed the various commanding generals of the Union forces in supplying their armies, in part at least, from the resources of the enemy country. In the great cavalry raids, which have become a prominent feature of recent w irs, where large mounted foices traversing extensive parts of enemy territory essay to break up his communications, de- stroy his somrces of supply, and so to paralyze his manufac- turing industries, it is essential that sustenance shall, so far as practicable, be gatheied fiom the district comprising the field of opeiations. In such cases the requisite celerity of movement renders this course absolutely necessary. In the slower m-Tvements cf large armies the same necessity for sub- sisting off the enemy's country may not exist, yet the plan may be resorted to as a matter of public policy. 199. It will be conceded by all familiar vvith the practice of armies in the field, as well as the views of writers of authority, that the Hague Conference of 1899 extended the piinciples that should govern amidst the clash of arms to the verge of safe amelioration. It had scarcely adjourned until the China Relief Expedition seemingly gave the more important sig- natory powers opportunity to put their humanitarian theories to the test. Unless the troops have- been much maligned, the practical reality fell far below the elevated stand taken. in the conference in this behalf. I. Kent, I., 92 (b); Bluntschli, Laws of War, I., Sees. 7, 143, 144. 200 MILITAHT GOVERNMENT AND MABTIAt IjAW. 200. There is a distinction between the rigMs of property captured on sea and on land. The nice questions with regard to the right to appropriate the latter which have troubled governments and their generals have not arisen concerning sea captures. The object of maritime warfare is the destruction of the enemy's commerce and navigation. Capture and de- struction of private property at sea has ever been deemed essential to that end, and it is allowed to the fullest extent by the law and practice of nations. A determined effort has been made by many eminent authorities to modify the rule as to property on l?nd, and to some extent successfully The manner in which the restdts of such efforts manifest themselves is in a gradual moulding of public and official opinion in favor of more liberal treatment of the enemy. The view is gaining giound that wanton destruction or useless appropriation of piivate property on land should not be permitted. While there is nothing to absolutely prevent it, the practice is universally condemned among civilized nations, and gradually is becoming obsolete. Nothing definite or inflexible is deterinined by this ; the rule of appropriation is left to vary with circumstances, and yet the position of non-combatants and others in enemy country has been greatly ameliorated through these instru- mentalities. 201. The laws of war recognize certain modes of coercion as justifiable. They may be exercised upon material objects or upon peisons. The former may be a preferable mode. The taking of private pi operty is an illustration of this. When lawfully taken it is because it is of such a character or so sit- uated as to make its capture a proper means of coercing the opposing belligerent. If he have an interest in the property which is available to him for the purpose of war, it is prima facie a subject of capttire. He has such an interest in all con- vertible and mercantile property either within his control or belonging to persons who are living under his control, and this whether it be on land or sea ; for it is a subject dther of taxation, contribution, appropriation, or confiscation. The BIGHTS EEGABDINQ PRIVATE PROPERTY. 20I policy of modem times, as just mentioned, has been to estsb- lish^the rule that on land property will not be taken if it be not liable to direct use in war. i Some of the reasons for this are the infinite varieties of such property — from things almost sacred to things purely merchantable; the difficulty of dis- criminating among these varieties; the need of much of it to support the lives of the inhabitants; the unlimited rdnge of places and objects that would be open to the military, ind the moral dangers attending searches and captures in house- holds and among non-combalants. 2 The rule extends to cases of absolute and unqualified con- quest. Even when the conquest of a coimtry is confirmed by the unconditional relinquishment of the sovereignty of the formei- owner, there can be no general or partial tiansmutation of private property in viitue of any lights of conquest. Private rights and private property, both movable and immovable, are in general unaffected by the operations of war. 202. Such is the tenor of the instructions for the United States Armies in the field. Here it is announced thit the United States acknowledges and protects in hostile coim tries occupied by them religion and morality, strictly private prop- erty, the person:-! of the inhabitants, especially those of women, and the sacredness of domestic relations. Offenders against these rules aie rigorously punished. But the rule does not in- terfere with the right of the invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropri- ate property, especially houses, lands, boats, ships and churches, for temporary and military uses. Private property, unless forfeited by crimes or by offences of the owner, is to be seized only by way of military necessity for the support or other benefit of the army. If the owner has not fled the commander wiU give receipts for it with a view to possible indemnity. 203. To the most generous construction of the rule that private enemy property is not to be taken without compensa- I. BluatschK, I., Sec. 144; Woolsey, stb ed., Sec. 126. 2. Wheaton, Part IV., Sec. 355, Dana's note, p. 171. 202 MILITARY GOVEENMENT AND MAETIAL LAW. tion there are certain well-established exceptions. There may be others, but certainly the following are generally recognized' First, seizures by way of penalty for military offences; secotid, foicod contributions for the support of the invading armies, or as an indemnity for the expenses of maintaining order and af- fording protection to the conquered inhabitants; third, prop- erty taken on the field of battle or in storming a fortress or town. 1 To these may be added a foutth, namely, if the private prv)perty, like cotton during the American Civil War, forms- one of the main reliances of the enemy for procuring war -like resources. 2 204. "In the prst piace," observes Halleck, "we may seize- upon private property by way of penalty for the illegal act of individuals or of the community to which they belong." Thus- the property of one who offends against the laws of war is- seized without hesitancy. And as before stated, if the illegal- act of an individual enemy cannot with certainty be brought, home to him and punishment meted out to the guilty party, the community in which he lives and which affords him an> asylum must pay the penalty. This was a very common; practice during the American Civil War and the Franco- German War of 1870. It is nothing more than an application- under the laws of war of the common-law principle which held; the hundred responsible for robberies or felonies unless the- criminal was apprehended and lodged in the hands of the civil; officers. 3 So if the offence attach itself to any particular community or town, all the citizens thereof are liable to pun- ishment; their property may be seized, or, by way of penalty^ a retaliatory contribution may be levied upon them. If the guilty can be seemed it is more just to punish them alone.. But the rule is inflexible that the community may be held re- sponsible for the acts of its individual members. This makes- I. Halleck, Chap. 19, Sec. 13; Manning, p. 188. 2. Mrs. Alexander's- cotton, 2 Wallace, 420; Lamar v. Browne, 92 U. S., 194; Boyd's Whea- ton, p. 411. 3. Blackstone's Comm., III., p. 161; IV., pp. 246, 293, RIGHTS EEGAfeDING PKIVATB PROPERTY. 203; it the interest of all to discover the offenders and deliver themi up to justice. 205. It is admitted that the principles of the Hague Con- ference hold differently. "No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible." i It remains to be seen how welt the parties to that conference observe the rules they adopted.. Their departiure from them during the China Relief Expedi- tion has been commented upon. During the present Russo- Japanese War, between two of the parties signatory, although it has only just begun, the press of the civilized powers has- been filled with complaints of the disregard shown by one of the combatants to the principles of that conference. 206. "The right of taking hostages," says Bluntschli (I.,. Sec. 92), "was applied in a new but questionable manner during the late war between Germany and France when in- fluential inhabitants of French towns and villages were forcibly cariied off as security against the interruption of railway com- munication. It is questionable, because it places peaceful' inhabitants in the most serious dangei, even of their lives,, without any blame on their part, and without affording ade- quate security, inasmuch as the fanatics who tear up the rails- or otherwise endanger the trains have little regard for the lives of the notabilities for whom they perhaps only entertain hate. It is only justifiable in the case of necessity on the ground of" reprisal." The ground upon which the seizures are made is that . seciurity is thus obtained that such practices as interrupting, or interfering with railroad traffic will be stopped. The in- terest which prominent citizens have in the community will,, if they be taken into custody, secure either the exertions of the inhabitants to ferret out evil-doers, or increased vigilance- to prevent a repetition of bridge-burning and other similar interferences with the railroads or other means of communi- I Sec. 3, Art. I. 204 MILITAKY GOTEENMBNT A2S[D MARTIAL LAW. cation. It is one of the common practices of war. The in- stances are numerous during the CivU War where commanders notified the people amongst whom they were that they or par- ticular officers would be held responsible for war crimes of this nature. There is another reason for this severe rule. Cowardice and crime often seek to screen themselves in the obscurity of the crowd. Collections of individuals and even communities can often in an indistinguishable mass be brought to do that which the individual members, standing on their own responsibility, would shrink from doing. The trying incidents of war offer many opportunities for the display of this trait of human weakness. The surest way to cmb this is to have it well understood that the cloak of the many affords no immuiiit} for the transgression:^ of the few. 207. In the fall of 1861, as large numbers of Union refugees were driven from districts of the State held by rebels into St. Louis, Missouri, the commanding general, a distinguished soldier, lawyer, and writer on internttional law, directed that these destitute people be maintained at the expense of those in that city who weie known to be hostile to the Union cause. 1 Enfoiced contributions from the enemy are equslly authorized whether required during the progress of the war for the sus- tenance and transportation of the conqueror's army, or after tlie conclusion thereof, as one of the tei ms of peace. 2 208. The Constitution of the United States makes no dis- tinction between real and personal property taken for public use, nor do the decisions of the Supreme Court. The same obligations apply to both. But there is a distinction to be drawn between property used for govermnent purposes and property destroyed for the public safety. If the conditions admitted of the property being acquired by contract and of being used for the benefit of the government, the obligation to remunerate attaches, and it must be regarded as taken under I. Halleck, Chap. 19, Sec. 14; Mitchell v. Clark, no U. S., p. 633. 2 Woolsey, Sec. 136; Twiss, Law of Nations, p. 124. EIGHTS EEQAEDING PEIVATE PROPERTY. 205 an implied contract; but if the taking, using, or occupying was in the nature of destruction for the general welfare, or incident to the inevitable ravages of war, such as the march of troops, the conflict of armies, the destruction of supplies,, and whether brought about by casualty or authority, and. whether on hostile or national territbry, the loss, in absence of positive legislation, must be borne by him upon whom it falls, i 209. The ancient rule of war authorized the enslavement of all enemies and the taking all their property. It is readily seen what a great amelioration of this rule sparing the persons, of non-combatants is, and levying not upon all enemy property, public and private, but only demanding such money or sup- plies as the army of occupation may require. That army must be subsisted somehow, either by regular supplies paid, for by its own government, the pillage of the occupied territory, or by contributions levied on the people. The first course may not always be practicable, either be- cause the troops are too far from their sources of supply, or their government cannot afford the expense, or it be not. deemed good policy. 210. Pillage is generally inexcusable in these days, and the- State which would without urgent necessity authorize or sanc- tion it would receive, as it would deseive, the condemnation of the civilized world. The inevitable consequences of pillage are generally destruction of property, violation of every right of person, no matter how sacred, and the demoralization of the troops engaged in it. The suffering people, incensed at. the useless hardships imposed upon them, are converted into implacable enemies. Straggling parties of the troops are cut. off and massacred often with circumstances of great barbarity,, the result of that ferocious spirit which war so conducted in- variably arouses. Moreover, the plan soon becomes imprac- ticable. The peasantry, maddened by personal indignities,., prefer to destroy property rather than permit it to fall into- I. Opinions Attorney-General, Vol. 21, p. 237; ibid., Vol. 22, p. S'S- 2o6 MILITAEY GOVERNMENT AND -MAETIAL LAW, the hands of a ruthless foe. The army scattered for subsist- ence cannot always concentrate for action. And what avaUs it that the army has subsisted upon the occupied territory if the campaign be lost? Pillage is not only impolitic and unjust, but is attended with so little that is good and so much that is bad that except as a last resort it has fallen into disuse among enlightened nations. It may, indeed, be justified. There may be absolutely no other way to subsist the army. In that case the general simply falls back on that ultimate rule of force which places all enemy property at his disposal. In case also of cavalry raids it may become necessary for the troops to procure their supplies wherever they may be found. But even here it will prove advantageous to proceed as regularly and justly as circum- stances will permit. This was recommended by the Brussels project of an international declaration concerning the laws and customs of war. i And although these recommendations are without binding force they will express the prevailing drift of modern ideas on this subject. Under the terms of the recent Hague Conference it was formally prohibited. 2 211. The remaining method of supplying an army in the enemy's country is by contributions levied upon the inhab- itants, either directly or through the constituted authorities. In this case it may well happen that, instead of levying the contributions, a sum of money may be demanded in lieu thereof; for, if the money be forthcoming, it is generally an easy matter to secure all needful sjpplies, so far as. they exist in the country, from the inhabitants. The enemy's subjects by paying the sums or contributing the supplies, have a right to expect that their property m\\ be secure from pillage and the country preserved from devd.stati in. The American general-in-chief, after occupying the capital of Mexico, estab- lished a system of revenue whereby he gathered into his hands most of the internal dues and taxes which, under ordinary I. Boyd's Wheaton, pp. 476, 481; Appendix III. 2. Sec. ,3, Ait. TCLVII., G O, 52, A. G. O., 1902. EIGHTS EEGAEDING PRIVATE PEOPEETT. 207 circumstances, would be owing to the Mexican Federal Gov- ernment, to be used in procuring supplies for the army of occu- pation. In doing this he gave his adhesion to an enlightened policy. Ordinary revenues were not molested. The civil government of the various Mexican States, as well as city and municipal governments, were eaiouragcd to runain in the discharge of their duties. It w is recognized that whi e per- fonnfng their functions they must have pecuudary support. Herce every precaution w_s taken that moderate and reason- al)le si^ms should be set aside fo: this purpose. In the capital city itself a considerable sum was collected in lieu of pillage, i The magnanimity of this victorious commander in appor- tioning his demands on a conquered people according to their ability to meet therrl, and the even-handed justice with which he enforced his contributions, meiits every applause. This notwithstanding the fact that a sum levied in lieu of pillage may sound like a harsh proceeding. It was merciful. It re- duced suffering as much as possible consistent with efficient military control ; and, by the contentment of the people thereby secured, lessened the duties imposed upon his army and in many ways enhanced the interests of the United States. And it conformed to the teachings of the sages of the law. "A general," says Vattel, "who wishes to enjoy an unsullied reputation, must be moderate in his demand of contributions and proportion them to the abilities of those upon whom they are imposed An excess in this point does not escape the re- proach of cruelty and inhumanity; although there is not so great an appearance of ferocity in it as in ravage and destruc- tion, it displays p greater degree of avarice or greediness." 2 Those upon whom contributions are levied during the pro- gress of war are not the armies of the enemy; if so, there would be an excuse for severity. They are, as a rule, non-com- batants, peaceable citizens, and corporations, all of whom the demanrivS of the times have thrown into ticancial straits. To I. Scott's Autobiography, pp. 558, 560, 582. 2. Book III., Chap. 9, Sec. 165. 308 MILITARY GOVERNMENT AND MARTIAL LAW. pay the contributions requires on their paits great pecuniary sacrifice at a time when they are least able to bear it. To de- mand contributions exressi^'e in amount, or to collect them with unnecessary harshness, is useless oppression. They are ■calculated to give rise to all those evils attending pillage before pointed out, and in fact they constitute pillage imder a milder name. Policy and the dictates of humanity require that in levying contributions as generous forbearance should be shown •as is compaJtible with the unquestioned rights of the conqueror. Anything beyond this is unnecessary and can never be either wise or justifiable. 212. A government which recruits its army by conscription may bring all private peisons within the list of combatants, and by a course of conduct which makes all private virtually public property may render it hostile. When this happens the property may be appropriated by the enemy upon any terms he may dictate. The reason why private property on land generally is exempt from such seizures is because many of the people are non-combatants, enemies only in name, and policy and humanity alike counsel that they be generously treated. But if the community en masse with their property are dedicated to belligerent purposes, the reason of the rule of exemption ceases and the rule ceases with it. 213. The following remarks of Dr. Bluntschli may be as- sumed to set forth the German theory on the interesting subject of contributions ; we say theory, because from the accotmts of German practices in France it has not in that army risen above that. Nevertheless, it is not to be contemptuously cast to one side because it is a theory ; much excellent authority is in the direction for which the learned doctor contended : "The occupying army may demand of the inhabitants such gratuitous contributions as maj"^ appear necessary for the sub- sistence of the troops and for their transportation, as well as that of the material of war, provided such contributions are recognized as a public duty b}' the customs and usages of war. RIGHTS REGARDING PRIVATE PROPERTY. 209 "The proclamation of the Crown Prince of Prussia, of the 20th August, 187a, when he occupied Lorraine, is worthy of notice: 'I bespeak for the sustenance of the army only such surplus of supplies as are not used for the subsistence of the French population.' From other quarters bitter complaints were made of the excessive requisitions of German command- ers, and these were often abated by the commander-in-chief." He then points out that the army of occupation has a right to demand quarters, clothing, wagon and other transportation, remarking that all such demands, according to the circum- stances of the case, give rise to legal claims for indemnification. As to this, the doctor proceeds: "It is difficult in practice to regulate and still more difficult to carry out this duty of in- demnification. The enemy who requires and receives such contributions for military purposes has the strongest induce- ment to remunerate the communities and individuals against whom he does not wage war. But he is often without funds, and yet cannot dispense with such contributions. In many cases receipts are simply given and the payment deferred until the future. Moreover, the military authority may rely upon its undoubted right of imposing upon the enemy, together with the costs of the war, the duty of indemnifying such com- munities and citizens for their contributions. Payments are often refused upon this ground and the creditors referred to their own governments." But no instance is recalled of such sufferers being indem- nified by their own government when it is restored to power. It is invariably put down as an inevitable hardship for which the government is under no obligations to make compensation. It is damnum absque injuria. Mr. Hall (p. 439) goes even further than Dr. Bluntschli in requiring indemnification. Admitting the rights of the in- vader to appropriate products of enemy-occupied country, the transportation, shelter, etc., found there for the use of his army, he .thinks this does not involve the right to appropriate these things without payment therefor. The invader, this —14— 2IO MILITARY GOVHENMENT AND MAETIAL LAW. authority contends, has a right to take only upon pajring either •cash or certificates which his government will honor. But this can hardly be the true doctrine. If the conqueror pays for what he gets it is an act of kindness, based probably upon j<, as an act of retaliation, when the enemy, upon our own territory, has adopted a system of spoliation. Thi.^ was illustrated in the last war between the United States and Great Britain, wherein the British mil- itary and naval forces, in revenge for alleged destruction of property by the United States Army in Upper Canada, laid waste much of the country adjoining the bays of the Atlantic coast and burned the capital and other public buildings at Washington; and though the conduct of the British com- manders WLS stigmatized as mere wantonness because the cir- cumstances upon which it was predicated were not such as to warrant the severe measures taken, still the principle of retal- iation under proper conditions contended for by them, and which, erroneously as was claimed by the American Govern- ment, they relied upon to justify those measiu-es, was never questioned. Second, when necessary to weaken the military power of a formidable foe, as illustrated by the burning of Atlanta, Georgia — an important strategic point, which could not be held — by General Sherman in 1864. And while it is true that a commander who should without necessity thus destroy property becomes the scourge of mankind, still, if that necessity exists, in order that the operations of the war- may be successfully conducted, he has an undoubted right to EIGHTS REGARDING PRIVATE PROPERTY. 215 take such a step.i The rule of law is that destruction is jus- tified only so far as it is indispensable. 219. The destruction of property in this mr.nner cannot take place under military government except to punish a re- bellion against established authority. To resort to such measures would crumble to pieces the foundation upon which such government is based. The temporary allegiance of the people is owing only on condition that they receive, in return, whatever degree of protection to liberty, persons, and property may comport with a proper military control. To destroy that property with the attendant violation of rights of person and liberty of action that would ensue, under any of the special pleas set up as excusing such conduct on the part of a bellig- erent operating against the enemy in the field, would at once dissolve the slender bonds uniting the government with the people. The latter would be justified in rising against con- querors who make use of their power only to despoil those whose territory they have overrun. And herein is discernible an important distinction between the obligations of those who give temporary allegiance to a military and those who owe permanent allegiance to a regu- larly established government. While destruction of property and laying waste territory would release the former from transient obligations to a mere government of force, such meas- ures, if adopted by the permanent government to thwart an invader would not justify subjects in rising in rebellion unless carried to the length of oppression. The reason of this dis- tinction is readily seen. In the former case government is established over the people, perhaps with an implied consent, yet without that consent freely given. It is based on military force and that alone. The correlative duty between such gov- ernment and its temporary subjects, as before remarked, is protection on the part of the former and, so long as that con- tinues, quiet acquiescence on the part of the latter. Withdraw I. Boyd's Wheaton, pp. 4 15, 421; Vattel, Book III., Chap. 9, Sees. 167-78; Manning, p. i86. 2l6 MILITARY GOVERNMENT AND MARTIAL LAW. that protection, and ipso facto all obligations on the part of the governed disappear with it. But permanent and regu- larly established government, theoretically at least, rests upon the consent of the governed. Government in the latter case is the agent of the people for the protection of society and se- curing the happiness of its members. Bvery intendment, so far as the government is concerned, is in favor of the sufficiency of its authority to act. Therefore when, as was the case in Russia, first against Charles XII. and afterwards against Napoleon, extensive tracts are rendered desolate and even the capital burned, it was considered as exemplifying a noble, chaste, and self-sacrificing spirit of patriotism. Such violent measures are to be sparingly applied; only motives of trans- cendent importance can justify resort to them, i A govern- ment which should without necessity imitate the Czar's conduct would be guilty of a crime against its people. But let the necessity arise, the sacrifice be made; the people have no just cause of complaint; no covenant with them has been broken; while mankind for all ages applaud such heroic acts as giving clearest proof of indomitable courage and exalted public virtue. 220. How the conduct of the Russians in 1812, placing their all, both lives and property, at the disposition of the sovereign for defence, giving no heed to the necessary sacrifice, contrasted with that of the French people when their Emperor —he who had raised their country to the highest pitch of martial glory — was pushed back upon their native soil by a world in arms! No Moscows were found in France. 221. Having established by the concurrent authority of judicial decisions, the writings of publicists, the orders of execu- tive departments, and the practice of military commanders that the right to seize upon or destroy enemy private property is a perfect one, modified in its application by the laws of nations as exemplified in the rules of modern warfare, we will now consider the kinds of property to which the rule applies. I. Wheaton, Part IV. Sec. 347. EIGHTS EEGARDING PRIVATE PEOPERTT. 21? That property, whatever its nature, will be found either within or without the territorial limits of the appropriating belligerent. If in the former it is equally as in the latter pre- dicament liable to be seized upon, destroyed, or otherwise dis- posed of. We have seen that the property of enemies found within the United States is liable to confiscation though its forfeiture requires an act of Congress authorizing it. i In this respect corporeal property and incorporeal rights, choses in action, are on the same footing. When the case of Brown v. the United States was before the circuit court in Massachusetts, Judge Story laid down the right to confiscate debts and ene- my property found in the country as perfect under the law of nations. And Chief -Justice Marshall, in delivering the opinion of the Supreme Court in that case on appeal, observed that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and that the right of the sovereign to confiscate debts was precisely the same with the right to confiscate other property found in the country. We are at liberty, therefore, to consider it an established principle that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens and due to the enemy. 2 It is true that the chief-justice remarked that the enforcement of this right as to debts is contrary to universal practice, and upon this Chancellor Kent observes that it may well be considered a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times. The experience of this country, however, since that time has not sustained these views as to the softening of the older rule, This, as we have seen, was exemplified in the confiscation act of July 7, 1862. 3 In affirming the constitutionality of this act the Supreme Court remarked that the Government had the right to seize, confiscate, and dispose of all property of the I. 8 Cranch, p. no. 2. Kent, I., p. 65. 3. Chap. 195, Statutes at Large, 12, p. 589. 21 8 MILITARY GOVEEN'MEISrT AND MARTIAL LAW. enemy subjects of every description, i Previously the Congress of the rebel Confederacy confiscated all property, movable, im- movable, and all rights, credits, and interests held within the Confederacy by or for any alien enemy except public stocks and securities. Concerning this Earl Russell remarked that "what- ever may be the abstract rule of the law of nations on this point in former times, the instances of its application in the manner contemplated by the act of the ConfederEte Congress in modern and more civilized times are rare, and have been so generally condemned that it may be said to have become ob- solete." 2 But it will not be claimed that theories of publicists and interested protestations of statesmen regarding what should be the rule are of as much value in determining the right in this matter as are the legislative acts of the belligerent governments. The whole subject resolves itself into a ques- tion not of right, but of expediency. Granted that the rule generally observed is not to confiscate debts due the enemy from oiur own subjects, still, when a nation is either driven to extremities in the prosecution of a war, or for any resson it may reap an advantage by so doing, it can safely be assumed that it will be done. This country was more severely and thoroughly schooled in the laws of war dm-ing the four years of the Rebellion than had been possible through abstract spec- ulations of scholars, statesmen, and jurists even in that many centuries. 222. During the Crimean War no attempts were made to confiscate private property of the enemy, not maritime, re- maining in the country, or private debts, or to arrest private persons. The course pursued by the nations involved, and the fact that nearly all nations now have treaty stipulations allowing a certain interval of- time for the removal of vessels and other property in case of war, go far towards changing the ancient practice. This circumstance lays the foundation for a change in the law of nations in this regard. This much safely can be said, private property is not now lost to the I. II Wallace, p. 305. 2. Dana's Wheaton, notes 156, 157, 169. EIGHTS EEGAEDING PRIVATE PROPEETY. 219 owner unless its confiscation is specially ordered by the highest political authority of the State. Still it cannot be said that a nation, which for a cause that it may judge sufficient should seize and condemn ?uch property, whatever its nature, had violated established law, although such a course as regards private debts due to enemy subjects would be considered as harsh in the extreme and out of harmony with the spirit of the age. 1 223. The only exception to this rule is that debts due from the State itself to subjects of the enemy are not confiscable. 2 Everywhere in case of war funds credited to the public are ex- empt from confiscation and seizure. Phillimore considers the doctrine of the immunity of public debts as one which may happily be said to have no gainsayers. 3 Manning lays it down that such debts are invariably regardfed as sacred during war, and considers them as entrusted to the public faith and not to be touched without its violation. To the same effect is Woolsey, who observes that "all modern authorities agree, we believe, such debts ought to be safe and inviolable. To confiscate either principal or interest would be a breach of good faith, injure the credit of a nation, and provoke retalia- tion on persons and all private property."* Amidst all the extreme measures resorted to by the respective belligerents during the wars waged between Great Britain and France under Napoleon public debts were never confiscated. "The distinction," says Dana, "seems to be that a loan to a State is in the nature of a permanent investment invited by the State itself, and the application is fairly to be made that the foreign creditor is not to lose it in case of war. The whole turns on this question, What has the foreign creditor a right to assume will be the result in case of war? The policy of a State to have its loans open to the people of all nations as in- vestments secure against the chances of war is so obvious and paramount as not only to settle the practice, but to give coun- I. Dana's Wheaton, note 156. 2. Bluntschli, I., Sec. 149; Manning, p. 173; Cobbett, p. 99; Ferguson, p. 285. 3. Vol. 3, p. 135. 4. Sec. 118. 220 MILITARY GOVEKNMEN^T AND MARTIAL LAW. tenance to the assumption of the creditor that the faith of the State was impUedly pledged to him to that effect." i The Con- federate confiscation acts of 6th August, 1861, expressly ex- cepted from seizure public stocks and securities held by alien enemies. Wildman says : "It will not be easy to find an in- stance where a prince has thought fit to make reprisals upon a debt due from himself to private men ; there is a confidence that this will not be done. A private man lends money to a prince upon the faith of an engagement of honor, because he cannot be compelled like other men in an adverse way in a court of justice. So scrupulously did England, France, and Spain ad- here to this public faith that during war they suffered no in- quiry to be made whether any part of the public debts was due to subjects of the enemy, though it is certain many English had money in French fimds and many French had money in ours." 2 224. Article X. of the treaty of 1794 between the United States and Great Britain provided that neither debts due from the individuals of one to those of the other nation, nor shares nor moneys which they may have in the public funds or in the public or private banks, should in event of war or national dif- ference be sequestered or confiscated. And the reason given was that it was unjust and impolitic that debts and engage- ments contracted and made by individuals having confidence in each other and in their respective governments should ever be destroyed or impaired by national authority on account of national differences and discontents. 225. What has thus far been said in regard to seizing and appropriating particular species of enemy property relates especially to transactions occtu-ring within the territory of the appropriating belligerent. But military government in the sense here used is established over hostile territory alone. Hence the rules of law applicable in the former case are not I. Dana's Wheaton, note 157; see Halleck, Chap. 15, Sec. 17 2. Vol. a, pp. 10, II. KIGHTS EEGARDING PRIVATE PROPERTY. 221 necessarily those governing the appropriation of enemy property in the latter. 226. The generous spirit which now chr-racterizes dealings with enemy property found within the territory of a bellig- erent power pervades not one, but all civilized nations. It is with the sole object in view of making that spirit manifest that the preceding remarks have been made. And while rules touching property so situated do not necessarily regulate practices under military government, yet they do indicate the principles which should guide commanders in dealing with enemy property in territory militarily occupied. 227. We shall now proceed to consider the rights, duties, and obligations of the commander, within a district over which military government has been established, regarding various kinds of property found therein belonging either to subjects of the enemy or the enemy State. Pirst, as to movable property of enemy subjects. This is not considered as transferred to the conqueror by the mere fact of belligerent occupation of the country. To work such a transfer of proprietary rights some positive and unequivocal act of appropriation is essential, i The invading or occupying army will take all movables which are directly or primarily capable of use in war. This is because they are in substance contraband of war. 2 Whatever military necessities may re- quire, as live stock, provisions, and clothing, may also be taken. Whether or not compensation shall be made for movables of that description is a matter of State or belligerent policy solely. 3 The title to personal enemy property on land passes by cap- ture. 4 Whatever of movable property or of rents and profits appertaining to immovable property he actually takes posses- sion of he acquires good title to. 5 Moreover, property of per- sons residing in enemy country is deemed in law hostile because I. Wheaton, Sec. 31; Bluntschli, I., Sec. 143; 9 Wallace, 540. 2. 13 Wall, p. 136. 3. Wheaton, Dana's note, p. 169. 4. Whiting, War Powers, p. 48; Vattel, Book III., Chap. 13, Sec. 196; Halleck, Chap. 19, Sees. 7 and 12; 92 U. S., p. 19s; 9 Wallace, p. 540. 5. Manning, p. 188. 222 MILITAKY GOVEENMENT AND MABTIAL LAW, of its situation, and is subject to seizure without inquiring re- garding the nationality, opinions, or predilections of the owner. 1 If for any reason it should be exempt it is for the owner, if called upon, to establish that fact. 2 The rule some- times laid down, that to become the property of the captor firm possession of movables must be held fortwenty-four hours 3 is not in accord with either thepractice orthe better authorities.* "Rights of possession in private property," says the Supreme Court of the United States, "are not disturbed by the capture of a district or country or of a city or town until the captor signifies by some declaration or act, and generally by actual seizure, his determination to regard a particular description of property as not entitled to the immunity conceded in con- formity with the humane maxims of public law"; and again, ' the right of possession in private property is not changed in general by capttire of the place where it happens to be, ex- cept upon actual seizure in obedience to the orders of the com- manding geiieral." s 228. The question as to just what is necessary to vest per- fect title in the conqueror to movable private property on land becomes of practical importance in case it again comes under dominion of the now vanquished State. By the recognized right of post liminium, things taken by the enemy are restored to their former status of former owners on coming again into the power of the nation to which they belonged. 6 In return for their allegiance the sovereign is bound to protect the persons and property of his subjects and to de- fend them against the enemy. When, therefore, a subject or any part of his property has fallen into the enemy's possession, should any fortunate event bring them again into the sover- I. Whiting, p. 57; Vattel, Book III., Chap. 5, Sec. 75; 2 Black, p. 674; 97 U. S., p. 60; The Vrow Anna, 5, C. Rob., p. 17; 2 Wildman, Int. Law, I., p. 9. 2. Vattel, Book III., Chap. 5, Sec. 75 ; 2 Wallace, p. 275. 3. Kent, Vol. i, p. no. 4. See authorities, note 4, p. 221, ante; also Young V. U. S., 97 U. S., p. 60. 5. 9 Wallace, pp. 540-41. 6. Vattel, Book III., Chap. 14, Sec. 204; Kent, 1, p. 108. RIGHTS REGARDING PRIVATE PROPERTY. 2 2.? eign's power, it is undoubtedly his duty to restore them to their former condition, to establish the persons in their rights and obligations, to give back the effects to the owners — in a word, to replace ever5d:hing on its footing previous to capture, i But title by capture is as valid as any other ; and when by the proper act title to movable property is divested out of the enemy owner and vested in the conqueror, the property be- comes in law that of the conqueror. If he then alienate it the alienee, except he be a subject of the deposed sovereignty, has a perfect title against the world, and the right of post liminium could not apply. 2 The exception just mentioned is based on public policy; no natioij recognizes the right of its subjects pecuniarily to assist the enemy by becoming purchasers of property appropriated under such circumstances — an act at variance with the plainest obligations of good citizenship. 3 If, however, the conqueror's title had not become complete, neither could that of his alienee be so ; and should the property again pass under the dominion of the former sovereign, the alienee could be ousted from possession under the broad and sacred right of post liminium. To protect purchasers it thus becomes practically important to determine what acts vest perfect title to movable private property in the conqueror. And it is be- lieved that the true test is that laid down by the Supreme Court before mentioned, namely — "actual seizure in obedience to the orders of the commanding general." 4 "The actual seizure" of this rule does not mean possession merely, but possession with the ability to retain and utilize it as one's property. Upon this point it has been well observed that, supposing a foreigner come into our country, buys a por- tion of the booty which a party of enemies have just taken from us, our men who are in pursuit of this party may very justly seize on the booty which that foreigner was over-precip- itate in bu)'ing. Apposite to this, Grotius quotes from De Thou the instance of the town of Lierre in Brabant, which hav- I. Vattel, Book III., Chap. 14, Sec. 205. 2. Manning, p. 190. 3. Halleck, Chap, ig, Sec. 5. 4. U. S. v. Padelford, 9 Wallace, p. 541. 224 MILITARY GOVERNMENT AND MARTIAL LAW. ing been captured and recaptured on the same day, the booty taken from the inhabitants was restored to them. The natural reason of the conduct adopted towards the inhabitants of Lierre was that the enemy being taken, as it were, in the fact and be- fore they had carried ofE the booty, it was not looked upon as having absolutely become their property or been lost to the inhabitants, i "Movables," says Kent, "are not entitled by the strict rules* of the laws of nations to find the full benefit of postliminy unless retaken from the emeny promptly after capture, for then the original owner neither finds a difiiculty in recognizing his effects, nor is presumed to have rehnquished them. Real prop- erty is easily identified, and, therefore, more completely within the rights of postliminy; and the reason for the stricter limita- tion of it in respect to personal property arises from its transi- tory nature and the diflSculty of identifying, it and the con- sequent presumption that the original owner had abandoned the hope of recovery." 2 From all of which we infer that seizure I. Vattel, Book III. Chap. 13, Sec. 196. 2. I., p. 108; Vattel, Book m., Chap. 14, Sec. 209. NoTB. — In considering the effects of post liminium in connection with mihtary government, Mr. Hall reduces them to three; (:) Certain lim- itations to the operation of the right of post liminium in the case of oc- cupied territory. (2) The effect of acts done by an invader in excess of his rights. (3) The effect of the expulsion of an invader by a power not in alliance with the o.ccupied but vanquished State. As to the first, post liminium does not, except in a very few cases, wipe out the effects of acts done by the invader which it is within his com- petence to do. Judicial acts under his control, when not of a political complexion; administrative acts which take effect during continuance of his control; various acts done by private persons under sanction of muni- cipal law, remain good. Otherwise invasion would paralyze the social fabric. As between State and individuals the evil would scarcely be less. For instance, it would be hard that payment of taxes under duress should be ignored, and it would be contrary to general interests that sentences passed upon criminals should be annulled because military government had ceased. Political acts by the invader fall, of course, with his con- trol. So do all put(itive sentences for acts which were simply prejudicial KIGIITS REGAliDING PRIVATE PROPERTY. 225 under competent military authority with a view to appropria- tion, together with the power to hold, and the actual retaining in possession until proprietary rights can faiily be exercised over it, passes legal title to movable enemy's property taken in territory subject to military government. 229. Thus far corporeal property has alone been treated of, but the same rules of appropriation govern as to incorporeal rights appertaining to things — they follow the fortune of the things themselves, i This rule, analogous to that which gov- erns in case of incorporeal rights appurtenant and accessory to real property, is founded on reason and universal custom. Whatever of rents or profits adhere to or issue out of movable property on land must, equally with like incidents attaching to real property, be subject, under military government, to appropriation. In the ordinary course of business the former as compared with the latter will be insignificant in value; still, on that account, the right to seizure is none the less clear. On principle there exists no reason to distinguish between these two sources of revenue. Either or both may be levied upon by the conqueror to replenish his treasury, cut off the possibility of their being transmitted to the enemy, and so increase the coercive power brought to bear upon him. to the occupier's military interests without being crimes or oflFences against municipal law. Upon the second point it is true that if the invader exceeds his legal authority when, for instance, he alienates public domain, the reinstated government may ignore his acts. The principle of post Uminium ' here applies. Upon the third point, which is of less practical importance than the others, it may be asserted, that so soon as mere military government has ceased because the invader is driven out by a third power not an ally of the deposed State, the principle of post Uminium properly would restore the latter to its original jurisdiction. But if military has b}i any means become permanent government, then it >vould be for the third power to decide for itself whether it would admit the original State to resume its sway. — [International Law, pp. 450-53.] I. Wheaton, Dana's note, 169, pp. 433, 439- 15— 226 MILITARY GOVERNMENT AND MARTIAL LAW. Of these incorporeal rights it may be reinarked that, they cannot in themselves be objects of possession; they are not external things on which the conqueror can lay his hand. Their existence is merely an idea and abstract contemplation, though their effects may be fiequently objects of one's bodily senses. They are rights which exist in mental apprehension as connected with a given subject to which they are attached and with a material object upon which they can be exercised. It is, therefore, only by the actual possession of the corporeal thing to which the incorporeal right attaches that the con- queror may be considered as possessed of the latter, but if he have the former, the latter is considered as going with it. 230. With regard to private debts between parties the case is different.! "It is by no means to be admitted," said the United States Supreme Cotirt, "that a conquering power may compel private debtors to pay their debts to itself, and that such payments extinguish the claims of the original creditor. It does indeed appear to be a principle of international law that a conquering State, after the conquest has subsided into permanent government, may exact payment from local debt- ors of the conquered power, and that payments to the con- queror discharge the debt, so that when the former government returns the debtor is not compelled to pay again. This is the rule stated in Phillimore on International Law. 2 But the principle has no applicability to debts not due to the con- quered State. Neither Phillimore nor Bynkershoek, whom he cites, asserts that the conquering State succeeds to the rights of a private creditor. 3 231. Incorporeal rights of a purely personal character ad- hering to the person do not pass to the conqueror by the mere fact of his occupying a region in which the owner of the rights resides, or*even by the possession of his person. Nothing short I. 96 U. S., p. 176; Manning, p. 188. 2. Vol. 3, Part XII., Chap. 4. 3. Planters' Bank v. Union Bank, 16 Wall, pp. 496-97; Halleck, Chap. 15, Sec. 18; also Chap. 32, .Sec. 26; Cobbett, p. 155, mentions that debts due the deposed State are differently regarded. EIGHTS llEGARDING PRIVATE PROPERTY. 227 of the reduction of the owner to slavery — no longer a per- missible proceeding — confiscates such rights. In this class come debts and other personal obligations, i 232. I/Cgal proceedings in courts established by or permitted to perform their f\;nctions under military government cannot impair the rights of citizens of the occupied territory who are compulsorily yet only temporarily absent within the lines of the enemy and so out of reach of process of those courts. This principle, affirmed in Dean v. Nelson, 2 has been reaffirmed in numerous decisions of the United States Supreme Court. In the case mentioned, Dean, a resident of Cincinnati, Ohio, was, at the breaking out of the Civil War, owner of a large amount of capital stock in the Memphis, Tennessee, Gas Light Com- . pany. Before commercial intercourse was interdicted between loyal States, including Ohio, and those in insurrection, in- cluding Tennessee, he sold this stock to Nelson, a resident of Memphis. A note, duly executed by the latter, was given to Dean, and a mortgage upon the guarantee's interest as a stockholder was given to secure payment. The Civil War' rapidly intervened; the conditions of the note could not be complied with. Memphis was in rebel enemy territory; Cin- cinnati in a loyal State. While war was flagrant, and Memphis remained under rebel control, Nelson transferred some of this stock to his wife and other shares to one May. On June 6, 1862, one year after the sale by Dean, Memphis was captured by the Union forces and military government estabhshed there and in the immediate vicinity. Nelson and his wife remained in the city after its capture, so long as permitted by the Union commander, but May resided permanently within the Con- federate lines. In retaliation for some guerilla outrages perpetrated in the vicinity the Nelsons were expelled from the Federal lines and not allowed to return, although they requested permission. In September, 1863, Dean filed a pe- tition before the civil court or commission instituted by the Federal commander at Memphis in April preceding for hearing I. Dana's Wheaton, note 169, p. I439. 2. 10 Wallace, 158. 228 MILITARY GOVERNMENT AND MARTIAL LAW. and determining complaints and suits of loyal citizens, setting forth all the facts and praying for the foreclosure of the mort- gages, because of the alleged failure on the part of the mort- gagor to fulfill the conditions subsequent of the note. Nelson and wife and May were made defendants ; a return "not found" was entered, and publication of notice to them to appear was made in accordance with the laws of Tennessee existing prior to the Rebellion. No appearance being made, decree went for the plaintiff. After the Rebellion was suppressed and when hostilities had ceased, the civil courts of the land resuming their accustomed sway, the defendants filed a bill in the Circuit Court of the United States for West Tennessee praying that the stock might be decreed as belonging to them, and for general relief. The Circuit Court decreed accordingly, in substance, yet taking care to cover the equities affecting all parties; but in effect it reversed the decision of the civil commission. Dean appealing to the Supreme Court, the decree of the Circuit Court, modified ■ in important particulars, was affirmed. The proceedings before the civil commission, it was remarked, were fatally defective; the defendants in those proceedings were within the rebel lines, which it was unlawful for them to cross ; two of them had by military authority been expelled the Union lines and had not returned, the other being permanently without those lines. Under such circumstances notice to them through a news- paper was a mere idle form; they could not lawfully see or obey it; therefore, as to them the court concluded that the proceedings were wholly void and inoperative. The principle was thus established that even in time of war one could not first be rendered powerless by superior enemy force to defend himself and while in that situation be deprived . by that enemy of his property under the forms of judicial proceedings. The case of Lasere v. Rochereau was substantially to the same effect as the preceding. lyasere, a resident of New Or- leans, was one year, after the capture of that city by the Fed- SIGHTS EEGAEDIXQ PRIVATE PEOPEETT. 229 eral forces, expelled the Union lines, and there remained until after the close of the war. During his absence certain premises of his were sold iV New Orleans on process instituted to fore- close mortgages, immediately after the cessation of hostilities I/asere sought to vacate these proceedings. His efforts resulted in an adverse judgrnent in the Supreme Court of Louisiana. Being taken by writ of error to the United States Supreme Court, the judgment was there reversed. "It is contrary to the plainest principles of reason and justice," said the court, "that anyone should be condemned as to person or property without an opportunity to be heard. Scant time was given the plaintiff in error to prepare for his removal within the Confed- erate lines. During his absence he had no legal right to appoint an agent or to transact any other business in New Orleans. Lasere doubtless knew nothing of the proceedings against him, and if he had such knowledge, he was powerless to do anjrthing to protect his rights." i Closely allied with the cases of Nelson and Lasere was that of McVeigh v. United States, wherein the Supreme Court, after stating the recognized rule of law, that an alien enemy, though he has not the right to sue, may be sued in the courts of the adverse belligerent, maintained that when so sued he had a right to appear and defend. If assailed there, he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. The court could not hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice. 2 The case arose in this wise: Under the provisions of the confiscation act of July 17, 1862, a libel of information was filed in the United States District Court for Virginia for the forfeiture of certain real and personal property situated in that State belonging to McVeigh, who it was alleged was a rebel and a member of the Confed- erate Army. At the hearing McVeigh appeared bv counsel. 1. 17 Wallace, p. 437. 2. 11 Wallace, p. 267. 230 MILITARY OOVEUNMUNT AND MARTIAL LAW. made a claim to the property, and filed an answer showing that at the time he was a resident of the city of Richmond within the Confederate lines. On motion of the attorney for the United States, the claim, answer, and appearance were stricken from the files, and for the reason that, being in the position of an alien enemy, he could have no locus standi in that forum. Decree going in favor of the United States, it was affirmed by the Circuit Court, but reversed by the Supreme Court on the ground that McVeigh had a right to defend himself wherever judicially attacked, and, therefore, that the striking from the files was error. The courts in which proceedings were instituted and carried on in this case formed, it is true, the regular judicial system of the United States. But inasmuch as the establishment of tribunals for trial or civil cases in territory subject to military government by military authority has been declared to be legal, it is believed that the same rule of justice would there apply, and that an alien enemy proceeded against in his property before such military courts would be granted the privilege of appearing and defending himself. Not only would fair dealing demand this, but we have seen that in the cases of Nelson and Lasere the proceedings were declared void because the parties defendant were prevented by the same paramount authority which organized and protected the courts from making any defence. ' 233. When the city of Manila was captured, August 13^ 1 898, by the American troops, members of the family of Doroteo Cortes made their appearance there and sought to resume pos- session of their property that had been arbitrarily taken from them by the Spanish authorities because of alleged disloydty. The military governor joined in the view that the Cortes were not entitled to restitution under the circumstances, and with- held it. The Attorney-General, however, took a different view, holding that the "military authority of the United States was under no obligation to sustain or support arbitrary pro- ceedings for confiscation of property of Spanish subjects on the ground of disloyalty, and when proceedings taken for that RIGHTS KEGAEDING PRIVATE PROPERTY. 23 1 purpose have resulted, either by abandonment or otherwise, in the original owners coming again into possession of theii property."! 234. As to immovable piivate property in territory subject to military governnient the same ruleapplicw*; as to movable prop- erty. The mere fact of military occupation doe^ not affect it. If the conqueror proposes to appropriate either the property itoelf, or the rents, profits, or other incorporeal interests issuing out of or attached thereto, it remains for him to exercise this hif undoubted right by some special act. 2 It has been asserted that the right of appropriation should extend no further than to movable property, chattels, which can be carried away. This on the ground that as war is a temporary relation of nations, the conduct of the parties thereto should be regulated accordingly; and as real property must remain after the ter- mination of the war, and may revert to its former owners after peace, it ought not to be alienated by the conqueror so long as the war continues and until the conquest is completes The conclusiveness of this argument is not conceded. The necessity of self-preservation and the right to punish an enemy, to de- prive him of the means of injuring us by converting those means to our own use against him, lie at the foundation of the rule which sanctions the appropriation of enemy property at all, and it is difficult to understand why that right should be limited to any particular kinds. The true test on principle must be this : First, is this hostile property? Second, will its appropriation strengthen us and weaken the enemy? As to the first, its mere location in territory subject to military government stamps on it the enemy character ;4 and as to the second, the fact that pos- session by the vanquished party, if not of the property itself, at least of rents and profits arising therefrom, may increase his pecuniary resources and so enable him to maintain the war, I. Opinions Att'y-General, Vol. 22, p. 351. 2. Dana's Wheaton, p. 438; Halleck, Chap. 19, Sees. 2, 12, also Chap. 32, Sec. 12. 3. Manning, p. 185. 4. Whiting, p. 57; Prize Cases, 2 Black, p. 674; Vattel, Book III., Chap. 5, Sec. 75; 9 Cranch, 197. 232 MILITAEY GOVEENMENT AND MAKTIAL LAW. justifies his opponent in appropriating both property and profits. 1 235. If the territory be not completely conquered, its people subjugated, the laws of war regard its occupation, although de facto accomplished, yet as temporary only vmtil its fate is de- termined by the treaty of peace. 2 Having possessed himself of the provinces, towns, lands, and buildings in the district from which by force of arms he has excluded the enemy, he has a perfect right to retain and use them in such manner as will best secure his interests. Incorporeal rights which adhere to or issue out of immovable private property become, when reduced into possession, personal property, and are subject to the rules aheady discussed regarding its disposition. 236. The mere possession of the documents by which the existence of those incorporeal rights are usually evidenced, without the manual possession of the immovable property to which they appertain, would not of itself give the belligerent authority in law to gather into his own hands the moneys which are the usual and natural fruits of such rights. 3 His leceipt to the obligor under such circumstances would not releasee the latter from his obligation. In spite of such pajrment, the orig- inal obligee after the enemy had retired could proceed to re- cover whatever was his due. The reason for this is, that so far as private property is concerned the rights of the conqueror extend during military government no further than those things that he has physically reduced into his possession. 237. That the authorized agents of military government have a right to seize upon immovable equally with movable private property found in the territory occupied is indisputable. But it does not follow that the title to each species is the same. On the contrary, it is essentially different. 4 It has been pointed out that from considerations of public policy the vanquished power would not recognize the right of its subjects, now owing a temporary allegiance to the military government, to purchase I. Harrison v. Myer, 92 U. S., 11 1; Twiss, Law of Nations, p. 126. 3. I Peters, p. 542. 3. Manning, pp. 188-89. 4- Manning, p. 185. EIGHTS REQAEDINQ PRIVATE PROPERTY. 233 from agents of the latter captured movable property of fellow- subjects; but, with this exception, the purchaser of movable captured property on land acquires a perfect title so soon as the property is in the firm possession of the captor, i On the other hand, the purchaser of immovable private property takes it at the risk of being evicted by the original owner when the per- manent government has retm-ned to power. This upon the principle of post liminium. 238. As under military government the conqueror rules by virtue of the sword alone, his title extends no further and lasts no longer than his physical force excludes the enemy. While he thus rules he can do with property found in the territory as either inclination or policy dictates. That which he can seize, convert to his own use on the spot, sell to others, or carry away, he can make his own absolutely. But the rule of superior force marks the limitation of his right. When he ceases to exercise th ,t force and retires from the country all rights he had acquired over immovable property at once cease. 2 The ancient owner, if it has been disposed of, now may return to claim and re-possess what of real property belongs to him. If, however, the conquest becomes permanent, the title which the conqueror has conveyed to the purchaser becomes indefeasible. It was before a good title against all ex- cept the original owner under the right of post liminium, which ■ complete conquest has extinguished. The conqueror is estopped . from assailing the title of his purchaser. He sold the rights which he acquired by conquest ; neither a formal treaty of peace ceding the territory, nor long acquiescence of the people which sometimes is held to have the same effect as formal cession, can tidd to these rights ; at most it can only confirm that which the conqueror aheady possessed. This being so, the conqueror , having disposed of all his rights under conquest and acquired none since, he can not dispute the title of his alienee to im- movable property; the original owner is not in a position to I. Kirk II. Lynd, io6 U, S., 317; Young v U. S., 97 U. S., p. 60. 2. See the Astrea, i Wheaton, 125. 234 MILITAKY GOVERNMENT AND MARTIAL LAW. question the acts of the permanent government, and the re- sult is the complete extinguishment of the ancient title. 239. In most civilized countries immovable private prop- erty is much more valuable than movable. Its sale would return larger sums into the coffers of the conqueror, adding greatly more to his warlike resources. His object in alien- ating property is to add to those resources and diminish those of his antagonist. As subjects of the displaced government can not, consistently with allegiance to their permanent sov- ereign, become purchasers of movable private property, so much the greater are their obligations to refrain from pur- chasing the more valuable immovable property, the direct result of which would be that they would furnish the means to enable the enemy to prosecute the war. This they may not do. The promptings of patriotism should deter them, though interest tempts them from the path of duty. But of this they may be certain : They not only risk the loss of their purchase money on the restoration of the original sovereign to his do- minions, but they expose themselves to punishment for vol- untarily assisting the enemy. If, however, they choose to stifle sentiments which should ever animate loyal breasts, and brave the just resentment of the government to which they owe paramount allegiance, they run no ftu-ther risks ; and if temporary conquest settles into established government, all the rights they have acquired will be confirmed. Subjects of the conqueror may become pm-chasers with no other risk than that of being ousted by the original owner on the restoration or recapture of the immovable property. The same may be said of purchase by the subjects of a neutral State. But the latter might be deemed in some cases a hostile act. The effect of it is to render pecuniary assistance to one party to the war to the prejudice of the other. It is liable, therefore, to be re- garded as not within the limits of legitimate neutral conduct, and so attach to the purchaser the character of an enemy to the power adversely affected. 1 I. Halleck, Chap. 19, Sec. 5. RIGHTS REGAEDING PRIVATE PROPERTY. 235 240. The Roman law, often asserted with unrelenting^ severity, was to take all property, both personal and real, from the vanquished, i Nor is this matter of surprise. Wars were carried on between popular republics and communities. States possessed very little, and the quarrel was the common cause of all citizens. Such, too, was the fate of the Roman provinces subdued by the northern barbarians on the decline and fall' of the western empire. Most of the lands belonging to the vanqtxished provinces were confiscated and partitioned out. among the conquerors. William of Normandy pursued the same policy upon the conquest of England. Blackstone, indeed, denies this, and asserts that di\'iding up the lands of the subjugated English resulted not from the conquest of the island, but from the forfeitures following the numerous rebellions of the English' nobility. 2 But surely few of those revolutions, which both in history and in common language have been denominated conquests, appear equally violent or were attended with so- sudden an alteration both of power and property. The Nor- mans and other foreigners who followed the standard of Wil- liam, having totally subdued the natives, pushed against them the right of conquest to the utmost extremity. The Britons were universally reduced to such a state of meanness and poverty that the English name became a term of reproach. Since that period, however, among the civilized nations of Christendom, conquest, even when confirmed by treaty of peace,, has been followed by no general or partial transfer of landed property. 3 It may be laid down as a principle that so far as private immovable property is concerned, the modern usage of nations which has become law would be violated, and that sense of justice and right which is acknowledged and felt by the whole civilized world would be outraged, if it were con- fiscated and private rights annulled. 4 The inhabitants of the territory militarily occupied change temporarily their alle- I. Wheaton, Sees. 346, 347. 2. Commentaries, 2, r.. 48. 3. Whej- ton, Part IV., Sec. 346. 4. 7 Peters, pp. 86, 87. 236 MILITARY GOVERNMENT AND MARTIAL LAW. giance. Their relation to their former sovereign is for the time being dissolved, but their relations to each other and their rights of property-remain, as a rule, undisturbed. 1 241. As the establishment of military government does not, except in pursuance of special orders to that effect, impair rights to private property, it follows that the power of the people to alienate such property exists the same as before occupation. It is a right which inheres to ownership. Unless the latter be qualified by the victor, it remains in full vigor during the military possession. In this respect a municipality or corporation has the same rights as a natiu-al person, and transfers which they may make under such circumstances are prima facie as valid as if made in time of peace. Nor is the private property of a sovereign in this regard in a different situation from, that of a private subject. If alienation be for- bidden by the conqueror, it will be an exception to the general rule, and he who asserts it must clearly establish the fact. 242. The acts of a de facto revolutionary government af- fecting property found within territory controlled by it will depend for their validity upon the result of the contest. If successful, it will in reason confirm all acts regarding property, either private or public, adopted to strengthen it during its struggle for existence. 2 This was the course pursued by the States and the government of the Confederation during and subsequent to the War of the American Revolution. 3 On the other hand, should the rebellion be suppressed, the legit- imate' government will treat these and all other meastu-es emanating from the defunct government as policy shall de- termine. There has never been a wider field for the exercise of this discretionary power than that offered the United States after the Civil War. Numerous causes covering in principle all varieties of property transactions undertaken by authority of the so-called Coufederate Government were passed upon I. Fifth Robinsons Reports, p. to6. 2. Chase's Decisions, p. 136. 3. 9 Wheaton, pp. 267, 284: 4 Cr., p. 415; 6 Cr., p. 286; 3 Dall, i; i Wheaton, p. 300; 4 Wheaton, p. 4.53; 11 Wallace, p. 312. RIGHTS EEGAHDING PEFVATB PROPERTY. 237 by the Supreme Court of the United States, and the broad ground maintained by it that all acts done pursuant to that authority and in aid of the Rebellion were illegal and of no validity, nor could the power of the United States courts be successfully invoked to confirm property interests originating in such authority. It was not meant by this that every business transaction which took place within the Confederacy would be treated as a nullity if brought finally before those courts. In some in- stances they were considered as if valid and upheld; nor was it an easy matter to lay down a strict rule by which would be determined what would or would not thus be sustained. Gen- erally acts necessary to peace and good order among citizens, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, pro- viding remedies for injuries to person and estate, and similar acts, were sanctioned ; while all those in furtherance or sup- port of rebellion or intended to defeat the just rights of citi- zens of the legitimate government were pronounced illegal and' void. 1 In this view it was held that those who during the war aided and abetted in the prosecution of a citizen within the lines of the Confederacy, before a district court organized: by that government, for giving assistance to the Union forces, were liable therefor, after the return of peace, to suit before a United States court. The act of the Confederate Congress- creating the tribunal was declared to be void, the cotnt a nul- lity and without rightful jurisdiction. The forms of law with which it clothed its proceedings gave no protection to those who, assuming to be its officers, were the instruments by which- it acted. 2 So when within the territory of the Rebellion one sold supplies knowing that they were to be used by the Con- federate Government it was held that action would not lie in' the national courts after the war to recover the purchase price I. 7 Wallace, p. 733. 2. 9 Wall, p. 201. 238 MILITARY OOVEUNMKNTT AND MARTIAL LAW. The gailty knowledge of the seller vitiated the transaction.! In another case a loj^al resident of a loyal State, acting under a pressure of overwhelming necessity, left certain personal property within the insturrectionary district, where, pursuant to the confiscation acts of the rebel government, it was sold and the proceeds turned into the Confederate treasiu-y. In an action against the purchaser, brought in the national courts after the suppression of the Rebellion, it was held that the sale •was void. 2 243. Amidst the important and far-reaching decisions of the Supreme Court of the United States relating to the validity of acts under de facto governments instituted during the Civil War it was occasionally necessary to make nice distinctions, but the task was performed in a manner which must ever re- dound to the ability, patriotism, and profound legal learning of that tribunal, and thereby were established principles which will guide future generations in their efforts to cope with in- surrection and in the rehabilitation of the State. One of the most interesting and in its effects magnanimous decisions was delivered in the case of Thorington v. Smith, heretofore alluded to. 3 It appeared that Thorington, in No- vember, 1864, while Alabama was controlled by the insurgents, sold certain lands there to the defendant for $45,000. At the time there was not in circulation in that State either gold or silver or United States currency. The only money in use was treasury notes of the so-called Confederate Government, which in form and appearance resembled bank bills. In these $35,000 of the purchase money was paid. A note was given for the balance, payable by its terms in dollars, by which term these Confederate notes were designated. When the Rebellion collapsed these notes became valueless. Thorington then filed a bill to enforce a vendor's lien upon the land sold, claiming the balance of the stipulated piurchase money in lawful money of the United States. The court below held that the contract I. 12 Wall, p. 347. 2. 12 Wallace, p. 457; iii U. S., p. 51. 3. 8 Wallace, i. EIGHTS REGARDING PRIVATE PROPERTY. 239 was illegal because payment wcs to be made in Confederate notes. But this judgment was reversed by the Supreme Court of the United States, which held that such contracts should be enforced to the extent of their just obligation. At first blush it might seem that this was going a long way towards encouraging rebellion. The currency, the nature of which was here involved, was issued on the authority of an in- surrectionary government. For the court of last resort of the legitimate government, therefore, to uphold contracts payable in this currency might appear to be giving aid and comfort tO' the enemy. In examining this question the court remarked that the so-called Confederate Government was at the time in Alabama absolutely supreme in authority; that to the ex- tent of its actual supremacy, however gained, in all matters of government within its military lines its power could not be questioned; that though this supremacy did not justify acts of hostility to the United States, it made obedience to its au- thority in civil and local matters not only a necessity, but a duty; that the notes in question constituted almost exclusively the currency of the insurgent States ; that while the war lasted they were used as money in nearly all the business transactions of many millions of people, and, therefore, they must be re- garded as a currency imposed on the community by irresistible force ; that contracts stipulating for payments in this currency could not be regarded for that reason only as made in aid of domestic insurrection; they had no necessary relation to the hostile government ; they relate to the ordinary course of civil society, and though they may indirectly and remotely promote the ends of the unlawful government, are without blame except when proved to have been entered into with actual intent to further insurrection. In this view it was held that the Con- federate currency was just as legal as that imposed by the British on the people of Castine when that place was held by the enemy in 1814, or that imposed on the population of Tam- pico when held by the United States forces in 1846. It is true that the domination in the latter cases originated iii lawful 240 MILITAET GOVERNMENT AND MAHTIAL LAW. acts of regular warfare ; in the former in acts of insurrection ; but in all and equally it was the rule of irresistible force. It is plain that this decision was based on expediency. It was unsupported by and in some degree at variance with the general doctrine of the turpitude of consideration as affecting the validity of contracts, i But it was deemed necessary to es- tablish the principle involved to prevent the grossest injustice in reference to transactions of the people throughout the Con- federacy for several years in duration. The principle, however, embraced only transactions between man and man m the or- dinary affairs of society, and gave no protection to any which went directly to the support of the insurgent government. 2 Therefore, when one purchased of Confederate agents certain bales of cotton, in territory controlled by the insurgents, and the purchase money went to sustain the Rebellion, the buyer was not permitted to recover the value of the cotton from the United States under the captured and abandoned property act, it having been secured by the forces of the United States before he disposed of it. 3 "That any person owing allegiance to an organized government," said the court, "can make a contract by which, for the sake of gain, he contributes most substan- tially and knowingly to the vital necessities of a treasonable conspiracy against its existence, and then in a court of that government base supcessfully his rights on such a transaction, is opposed to all that we have learned of the invalidity of immoral contracts." It would seem that the principles here involved cover the case of property belonging to subjects loyal to the regular government, yet who continue to live under circumstances of greater or less duress in territory dominated for the time being by the revolutionists. The question is somewhat complicated, but the underlying principle would seem to be sufficiently clear from embarrassment. I. Story, Conflict of I/aws, Sec. 253. 2. 97 U. S., p. 454; i2 Wallace, p. 34.7; 20 Wallace, p. 459; also p. 467; 15 Wall, p. 448; 19 Wall, p. 5S6; 91 U: S., p. 3. 3. 20 Wallace, p. 459; 17 Wallace, p. 570. EIGHTS REGARDING PRIVATE PROPEETT. 24 1 244. It has been decided, on the one hand, that under the laws of war all such residents are considered enemies, their property hostile without regard to the individual opinions of the persons affected ;i and on the other hand, as we have seen, that property of loyd citizens of loyal States, the property being situated within rebel districts, could not be purchased under the Confederate confiscation acts of the rebel govern- ment and the buyer acquire valid title ; yet if it be considered enemy property solely because of its location in the insiur- rectionary territory, why should not title pass? If for all purposes it be truly enemy property, why cannot the enemy legally dispose of it? The conclusion drawn from the de- cisions is that it is not regarded as enemy property for all pur- poses. The military forces of the regular government might properly so regard it, but in transactions affecting such property and emanating in -authority assumed by the rebel government, it was permitted to go still further and inquire as to the loyalty of the owner of the property affected. 2 If, however, loyaltj' to the regular government be the cri- terion by which is to Be determined the voidability of trans- actions of the rebel government regarding property situated within its dominion, whyshould the loyal citizen whose unhappy lot it is to live there, under circumstances of complaint, per- haps, and subject to the vindictive measures of the enemy, receive less consideration as to rights of property than he whose lot is cast on loyal soil? It is true that the Supreme Court has said that it is the duty of a citizen, in case of civil war, who is a resident in the rebellious district, to leave it as soon as prac- ticable and adhere to the regular established government. 3 Yet when we consider the difficulties surrounding one in his position — ^that to seek the protection of the regular government may be an act proscribed by that under which he lives and which has at its disposal his property, his life, and all those t. 2 Black, p. 674; 92 U. S., p. 194. 2. Knox v. Lee, 12 Wallace, p. 457; Williams v. Bruffy, 96 U. S., pp. 176, 187. 3. The William Bagalay, 5 Wallace, p. 337. ifi— 242 MILITARY GOVERNMENT AND MABTIAL LAW. domestic relations on which society is built, and which it is the policy of all good government to preserve inviolate — it cannot be doubted that so far as this is consistent with suc- cessful war measures great tenderness will ever be shown by the legitimate government toward such unfortunate yet faithful citizens, even though they should not brave the re- sentment of the temporary government by attempting to leave its domain. If their property be seized and disposed of by that government, the purchaser will be charged with notice of the illegality of the sale should the courts of the regular govern- ment subsequently pass upon the transaction. This legal knowledge — in law moral turpitude — will attaint and render ■void the transactions. To him who braving the frowns of rebellion has remained true to his allegiance the re-established government says, "Well done, good and faithful servant." Nor can it be doubted that its utmost power will be put Jorth to save him harmless in his property from the effects of malig- nant attacks of the temporarily dominant, but now vanquished enemy. 245. Some of the most interesting aases that came up for ■decision under the military government of the United States since 1898 grew out of the effect of military occupation, or property rights attaching to things corporeal or incorporeal. The military governor in Porto Rico during the occupation ousted certain civil officials from office. The Supreme Court of the United States saw in Section 716, Revised Statutes, no authority to review the proceedings of military courts on certiorari, remarking that such were not courts either of law or e;quity within the meaning of Article III. of the Constitution. 1 It was held that licenses gfranting rights on the public do- main should be revocable in their nature, to continue no longer than military jurisdiction lasted and thereafter until the civil powers could make suitable disposition. The principle in- ' I. U. S. Reports, Vol. 179, pp. 126-7. EIGHTS REGAEDING PRIVATE PEOPEKTY. 243 volved was that only the political department of the govern- ment permanently could alienate the public domain.' If military interests were sufficiently subserved, measures might be adopted that tended to render the commercial value of vested rights less, through a setting up competition against the latter.^ Public works and improvements might be suspended for reasons of which the military authorities would judge, even if this interfered with vested rights. ^ The binding of Cuba or any of its municipalities to large expenditures and a continuing debt was a policy not favored except upon grounds of great and pressing necessity. * X. 22 Opinions Attorneys-General, p. 548; 23 ibid., pp. 226, 562; 20 Wallace, p. 387 jMagoon, pp.353, 356,450, 497. 2. 22 Opinions Attorneys- General, p. 409; 23 ibid., p. 427. 3. 22 ibid., p. 523. 4. 22 ibid., p. 410 CHAPTER XI. Rights Regarding Public Property. 246. We will consider, secondly, the rules governing the seizure and appropriation of public property. And here it may be said -generally, that whatever of tenderness is shown for private property under military government does not extend to that of the deposed State. The conqueror seizes upon the possessions of the State. 1 247. It is the tendency of States in a.11 systems of govern- ment to treat the transfer of corporeal movable property — what the common law calls chattels — so far as possible, as giving the full title to the possessor. The simple rules of war take the same direction. The belligerent occupant is treated as acquiring a complete title to all corporeal movables of the hostile State which come under his actual control. He may by leaving them behind him, and by their coming back to the possession of the former State, lose his title ; but if he has per- fected it by actual possession and the exercise of his right of appropriation, they are his, and the former State retakes them, if at all, as a recapture for its own benefit by a new title. All incorporeal rights in movables follow the fortunes of the movables. They pass to the conqueror, if they be rights, and if they be servitudes or liens, the conqueror takes the things purged of the servitudes or liens. 2 248. The title to property of a vanquished enemy State may be considered by capttne as immediately divested from the original owner and transferred to the captor. This general principle is modified by the positive law of nations regarding both that which is movable and what is immovable. I. Vnttel, Book III., Chap. 13, Sec. 200; Manning, p. 182; American Instructions, Sec. ii, clause i. 2. Dana's Wheaton, note 169. 244 EIGHTS EEGAEDING PUBLIC PEOPEETT. 245 24.9. First, attention will be confined to movable property, concerning which the rule is the same as regards movable private property. Military occupation, without some special act appropriating it, does not vest title in the conqueior. This is done only by taking measures to reduce the property into his firm possession and there retaining it sufificiently long to exercise fairly over it the rights of ownership. Having passed into hostile possession, if alienated by its new owners, the vanquished State can only require title through some of the regular methods of procuring property, i Its original claim has been completely extinguished. This is not because there is any insuperable difficulty in recovering such prop- erty under the right of post liminium. If the property be fully identified it is as easy to restore what is movable as what is immovable. It was the common practice of the ancients to do this. But the difficulty of recognizing things of this nature and the endless disputes that would arise between ad- verse claimants, now that movable property is almost infinite in variety and quantity, have been deemed motives of sufficient weight for the general establishment of a contrary practice. Again, movables are either warlike stores — supplies for the support of his army or articles which the enemy sells to replenish his treasury. When so appropriated, neither private persons nor the State can rationally expect to recover them. The most that the former under the best circumstances can hope for is compensation, and this for the latter is wholly inadmissible. . When once movable property is taken into hostile possession, the presumption is that it is lost forever to the owner. It is, therefore, with reason excepted from the right of post liminium if it be not retaken from the enemy im- mediately after capture or unless he has made no effort to ap- propriate it; in which case the proprietor, whether private person or the State, finds no difficulty in recognizing nor is presumed to have relinquished title to it. 2 I. Vattel, Book III., Chap. 13, Sec. 196 2. Vattel, Book III., Chap. 14, Sec. 209; Halleck, Chap. 19, Sec. 7; Manual, p. 3106/ je?. 246 MILITARY GOVERNMENT AND MARTIAL LAW. 250. While the effect of complete conquest is that the con- queror succeeds to the public property of the vanquished State of whatever character, whether movable or immovable, cor- poreal or incorporeal, lying in possession or in right of action, the rights which follow military occupation do not extend so far as this; but to the extent that the temporarily dominant power can reduce any species of property into its possession absolutely, the rule is equally applicable. 1 Hence the com- mander may compel private citizens or corporations who re- ceive the benefit of military protection to pay debts actually due to the deposed sovereignty into the coffers of the con- queror, 2 and a receipt for the same would be an acquittance of the debt ; the debtor would not have to pay it again to the ancient creditor when he returns to power. 3 This is a relax- ation from the strict rule of law; for, a money debt being payable in kind, the debtor is not strictly released by any act or casualty that does not exhaust the genus or kind. 4 To ob- tain the benefit of this modification in the debtor's favor it is requisite that the amount be actually due. Moreover, the debtor must be placed under duress by the military authorities established over him and so compelled to pay the debt; there- fore, if he be not resident in the territory occupied, or without compulsion should pay it nevertheless to the conqueror, in neither case would the original obligation be cancelled. And there must be actual payment. Acquittance without payment will not avail. If to avoid forcible levy the debtor compro- mises or avails himself of a general proviso in the. order for col- lection, and the transaction be bona fide on his part under a pressure brought to bear by the dominant authorities, he will be credited with so much of the indebtedness as he thus actually liquidates. It is a defence to a second demand to the extent of the coercion and actual payment. 251. "All rights of military occupation," says Halleck, "arise from actual possession, and not from constructive con- t. Manmng, pp. 182-83. 2. Bluntschli, I., Sec. 149. 3. Woolsey, Sac. 153. 4. 96 U. S., p. 187; Wheaton, Dana's note, p. 169. RIGHTS EEGAEDING PUBLIC PEOPERTT. 247 quests ; they are de facto and not de jure rights. Hence by a conquest of a part of a country the government of.that country or the State is not in the possession of the conqueror, and he therefore can not claim the incorporeal rights which attach to the whole country as a State. But by the military possession of a part he will acquire the same claim to the incorporeal rights which attach to t^at part as he would by the military occupa- tion of the whole acquire to those which attach to the whole. "We must also distinguish with respect to the situations of the debts, or rather the localities of the debtors from whom they are owing, whether in the conquered territory, in that of the conqueror or in that of a neutral. If living in the conquered country or in that of the conqueror, there is no doubt that the conqueror may, by the rights of military occupation, enforce the collection of debts actually due to the displaced govern- ment, for the de facto government has in this respect all the powers of that which preceded it. But if situated in a neutral State, the power of the conqueror, being derived from force alone, does not reach them, and he cannot enforce payment. It rests with the neutral to decide whether he will or will not recognize the demand as a legal one, or, in other words, whether he will regard the government of military occupation as suffi- ciently permanent to be entitled to the rights of the original creditor. He owes the debt, and the only question with him is. Who is entitled to receive it? In deciding this question the particular circumstances will necessarily be decisive of the case, and will probably delay his action until all serious doubts are removed." 1 The debtor pays under such circumstances at his peril. Confessedly he is not subject to coercion, being domiciled in a neutral State. He, therefore, cannot plead overpowering force to justify his conduct. To secure credit for payment from the original creditor, should the State be restored to power, the neutral must show that the constitutional law of the State recognized the payment as va;lid ; in other words, that it was made in good faith to the de facto power authorized by I. Chap. 32, Sec. 27. 248 MILITAET GOTEKNMENT AND MARTIAL LAW. the fundamental law to receive it. And although such pay- ments may be justified, still nothing can divest them of the appearance of an unfriendly if not a hostile act. The burden of proof to show that the payment was bona fide and in accord- ance with law rests upon the neutral debtor. 252. We have seen that the purchase by a neutral of im- movable enemy property confiscated by a military occupant is hable to be treated as a hostile act by the temporarily van- quished State; and this for the reason that it directly fur- nishes the conqueror with the means of prosecuting hostilities. So does the payment of debts due the deposed State furnish the opposite party such means, and reason will seldom dis- tinguish between the cases; both are unfriendly acts on the part of the neutral, and may well be considered hostile by the State whose interests are thereby prejudiced. This being so, should the vanquished State be restored to power, she will, of course, exhaust every resource to compel a repayment of the debt. The prudent course for the neutral debtor of the de- posed government to pursue is to rbide the final results of the struggle, mpking payment to whoever retains the sovereignty. The principle here involved is well illustrated in the case of the electorate of Hesse Cassel, which grew out of Napoleon's wars. 1 After Jena, Napoleon held that little State about a year under military government, and then incorporated it into the kingdom of Westphalia, which was recognized by the treaties of Tilsit and Schonbrunn and the public law of Europe as a sovereignty for seveial years. The Elector was restored to his throne by the treaty of Vienna. While Hesse Cassel formed part of the kingdom of Westphaha, Count Von Hahn, of the duchy of Mecklenburg, among many other State debtors, com- pounded with. the King of Westphalia for the payment of a debt owing to the electorate at the time of its absorption. The Elector carried away with him and retained in his possession the instruments containing the written acknowledgments of the debt. Nevertheless, every formality of legal payment was I Cobbett, p. 153, quoting Phil. Int. Law, Part XII., Chap. 6. BIGHTS EEQAHDING PUBLIC PROPERTY. 249 complied with, and the duchy of Mecklenburg declared the mortgage upon the Count's estate, given to secure the debt, to be cancelled and void. After the Count's death and the Elector's restoration, the latter instituted proceedings as a creditor against the estate. After passing before several tribunals, the claim was finally rejected on'the ground that the conquest of the country had been complete, and that the return of the Elector, after having been ousted from his dominions for eight years, could not be considered a continuation of his former government. In the course of their opinions, the learned jtnists who passed upon the question made a broad distinction between the acts of a transient conqueror under military government and those of one whose rights and titles had been ratified by the public acts of the State and recognized in treaties with foreign powers. If the case in point were con- sidered as coming under the former category, it was held that the Elector could recover that part of the debt which the Count had not actually paid in the compromise he had effected with the King of Westphalia ; but, considering the conquest as per- manent, which view ultimately prevailed, the circumstances of the transaction could not be inquired into by the restored sovereign. Nor was importance attached to the fact that the Elector retained possession of the documents evidencing the debt. 253. The general rule is that when military government disappears, the rights of the original State and its subjects revert. It is possible, however, as in the case just cited, that a gov- ernment based on the military power may be established with some degree of permanency. If, after the lapse of years, the original State is restored, the question comes up. What efficy is to be given to the acts of the temporary government ? The authorities seem agreed upon these points : (i) Changes in the original constitution become inoperative; (2) Ancient laws and administrative institutions are re-establiBhed ; (3) Private rights acquired stand; (2) Dispositions of State property 250 MILITAEY GOVERNMENT AND MARTIAL LAW. made continue binding; (5) The restored State ought not to make retrospective use of its authority. 254. The PhiUppine insurrection against the United States broke out openly on the night of February 4-5, 1899. The treaty of peace with Spain had been concluded December 10, 1898. All the world was notified that by its terms the Phil- ippine Archipelago was transferred to the United States. On January 23, 1899, before the treaty was confirmed, the branch located at Legaspi, Luzon, of Smith, Bell & Co., a British banking firm of Manila, sold a draft in favor of the Fil- ipino treasurer, Mariano Trias. The money to pay for the draft was fturnished by a Filipino general. At the time of the negotiation of the draft the Filipino insurrection was brewing, but had not broken out. Before, however, the paper reached the main house of Smith, Bell & Co. at Manila, whom it was intended should honor it, the war of the Filipino insurrection had become flagrant; Manila was within the lines of the United States military; but all the parties to the paper — Lucban, who furnished the funds, and Trias — were active enemies engaged in war and within the insurrecto lines. In this state of facts the military government demanded of Smith, Bell & Co. the $100,000, and the firm paid it under protest. The party who held the draft was notified that if he attempted to use it, his goods and property would be seized and appropriated. The conduct of the military governor in this case was entirely proper. The firm of Smith, Bell & Co. in Manila was ■enjoying the protection of the United States military forces. It was an act of disloyalty to the military government for it to negotiate the draft on January 23, 1899, as its branch at Legaspi did. To have consummated the transaction by hon- oring the draft when it arrived in Manila would have been adhering to the enemy, giving them aid and comfort. It was the merest dictate of prudence for the military authorities to prevent it. 1 I. Magoon, p. 261. EIGHTS REGAEDING PUBLIC PROPERTY. 25 1 255. The question whether property of the vanquished State, the possession or destruction of which can have no in- fluence on the result of the conquest, properly may be either appropriated or destroyed, has received elaborate discussion. On principle it would seem that it can not. For although ancient practices were otherwise, the modern rule is that no force is lawful except so far as it is necessary. And in its ap- plication to property the limit of the rule seems to be the se- curing indemnity for present expenditure, obtaining the means of prosecuting hostilities, and depriving the enemy of what- ever will enable him to maintain the war.i Hence, by the modem usage of nations, temples of religion, public edifices devoted to civil purposes only, monuments of art, and reposi- tories of science are exempted from the general operations of war. 2 When Frederick the Great took possession of Dresden in 1756, he respected the valuable picture gallery, cabinets, and museums of that capital, as not falling within the rights of a conqueror. In the case of the Marquis de Somereules (Stew- art's Vice-Admiralty, Rep. 482) the enlightened judge of the Vice -Admiralty Court at Halifax restored to the Academy of Arts in Philadelphia paintings and prints captured by a British vessel in the War of 1812 on their passage to the United States, and he did it "in conformity to the law of nations, as practiced by all civilized countries, because the arts and sciences are admitted to form an exception to the severe rights of warfare." 3 256. The occurrences which in modern times have given rise to the fullest examination of this subject followed the French Revolution. After his conquest of Italy in 1 796, Bona- parte compelled the Italian States and princes, including the Pope, to surrender their choicest pictures and works of art to be transported to Paris. Subsequently the same line of con- duct marked the career of that conqueror, as one after another I. Wheaton, Sees. 343, 346; Vattel, Chap. 9, Sec. i6i. 2. American Instructions, Sec. 2, clauses 4, 5; Bluntschli, I., Sec. 134; Hague Confer- ence, Sec. 3, Art. LVI. 3. Kent, I., 93(a). 252 MILITARY GOVERNMENT AND MARTIAL LAW. most of the cities and capitals of Europe were occupied by his armies. There is no doubt that these transactions might liave been legitimate, i It was entirely competent for the owners of works of art to dispose of them by treaty stipulations to the conqueror, and in this manner it was claimed most of those were obtained which, by the means described, were made to grace the famous museum of the Louvre. Nor would a subsequent claim that the war was unprincipled, which led to such alienations, in the least affect their sufficiency and validity, for this would put an end to all certainty as to the results of the armed coniiicts of nations, as no vanquished party ever regards the cause of the enemy as other than un- righteous. But in fact very many art treastues which were thus carried to Paris from other countries were taken posses- sion of under no other pretext than as trophies of war. At the time these transactions were generally denounced as being beyond the ptle of civilized warfare, particularly by English writers, with whom, however, as a general rule, national preju- dice may have had more influence than considerations of en- lightened polic}'^; yet, without enteiing into the question of motives, their position ht s had the support not only of jmsts and publicists, but of military men, and has generally com- mended itself to the better reason of mankind. These views are generally in accord with the provisions of the instructions for the United States forces in the field. It is here laid down that classical works of art, libraries, scien- tific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. But it is likewise provided that if these rare and valuable instruments or collections can be removed without injury, the conqueror may order them to be seized and removed for the benefit of the conquering State, the ultimate ownership to be 1 . American Instructions, Sec. 2, clause 6. EIGHTS REGARDING PDBLIO PROPERTY. 253 settled by the treaty of peace. In no case, however, were they to be privately appropriated or wantonly destroyed or injured, i The right of appropriation is here broadly sustained. It is a right that may be called perfect, yet general settlement is against asserting it, and it unmistakably is falling into dis- favor. The modern drift of thought appears to be in favor of permitting works of genius to remain to grace the place that gave them birth. 257. The invasion of France by the allied powers in 1815 was followed by the forcible restitution of the pictures, statues, and other monuments of art collected from different conquered countries in the Louvre museum. This the congress of allied powers, assembled in Paris, was solicited to do by those States which had been despoiled. Upon what principles, it was asked, could France expect to sit down with the same extent of pos- sessions which she held before the Revolution, and desire at the same time to retain the ornamental spoils of all other countries ? Was there any possible doubt as to the issue of the contest, or of the power of the allies to effectuate what justice and policy required? If not, upon what principles could they deprive France of her late territorial acquisitions and preserve to her the spoliations consisting of objects of art, appertaining to those territories, which all modern conquerors had invariably respected as inseparable from the country to which they be- longed? 2 These or similar reasons prevailed with the allies; yet even in England the measure was not universally ap- proved. Sir Symuel Romilly, speaking in the House of Com- mons," said that he was by no means satisfied of the justice of the measure; that it was not true that all these trophies had been carried away as spoils of war; the most valuable of them had become the property of France by treaty stipulation.s ; that it was no answer to .say that those treaties had been made under duress, for there would be an end of all faith be- tween nations if treaties were to be disregarded on this plea; I. American Instructions, Sec. 2, clauses 5, 6. 2. Wheaton, Sec. 353; Twiss, Law of Nations^ p. 130. 254 MILITARY GOVERNMENT AND MARTIAL LAW. and moreover that the very States which were clamoring for a restoration of these articles were those which abetted France in waging these so-called unjust wars. 258. The rule, "Might makes right," is that which often controls in warfare. Softened in application it has been in- deed through the refining influences of civilization, but its integrity is not sensibly impaired. The question what is al- lowable under the rules of war generally resolves itself into one of power. From the exercise of that power there is no sufficient reason for the assertion that paintings, statuary, and other art treasures belonging to the enemy State will hereafter more than heretofore invariably be held inviolate. Still the writings of publicists, the decisions of jurists, and the general practices of successful commanders, as a rule, being in derogation of such right, it is certainly falling into dis- repute, the precursor, let us hope, of final abandonment of all claim to its being recognized as a right of war. 1 259. With regard to the useless destruction of such articles there has been in modern times a decided preponderance of public opinion in a direction adverse to such practices. Struct- ures of a civil character, public edifices devoted to civil pur- poses only, temples of religion, repositories of science, equally with monuments of art, are exempt from the devastations of war. In entering the City of Mexico as a conqueror in 1847, General Scott issued an order announcing that the capital, its chruches and religious worship, its convents and mon- asteries, its inhabitants and property, were placed under the special safeguard of the faith and honor of the American Army. 2 This but confirmed his previous promises to the Mexicans that his aimy would respect private property of every description, and the property of the Mexican Church. 3 This conduct was in striking contrast to that of the British commander, who, after the capture of Washington in 18 14, dt- I. Manning, p. 188; Bluntschli, I., Sec. 141; Twiss, Law of Nations, p. 129. 2. Scott's Autobiography, p. 545. 3. Mansfield's Mexican War, p. 212; American Instructions, Sec. 2, clauses i, 4. RIGHTS EEGARDING PUBLIC PROPERTY. 255 stroyed the public buildings with their contents. This, as Sir James Mackintosh well said, was an act which gave the hearts of the American people to every enemy who might rise against Bngland. It exasperated the people without weakening the Government or strengthening the perpetrators. It was an attack not against the strength or resources of the State, but against the national honor and public affections of the people. After twenty-four years of the fiercest warfare, in which every great capital of continental Europe had been spared, almost respected by enemies, it was reserved for England to violate all that decent courtesy toward the seats of national dignity, which in the midst of enmity manifests the respect of nations for each other, by an« one point, namely, whether or not martial law legally could be enforced in districts far removed from the tread of contending armies, 42 2 MILITARY GOVERNMENT AND MARTIAL LAW. or the operations immediately attendant thereon. The ma- jority, in the proportion of five to four, held that it could not. 429. In enforcing martial law the officers act within and not outside the pale of law. As was said by the Supreme Court of the United States in Luther v. Borden :i "Unquestionably a State may use its military pcwer to put down an armed insur- rection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essen- tial to the preservation of order and free institutions, and as I necessary to the States of this Union as to any other govern- j ment. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force and the declaration of maitial law, we see no grjund upon wliich this court can question its authority." 430. The case which called forth this opinion arose, as is well known, from an attempt forcibly to change the government of Rhode Island, and was an action of trespass for assault and false imprisonment, brought for breaking and entering the plaintiff's house with an armed force and taking and holding him a prisoner. The defendants, who were acting at the time in pursuance of martial-law au hority, justified, pleading, in substance, the existence of the insurrection, the declaration of martial law by the legislature, thac plaintiff was aiding and abetting the insurrection, and the defendants, members of an infantry company acting under the governor's orders, broke into the plaintiff's house for the purpose of arresting him. The court held the breaking and enteiing entirely justifiable under the circumstances, declaring in most decided language that without the power to proceed to such extremities the government would be powerless against rebels, the declaration of martial law a useless procedure, the array of military force thereunder mere empty parade; but the court to:)k care sedu- 1 jusly to guard the rights of the people by remarking that no I. 7 Howard, p. i. THEORY OF MAICTIAL LAW IN THE UNITED STATES. 423 greater force on the part of officials was to be used than that necessary to accomplish the object; and if under color of this martial-law authority power be used for the purpose of op- pression or any injury wilfully be done to either person or prop- erty, the responsible pai ty would undoubtedly be answerable 431. The rule of amenability heie stated is none othei than an extension of the common-law principle of responsibility when official powers are abused. The correctness of the rule laid down b y the Supreme Court will scarcely be questioned It foUo^vs that the absolute military power contended for by counsel in the Milligan case is not possessed by officers upon whom is conferred the duty of carrying martial law into exe- cution. However high they may soar on the wings of au- thurity, their actions may be overlooked and inquired into by a still higher power. 432. Such at least are the recognized principles of the law; yet there have been grave, although it is believed ill-founded, apprehensions that the actual facts might be otherwise; and tint alarmists only, but good, learned, patriotic men have in dulged these gloomy forebodings. "The danger of our govern- ment," wrote ex- President John Adams, "is that the general will be a more powerful man than the President, and the Army possess more power than Congress. The people should be apprised of this and guard themselves against it. Nothing is more essential than to hold the civil authorities decidedly su- perior to the military power." i The experience of nearly a century since this was written, has not, however, confirmed these fears. If communistic importations be eliminated, no one with candor will assert that devotion to the principles of civil and religious liberty is anywhere more conspicuous than among the people of the great Republic with whom martial law, while not unknown, yet when enforced has proved but a mere passing distemper growing out of those temporary disor- ders incident to all governments. I. Works, Vol. 10, p. 17. 424- MILITABY GOVBENMBNT AND MAETIAL LAW. 433. There is no portion of the community more deeply imbued with this sentiment than the military. Officers trained to arms instinctively shrink from the responsibilities and an- noyances incident to conducting municipal affairs which they at best but imperfectly understand. Their desire is that civil government shall pursue its ordinary course with the assist- ance, if need be, of the military acting in conjunction with, yet in subordination to, the civil authorities. If we seek an ex- planation of this, we need look no fitfther than the simple con- sideration of self-interest, if we deny that it is based on pa- triotic sentiments, which latter, however, form its tiue found- ation. While the civil authorities act as indicated, they and not the military are answerable for results. Few men desire unnecessarily to assume this responsibility. For the reasons suggested military men avoid it. They can gain nothing by assuming it. But the time having passed within which it is possible for civil authorities to protect life and property and secure society against disorder, it then becomes necessary for the only force remaining in the community to act, which, as pointed out by the Supreme Court in the opinion just quoted, is the military. When officers of the army are called upon under these circumstances to enforce martial law, the situation is not one )f their seeking, or which they have been insrumental in bringing about, but is forced upon them by an overpowering necessity, the result of the weakness of the ordinary powers of government. 434. And so when martial law is rendered justifiable within our own territory to repel invasion. The condition of affairs at New Orleans in 1 814-1 5 illustrates this. The circumsstance attending the exercise of martial law on this occasion will be more particularly mentioned hereafter, when treating of the nature of the necessity which alone justifies the measure ; for the present it suffices to call attention to the fact that the ene- my, flushed with the triumphs of the protracted and sanguinary struggle in the Spanish Peninsula, had landed in apparently overwhelming force near the city. To repel him became the THEOET OF MARTIAL LAW IN THE UNITED STATES. 425 supreme duty of the hour. All other considerations became for the time insignificant compared with this. Success demanded the united exertions of the community, the directing to that end, and with a single hand to guide them, all defensive means of the threatened territory. With this object in view the citizens united in calling on the commanding general to proclaim and enforce martial law. The enemy, advancing in all the pride of anticipated success, was repulsed; the flower of the British Peninsular army fled before troops to a great degree raw levies who were held together by the indomitable will of their commander. All the elements of strength which the district afforded were gathered together to compass the enemy's defeat. On that day was written one of the brightest pages of the country's history. Only the complete military control exercised over the community and all that was in it rendered such a result possible. 435. For the time being, and in that locality, the military commander could truthfully have said, "I amthegtate." Speak- ing of the authority he then assumed, he afterwards remarked that he well knew the extent of his ordinary powers, and that they were far short of that which necessity and the situation re- quired. He determined, therefore, to venture boldly forth and pursue a course correspondent to the difficulties that pressed upon him. He had an anxious solicitude to wipe off the stigma cast upon the country by the destruction of the capital. If New Orleans were taken, he knew that new difficulties would arise, and every effort be made to retain it; and that if regained, blood and treasure would be the sacrifice. His determination, therefore, was formed not to halt at trifles, but to lose the city only at the boldest sacrifice, and to omit nothing that could insiu-e success. It might be that calculating paliticians, igno- rant of the difficulties that surrounded him, would condemn his course; but this was not material. What became of him per- sonally he considered to be of no consequence. If disaster did come, he expected not to survive it ; but if a successful defence could be made, he felt assured that the country, in the objects 426 MILITAEY GOVERNMENT AND MARTIAL LAW. attained, would lose sight of and forget, if it did not approve, the means that had been employed. ^ Public opini m at the time throughout the Union approved his action as being both necessary and patriotic, and in this posterity has confirmed the judgment of his contemporaiies. But it will not be forgotten that the situation was one which the commanding general neitner created nor wished co perpetu- ate. Could he have f mght the enemy with reasonable cnances of success, ac the same time leaving the municipal authorities undisturbed, he would gladly have done so. In fairness, there- fore, this can never be cited as an instance of military usur- pation. And although misunderstandings arose with the local judiciary regarding the nature and extent of the military au- thority exercised, the verdict of history has sustained the com- manding general in the heroic measures he adopted to drive from its soil the invaders of that distant frontier. Judges sit- ting after the event in that security and quiet which the meas- ures adopted by the commander alone rendered possible, were sometimes inclined to question the legality of those very meas- ures the results of which they accepted without hesitancy and enjoyed in quiet and repose. This was perhaps not unnatural, as the authority temporarily assumed by the commander was at variance with ordinarily recognized judicial rights, and friction was the result; but the calm judgment of the country, that exponent of the intelligence of the people, by which is weighed as in a balance the merits of generals in the field and judges on the bench, both then and since has overwhelmingly sustained I. Parton's Life of Jackson, Vol. 2, p. 60. Note. — While martial law was being exercised on this occasion, a civilian, Louis Louaillier, published a newspaper article in the city re- flecting upon and protesting against some of the acts of the commanding general. He was promptly arrested. Federal Judge Hall issued a writ of habeas corpus to release him. The judge was then arrested, kept in cus- tody a few days, and then sent beyond the military lines. Upon the restoration of civil jurisdiction the judge fined the gen ral one thousand dollars for contempt, which was paid at once. The money, with interest, was afterwards returned to him by Congress. THEORY OF MARTIAL LAW IN THE UNITED STATES. 427 the commander, and with this judgment there is reason to be- lieve the better judicial opinion of the country concurs, i 436. We thus see that martial law is dominant military rule springing out of necessity and exercised under ultimate military and civil responsibility. When, because of internal commotion, the bonds of society are loosened, and the people, stripped of that protection which government is instituted to afford, or when, in presence of an invading army, it becomes necessary to concentrace every element of resistance to repel it, the necessity for enforcing martial law arises. Yet it is not to be put in practice in an irresponsible manner. As a rule, those who call it forth can be held strictly civilly answerable; 2 while those who carry it into execution may always be required to givean account of theii stewardship. There is nothing here to alarm the good citizen. It is the strong arm of military power -interposed either between him and anarchy, or his home and the horrors jf invasion. 437. The establishment of martial law does not of necessity create antagonism between the judicial and the military author- ities. In fact, these two powerful instrumentalities, if their functions be examined, will be found to supplement each other in the great work of preserving jrder in the community. The duty of the one begins where that of the other ends. If the judiciary be not elective, it is placed above the temptation of being influenced by popular clamor. On that plane it joins hands with the military in their effoits to secure to the citizen the advantages of well-regulated government. Nor have the efforts of the latter, acting with calmness, firmness, and disci e- tion under martial law, ever received more successful vindica- tion than from the able judges who have adorned the highest ranks jf the judiciary of England and the United States. 438. In the aspect that it is the exercise d the last power of government, when civil authorities either will not or cannot perform their part, martial law springs out of che infirmities of I. 21 Indiana, p. 370; 4 Wallace, p. 2. 2. The failing case would be where the legislature instituted martial law. 428 MILITARY GOVERNMENT AND MARTIAL LAW. municipal law; when resorted to on the theater of military operations or to repel invasion, it has its foundations in the cus- toms of war. In England it is presented in the former view only, while in the United States not only has the Federal Gov- ernment had experience in both branches, but it has been ex- tended to some of the States and Territories of the Union. 439. Nor can more instructive instances be adduced of resort being had to this law of necessity than were afforded by the Southern Confederacy during the Rebellion. It matters not that this Was the experience of rebels; for it must not be for- gotten that though the Confederate States were in insurrection, yet they had for several years a regularly organized govern- ment ; the people, united by common sympathy, had instituted a compact and powerful union modeled upon that whose alle- giance they Were endeavoring to renounce. The repugnance of the people and authorities of this formidable rebel government to even the shadow of military supremacy was conspicuous. And yet experience quickly taught them that the laws of peace may not in all respects be suited to the exigencies which in- variably accompany violent governmental crises. 440. Whenever, particularly during the first two campaigns of the war, they were confronted with a condition of affairs which threatened either the success of their arms or disastrous civil commotions in their midst, they did not hesitate to call martial law to their aid. They saw that therein lay their safety; for if the laws of peace are to be stretched, twisted, and turned to adapt them to a condition of affairs which they • were never intended to meet, these laws themselves will be- come unsuited to their proper functions. The channels in which they pursue their course are well underscood. But let them be diverted therefrom on the ground either of convenience or necessity, and at once that certainty which is the very es- sence of proper civil administration disappears. Under such circumstances men cease to regard the law, because they cannot know what their rights are under it. Such confounding of ideas regarding the scope of municipal administration cannot THEORY OF MARTIAL LAW IN THE UNITED STATES. 429 buc affect prejudicially the well-being of the community. Far better restrict the operation of ordinary laws enacted for and suited to quiet times to their proper sphere, and, on those occasions which under all governments arise, when public emergencies for what cause soever render these laws inadequate through disturbances and civil commotions to meet the ends for which they have been enacted, temporarily to replace them by that sterner, more summary, yet more efficacious rule of the sword, wielded, as it must be in all well-regulated States, under a proper and abiding sense of legal responsibility. ^ 1. See Sees. 602, 603, 604, Chap. XXV., post. CHAPTER XX. Martial Law Supplembnts Common Law. 441. The common law has been eulogized as the perfection of reason. There is certainly much in it to admire. It was rough-hewed, indeed, and in some respects barbarous; the many statutes of modern times, both in England and this country, smoothing down its asperities, being evidence of this. But its foundations were laid in justice and fan dealing ; it was essentially a law of fieemen, and it taught men to rely for their defence, the preservation of their lives, liberty, and property, upon their own tight arms. Its proudest eulogium can never be written; it exists in that nation which grew up as part and parcel of the common law itself, and which has for centuries increased, in strength under its beneficent influences. Yet in one important respect the common law was based on error. It assumed that there was always at its disposal an armed force adequate to the preservation of the public peace and security, while there might and in fact often did happen un- lawful uprisings which overwhelmed the civil authority and for the time being left society a prey to disorder. 442. This weakness was originally due to the unbending love of freedom of the people which rendered them intolerant of control. They would not part from one iota of their natural liberty until long after the necessity of the sacrifice was fully demonstrated. Moreover, they relied upon their trusty swords for righting all wrongs. But civil commotions were bound to arise. No government has existed or apparently can exist with- out them; they seem to be inseparable from human existence. Yet when they arose in England prior to the establishment of the regular military force, there was under the common law no way of dealing with them except the illusory one of calling on 43° MAETIAL LAW SUPPLEMENTS COMMON LAW. 43 1 the people to put down the uprisings of their own brothers, neighbors, and friends with whom they sympathized. 443. It was the inadequacy of such a reliance for the preser- vation of order and the repression of lawless violence which led many of the early sovereigns of England to resort to what was denominated martial law. Before finding fault it would be well to point out what course c juld have been pursued except to resort to the rule of force. In many instances the alternative appeared to be either martial law or anarchy. Could the sover- eign hesitate ? Yet power needs to be controlled ; left unbridled it soon degenerates into tyranny. England proved no excep- tion to this rule. On the other hand, as Hallam remarks, the existence of a regular military force to aid in the preservation of order and the enforcement of the laws now obviates the neces- sity which formerly existed of the sovereign resorting to irreg- ular measures for preserving the peace and upholding the dig- nity of lawful authority. 444. The private citizen under the common law may en- deavor on his own account, without any command or sanction of magistrate, to suppress a riot by any means in his power. He may disperse or assist in dispersing those who are assem- bled; he may stay those engaged in it from executing their purpose; he may stop others whom he may see coming up from joining the rest. If the riot be dangerous, he may arm himself against evil-doers (that is, to resist their attacks, but not to assail them with deadly weapons unless they are in the act of felonious outrage) ; and if the occasion demands imme- diate action, it is the duty of every subject to act for himself in suppressing riotous assemblages.^ And he may assume that whatever is done by him honestly in the execution of that object will be justified by the common law. 445. The difficulty of the situation is that if one not riotously involved be killed, the slayer is criminally responsible. On the one hand, if he exceed his power and occasion death or other I. Blackstone, Com. IV., p. 293; Whiting, War Powers, p. 176; Chitty, Common law, p. 217. 432 MILITARY GOVERNMENT AND MARTIAL LAW. injury, he is liable to be proceeded against for murder or man- slaughter; and on the other, if he does not do enough, he is liable to be proceeded against for culpable neglect. Practically the common law fails in the presence of a really formidable disturbance unless supported by adequate military force. Kven in counselling how this should be used the magistracy have often hesitated because of the responsibility involved; the military, except when ordered by those having unques- tioned authority, naturally hesitate to use their arms against the citizen. That is the most thankless and disagreeable duty that can be imposed upon the soldier. 446. Nor could the military lawfully kUl at common law, even where the felon was caught in the felonious act, unless this were necessary to prevent the felony being consummated, or to prevent the felon's escape, or unless in encounter with a felonious or rebellious body of men. Hence it is not surprising that the common law, even with the assistance of a subordinate military force, should prove not well adapted to times of great civil commotion. 447. In some respects under that law the rioter was more favorably situated than its officers. He could be convicted only after all reasonable doubt as to his guilt was removed from the minds of a jury composed of his peers. That guilt had to be established under the strict technical rules of evidence ap- plicable to criminal cases, and all of which were especially in- tended to guard the legal rights of the criminal. The officer, on his side, acted in suppressing any disturbance at his peril. If loss of life resulted from his acts, it was necessary that he show justification under the law governing homicides. His position in this regard was not an enviable one. It was neces- sary foi him to follow the precise line marked out by the law — often a difficult task in times jf peace, and all the more so when amidst civU disturbances, the fears, hopes, and passions of men are excited and calm deliberation before decisive action often is rendeied impossible. MARTIAL LAW SUPPLEMENTS COMMON LAW. 433 41.8. It has been said that the common law is based upon considerations affecting (i) the public good; (2) the safety of the community. But in emergencies it recjgnized another rule as applicable— namely, the customs of war. Did rebellion close the courts in fact, resort was had to this more summary rule. In truth this was demonstrated to be a necessity, for the common-law povgi^ers of anticipating civil disorders were nil, while those of suppression and prosecution, as just seen, were incompetent to cope with rebellion. 449. When we considei the inadequacy of common-law power effectually to deal with popular disturbances of magni- tude or fierceness, and the fact that the sovereign had not ready at hand a military force to suppress riots, insurrections, or rebellions in their incipient stages, it is not to be wondered at that the crown, when the civil magistracy could not protect life and secure property, should resort to the swifter, more certain, and effectual measure of martial rule. 450. The danger to be apprehended was that this power, if permitted to be exercised at all, would be turned into an instru- ment of oppression.^ ' And notwithstanding the barons, sword in hand, had at Runn)rmede in 12 15 forced from the crown an acknowledgment that the great principles of liberty em- braced in Magna Charta were the law of the land, the plea of civil commotion might be used as a cloak for the exercise of irresponsible authority. 451. Yet the weight of authority is to the effect that it has ever been deemed constitutional for the sovereign in times of disorder and turbulence to use the military power of the crown for the speedy repression of enormities and the restoring of the public peace. It has been conceded always that there are times when the ordinary course of justice is, from its slow and regu- lated pace, utterly inadequate to the coercion of the most dangerous crimes against the State when every moment is critical; and, without some unusual measures on the part of the authorities, society would be disturbed and government itself shaken. The extension of power beyond its ordinary Hm- —28 434 MILITARY GOVERNMENT AND MARTIAL LAW. its is therefore in such tiraes justified on the piinciple of abso- lute necessity. 1 And in this. Mr. Sergeant Spankie concurred wben he wrote cnac martial law was in fact the power of social defence, superseding under the pressure, and therefore under the justification, of extreme necessity the ordinary forms of justice. 2 In such cases ic is held that by virtue, of the neces- sities of the situation, the crown in the exerciJsf of its prerog- ative^chat is, of its right to do its duty, at all hazards, to pre- serve the peace of the realm — proclaims martial law. "And although," says Finlason, "it might be doubtful at common law whether the exercise of martial law would be justifiable except in districts covered by rebellion, yet if there were such a degree of danger in the district by reason of its contiguity to the scene of actual rebellion, and imminent danger of its spread- ing, that migHt be enough to excuse an honest exercise of it under supreme authority, or even to justify it legally."* This recently was veiified in some of the Cape Colony districts. 452. As to the colonies, the Petition of Right did not affect the prerogative of the crown, which could scarcely be said to be aught than a shadow if it did not embrace tne power of putting down rebellions in those distant possessions by the firm meas- ures of martial law. In the colonies which afterwards became the United States there existed from the fiist an abhorrence of military rule. The suggestion of it on any occasion was received with aversion. In great measure the people had left the comforts of life behind them to escape from oppression. They were willing to brave the dangers and hardships of the wilderness that they might breathe the air of freedom. For many years they saw no military force save that raised from among tneir own ranks to ward off attacks of the Indians, to follow and punish them in their fastnesses, or to carry on war against the enemies of the mother country in the western world. I. Tytler, Military Law, p. 52. 2. Hough's Military Law, p. 350., 3. Commentaries on Martial Law, p. 129. MAKTIAL LAW SUPPLEMENTS COMMON LAW. 435 453. When the Revolution of 1775 was precipitated, the people had thus become familiar with practical military life in a new country, but they had not contemplated for one moment the possibility of deposing the civil by military authority be- yond the limits of the armed camp. Accordingly the procla- mation of martial law, June 12, 1775, at Boston, by the royal governor. Gage, was reprobated as an act of despotism. Yet if such proclamation were ever justified, it was here. The colony was in a state of insurrection. The royal fDrces, sent out to secure public propetty, had been attacked, compelled to abandon theii enterprise, and many of them killed. The sympathy of the people was with the assailarts of the troops. This was rebellion, pure and simple; if not, it were difficult to show what constitutes rebellion. And it does not in the least afifect the facts as they then existed that the perpetrators in this act are honored by us as patriots ; success made them that. 454. On May 3, 1775, Gage wrote to Governor Trumbull, of Connecticut: "You ask wtiether it will not be consistent with my duty to suspend on my part the operations of war. I have commenced no operations of war but defensive; such you cannot wish me to suspend while I am surrounded by an armed country, who have already begun and threaten further to prose- cute an offensive war, and are now violently depriving me, the King's troops, and many others of the King's subjects under my immediate protection, of all the conveniences and neces- saries of life, with which the country abounds." So of Lord Dunmore's proclamation of martial law in Virginia, Novem- ber 7th, same year. The events whicn were transpiring around him plainly justified such action on his part, which was not taken until after troops were being raised and trained for che avowed pturpose of resisting the constituted authorities in their efforts to uphold the law of the land. 455. These and other similar measures, taken elsewheie by the royal governors, were regarded by the people as evidences of a predetermined plan on the part of the crown to reduce them to a condition but little removed from slavery. Accordingly, in 436 MILITARY GOVERNMENT AND MARTIAL LAW. the Declaration of Independence, it was one of the charges brought against the crown that it had affected to render the military independent of and supeiioi to the civil powei. Still, as the royal governors were answerable to their government for the maintenance of order and the due observance of the" laws in their respective colonies, it would be difficult to estab- lish that they exceeded their authority by proclaiming martial law. The course of justice was obstructed. The courts per- formed their functions imperfectly. The Executive Depart- ment was thwarted in its efforts at maintaining order. Troops were being raised by the colonists, arms and ammunition col- lected to oppose the measures of government. Ace )rding to all accepted ideas, this was a fitting occasion for the employment of the most efficacious methods at che command of the authorities, even if it involved proclaiming martial law. The fact that they were tried, and at once was precipitated the stiuggle which resulted after eight years in the complete independence of the colonies, in no manner derogates from, the correctness of the position which the royal governois took in theii efforts to cause the authority of the crown to be respected. It was their duty to enforce the law as they found it. The crown, upon issuing their commissions, had expressed especial confidence that they would do this. 456. The Revolution of 1775-83 was characterized by heroic sacrifices. But it would be practicing self-deception to imagine ttiat ic was not accompanied by che usual incidents of plunder, hardship, and oppression, the inevitable concomitants of war, particularly when waged to suppress rebellion. On numerous occasions the military assumed supreme control even with the colonists. The principle of the subordination of military to civil power was, however, never lost sight of. When the for- mer predominated it was well understood to be but for a passing occasion. 457. Perhaps the most conspicuous instance of military supremacy was in the latter part of 1776 and early 1777. The closing year had been one of disaster to the American arms MAETIAL LAW SUPPLEMENTS COMMON LAW. 437 New Y )rk city with its adjacent defences had been seized by the enemy. The commander-in-chief, with but a handful of troops, had been chased almost in derision across New Jersey. The army seemed to be disintegrating, the terms of service of the troops were expiring, and a reorganization of the army in the very teeth of the enemy was slowly being carried on under circumstances of discouragement. . Philadelphia, where Con- gress sat, was thieatened, and, lo avoid captui^e, that body hastily adjourned to meet at Baltimore. It was then that by f Drmal resolve of Congress all affairs of government, in so far as they related to the piosecution of the war, were placed for the time being in the hands of the commander-in-chief. 458. By this act the civil was completely subordinated, wherever necessary, to the military power. But the trust was not abused. Whatever it was necessary to do for the safety of the country, that the military chief did until Congress again took up the reins of authority. In his conduct on this inter- esting occasion he acted with that moderation which generally will be found to mark the- exercise of military authority by other commanders upon whom great responsibility rests, either his contemporaries, or those who, following upon later stages of the country's history, have had the benefit of his patriotic example. CHAPTER XXI. Nature of Necessity Justifying Martial Law. 459. If we inquie regarding the nature of 'he necessity whi h alone justifies martial law, the answer is that it arises out of a condition of affairs which cannot be met by the oidinary municipal authorities. This excludes the idea of expediency, although it often may be difficult to determine wneie expe- diency ends and necessity begins. 460. "When the necessity arises, the military power is par- amount, and the laws are silent. But war is an anomalous condition. When peace is restored or the necessity for mili- tary rule has terminated, the supremacy of the civil laws is re- stored." 1 It is true the court had not here in mind a case of technical martial law, yet the piinciple announced as to the supremacy of military rule upon occasions of necessity is of the veiy essence of martial law. In this instance a rebel officer had during the progress of the Rebellion stolen into New York city for the purpose, in conjunction with others, of burning it. After hostilities had ceased, he was arrested both as a spy and for attempted arson. It was while releasing him from custody undei'the chatge of being a spy 2 that the language quoted was used. 461. Military rule was not unknown, however, in New York cicy during that great struggle for the preservation of the Union. On the 13th of July, 1863, a serious and extensive riot broke out there in opposition to the draft co fill the ranks of the Union army. Before it was suppressed one thousand lives were sacrificed either to the frenzy of the mob or the fire of the troops. For several days the city was virtually under mob rule. The civil authorities, partly through sympathy with, partly through I. In re Martin, 45 Barbour, p. 142. 2. In this connection, see Sec. 1343, R. S.. U. S. 438 NATURE OF NECESSITY JUSTIFYING MARTIAL LAW. 439 terror of the rioters, and partly through inadequate physical force to grapple with so widespread an uprising, weie utterly unable to enfoice the laws. The military then took possession of the city and restored order. Had it not been for this ener- getic use of the troops, the hopes of the rebels might have been realized, the city i educed to ashes, and the cause of the nation struck a dangerous if not a fatal blow. 462. The necessity which justifies maitial law will vary with circumstances. If it be a case of civil commotion, a not unnat- ural inquiry will at once be made regarding the efforts Wiiich the civil officers, including the courts, have put forth to perform their functions. Hence Blacks cone's remark, that martial law is built upon no settled principle, but is entirely arbitrary in its decisions and ought not to be permitted in time of peace, when the king's courts are open to all persons to receive justice according to the laws of the land. ^ By this wao of course meant that the courts were not only open, but able and willing to perform their functions and enforce their mandates. 463. In the nature of things, it is extremely difficult to fix upon any definite rule by wnich shall be determined, in an- ticipation of the event, whether or not martial law shall be put in lorce. Is the test to be that courts of justice can not perform their duties? In ttie first place, there may be an irreconcilable difference of opinion as to whether or not such exigency has arisen. Is it necessary that judges be actually pulled from their seats; or does it suffice that the public disorder renders the ad- ministration of justice precarious, fitful, uncertain, thus defeat- ing the purpose for which courts are organized ? Again, the difii- culties of tne situation may be increased by the conduct and sympathies of the judges themselves. They retain the passions of men, and remain to some extent at least influenced by early education and prejudice. This is the common experience. The course oi judicial decisions may be appealed to in verifica- tion of the assertion. This is not said to detract from the 1. Vol. I, p. 413. 44° MILITAKY GOVERNMENT AND MARTIAL LAW. dignity, learning, and impartiality of that noble department of governmen c — the judiciary. It needs neither defence nor praise It is venerated beyond any other instrumentality devised for the building up and preservation of society. It is treasured in the affections of the civilized world. It holds in its keeping the lives and property of rulers as well as of the people — bringing all to the common touchstone of the law — nor could any wish that this guardianship rested elsewhere, nor could it be placed in safer hands. That. is the general rule. This fact makes exceptions the more conspicuous. The elevated standard established for the judiciary makes that standard the more difficult to reach and maintain. Still human nature is the same on the bench as else- where. If there be not independence of position there is not likely to be independence of action. Until cured by the act of settlement, i the dependence of the judge upon the crown was deemed to be one of the greatest blemishes, not to say weak- nesses, of the English Constitution. Prior to this judges held their seats at the pleasure of the king. The effect of this was markedly prejudicial to the administration of justice. The in- terests of private subjects meet on very unequal footing the pretensions of the sovereign. "It is requisite that courts of justice," sayi Kent, "should be able at all times to deal im- partially between suitors of every description, whether the cause, the question, or the party be popular or unpopular. To give them courage and the firmness to do it, the judges ought to be confident of the security of their salaries and station." 2 If this be true — and who will deny it ? — it is easily seen that if judges are not so secured, they may shape their course to catch the popular breeze. They will not lose sight of their own while serving the public interests. To imagine otherwise would be plainly illusory. As a result they may be influenced by that feeling in some communities which leads to a question- ing of established authority ; and whether this feeling manifest itself in mere local riots or extended rebellion, they naturally I. 12 and 13 William III , Chap. 2. 2. Vol i, p 294. NATURE OF NECESSITY JUSTIFYING MARTIAL LAW. 44 1 take the part of those who put and keep them in oflfice. Judges under such circumstances may see much that is commendable in the actions of their neighbors and friends even when stran- gers do not. They may not, when so situated, be capable, even if willing, of meting out justice fairly and impartially and as they would if their personal, professional, family, and pecuniary interests were not so intimately involved. What boots it, then, that courts are open and free to render their dicisions if for this or other cause justice will not be administered? 464. Not to mention other instances, the border States with- in the Union lines furnished numerous cases illustrative, of this fact during the Civil War. The remedy was martial law. Sum- mary took the place of the usual courts of justice. No govern- ment worthy the name will be bound by its own agents at the feet of a foe, either foreign or domestic. Nor will this be per- mitted under the guise of legal proceedings. The important and vital point may be, not that courts can not, but that they will not do their duty. This was evidently thought to be the case in Ireland in 1803. 1 When such a contingency arises, it is not only the right, but the duty of the government whose integrity is thus assailed to adopt whatever measures are necessary to cure the evil which threatens it. That is what the Imperial Parliament proceeded to do during the Irish rebellion, 2 while the act of Congress of July 19, 1867, establishing martial rule over the late rebellious States, made it the duty of the .military commanders to remove from office all persons who were disloyal to the United States, or who used their official influence in any manner to hinder, delay, prevent, or obstruct the due and proper administration of the laws. It is a well-known fact that this power was as frequently exercised in the case of judges as of others. 3 465. There may be other obstacles which, equally with physical force, render the civil authorities incapable of serving the purpose of their being. If they can not perform their duties, I. 43 George III., Chap. 117. 2. See act just cited. 3. See Chap. XXIII , post. 442 MILITARY GOVERNMENT AND MARTIAL LAW. it matters little what the cause is. They exist for the benefit and protection of the people. When, with the facilities the law has given them, they cease to perform their functions, they be- come an incumbrance to society. Experience has everywhere shown that this stopping the wheels of civil government, or diverting the course of affairs into improper channels, may re- sult just as easily in times of civil commotion from indisposition on the part of officials as from the interposition of physical ob- stacles to prevent them doing their duty. The danger in the former case is the greater because the m.ore insidious. When it appears, it should be dealt with promptly and decisively.^ 466. The same principles apply in case of invasion. It is true that the Supreme Court of the United States has said that martial law can not arise from a threatened invasion j^ that the necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil adminis- tration But it is apprehended that this language is to receive a reasonable construction. Otherwise it can scarcely stand the test of time and experience. In the presence of invasion, either actual or threatened, mar- tial law may become necessary for two distinct reasons. First. The commander upon whom devolves the duty of re- pelling the enemy may be justified in gathering into his hand every warlike resource of the district to direct them with the greater effect. What excuse would the commander to whom wis given the defence of the national capital have if he failed to do this, and that fair city, the pride of the nation, fell again, as in 1 8 14, into the hands of Vandals? He would be with- out excuse. There is not involved here in any degree, neces- sarily, the question of the courts being closed by overpowering fcffc'e, and the people, including the magistrates, may all be in- spired by a spirit of patriotism. It might be wholly practicable for the courts to sit as usual ; marshals might serve their proc- esses ; juries return indictments, or determine questions of fact. I. Johnson v. Jones, 44 Illinois, p. 155. 2. Ex parte Milligan, 4 Wallace, p. 2. NATURE OF NECESSITY JUSTIFYING MARTIAL LAW. 443 467. "Nothing short of necessity can justify a recourse to martial law," says Mr. Hare, "but such a necessity may exist before the blow falls. An army assembled in Canada might ne- cessitate extraordinary measures of precaution on the northern frontier, although no hostile force had crossed the line. So the able-bodied population of Philadelphia might have been forcibly enrolled to provide for the defence of the city in the summer of 1863, while Lee's army was still in Maryland, and before he entered Pennsylvania." And he observes that by confining the necessity to actual and excluding threatened invasion the Supreme Court in Ex parte Milligan v\fent too far, thus unduly limiting the right of the military authorities to provide for the safety of the community. 1 468. The municipal law provides no means for pressing all classes into the defending army in an emergency, or for direct- ing all the resources of the country to the single purpose of defeating and driving back an invader. At such times the last effective power — the military — is resorted to and becomes for the time paramount. It may be said that here is illustrated the maxim, "Necessity has no law," but at the same time is ex- emplified that other maxim of good government, "Public is greater than private necessity." 469. In his correspondence growing out of the Caroline affair, Mr. Webster, while affirming the rule which regards as inviolable neutral territory, describes a case of necessity which' would jus- tify a belligerent in disregarding the rule. The application of the law of necessity is different from that which we have just described as justifying the declaration of martial law to repel invasion, but the principle involved is the same. That states- man and constitutional lawyer admitted that the necessity of self-defence might justify hostility in the territory of a neutral power, but to d j this such a necessity must be shown, instant, overwhelming, leaving no choice of means, and no moment for deliberation. He added that the aggressor must not do any- thing unreasonable or excessive, since the act justified by the I . American Constitutional Law, Vol. 2, p. 964. 444 MILITARY GOVERNMENT AND MARTIAL LAW. rule of self-defence must be limited to that necessity, and kept clearly within it.' 470. As further illustrating this principle there may be cited several instances where, in order that frontier settlers might be protected. United States troops have followed hostile Indians across the hne to their strongholds in the mountains of Mexico at a time when there was no agreement that such action mutually . should be permitted the armed forces of the two republics. A present overpowering necessity alone could justify what other- wise would be international discourtesy, leading, perhaps, to grave complications; but as no rule had been agreed upon between the two governments, necessity, "which has no law," forged one for the occasion. In these instances of the invasion of friendly territory the government whose officer was directly an international tres- passer would be answerable to the other under the laws of nations. The officer himself, except in the rare instance when his conduct was disavowed by his government, would not be responsible. 471. On the other hand, when the commander upon whom has been devolved the duty of repelling hostile invasion assumes to establish martial law because of alleged necessity for the meas- ure, the correctness of his conclusions, as we have seen, may be judged by courts and juries whenever his acts are subsequently drawn in question. Yet the determining principle of necessity is the same in both instances. And it generally will be found to justify the measures adopted. The officer who assumes extraordinary authority under such circumstances does so, it is true, under responsibility. This is a necessary check upon capricious and oppressive conduct. But in judging of his actions his surroundings at the time are not to be forgotten; on the contrary, they are a preponderating factor in determining the merits of the case, and if he act with prudence, decision, and a judgment enlightened by his opportunities for observation I. Diplomatic and official papers, pp. 112-120. NATURE OF NECESSITY JUSTIFYING MAETIAL LAW. 445 and the single desire to serve his country well and loyally in its hour of need, he has little to fear, i 472. We have thus far considered the necessity for martial law which results from foreign invasion in the view only that the commander may direct with greatest effect all the power and resources of the district to the one object of defeating the enemy. We will now examine this necessity from another point of view — namely, the resulting terror, demoralization, even disintegration of society which sometimes accompanies threat- ened invasion. 473 Amidst this general consternation, the military com- mander may be the sole person inspired with confidence. He may encoiurage the people to pursue their affairs undeterred by fear of the enemy. But it by no means follows that he will be able to reassure those whom he thus would quiet. An undefined dread of evils to come may have paralyzed the usually strong arm of civil authority. Secret enemies, disguised as friends, contribute to the feeling of unrest. The machinery of munici- pal government stands still or works remittently. This may be unattended by civil commotion, no trace of which may any- where be discernible. No disposition may exist to thwart the ordinary authorities in the performance of their duties. And yet, while attention is fixed upon one object only, and every energy is bent to the one paramount duty — repelling the inva- sion — the power of effectively carrying on the civil government imperceptibly may pass away. But no community can live without government, which in times of great excitement must needs be active and forceful. And if it become incompetent to perform its functions, not because of opposition, but from mere inanition, nothing remains but to call forth that great reserve power, martial law. 474. Nor is the condition of affairs rendering this necessary the mere creation of fancy. It is the usual attendant upon inva- sion when resisted with spirit by a people devoted to their coun- I Hare, Constitutional Law, Vol. 2, p 920 446 MILITAET QOVEKNMEKT AND MARTIAL LAW. try's cause. Not to mention others, recall the events in the Spanish Peninsula from 1807 to 1814, when ambition carried the eagles of France first proudly in advance, only to be driven back sullenly and defiantly to the protection of their native soil ! Witness the swiftly following descent by a portion of the victorious British army upon the almost unguarded coast of Ivouisiana, and the resulting declaration of martial law as a necessary measure of defence, at the solicitation of all classes of the people — an act of fortitude and patriotism, the harbinger of the decisive victory over the invader which was its reward! 475. The declaration of martial law in New Orleans in 1814, here referred to, was the better to unite the resources of the dis- trict against the enemy. At the same time the feeling of un- certainty, discontent, and suspicion against the foreign element demanded that the most stringent measures to counteract their machinations should be adopted. When martial law was pro- claimed the enemy was not actually at the city limits. There was no physical obstacle to prevent the courts from sitting. Speaking of the general's martial law proclamation, Parton says:i "It was wholly, greatly, and immediately beneficial. The panic subsided. Confidence returned. Cheerfulness was restored. Faction was rendered powerless , treason on any con- siderable scale impossible. While the danger lasted not a voice was raised against a measure which united the people as one man against the invaders of their soil. It was felt to be a measure which grew out of the necessities of the crisis, and one which alone was adequate to it." ; 476.- On the 13th of March, 181 5, ofiicial information was re- ceived of the treaty of peace and martial law was withdrawn. Meanwhile, the enemy, beaten but hoping for reinforcements, remained hovering on the coast, anxious to wipe off the stigma of defeat. Under these circumstances the commanding general did not deem it wise to abate the rigors of military rule. He had gathered into his hands the reins of government for the purpose of beating the enemy and saving the country, and not I. Life of Jackson, Vol. 2, p. 58 et seq. NATUEE OP NECESSITY JUSTIFYING MARTIAL LAW. 447 until this object was attained beyond question was he willing to relax the rigor of the measures he had adopted. 477. The commander there was the legally and consti- tutionally auth jrized agent of the government and the country to defend that city and the adjacent territory. His duty as prescribed by the Constitution and the laws, as well as the in- structions of the War Department, was to defend the city and country at every hazard. It was conceded that nothing but martial law would enable him to perform that duty to the greatest advantage. If, then, his power was commensurate with his duty, and he was authorized to use the means essential to its performance, and to exercise the powers necessary tD remove all obstructions to its accomplishment, he had a right to declare martial law when it was ascertained and acknowl- edged that this was absolutely necessary to enable him to de- fend the city and country. 478. This principle has been recognized and acted upon in all civilized nations, and is familiar to those who are conversant with military history. The principle is that the general may go so far and no farther than is absolutely necessary to the defence of the city or district committed to his protection. To this extent General Jackson was justified; if he went beyond it, the law was against him. But in point of fact, he did not supersede the laws, nor molest the proceedings of the civil tri- bunals any farther than they were calculated to obstruct the execution of his plans for the defence of the city. In all other respects the laws prevailed and were administered as in times of peace, until the legislature of the State of Louisiana passed an act suspending them until the month of May in consequence of impending danger that threatened the city. 479. There are exigencies in the history of nations as well as individuals when necessity becomes the paramount law to which all other considerations must yield. It is that first great law of nature which authorizes a man to defend his life, his person, his wife and children, at all hazards and by every means in his power. It is that law which enables courts to defend 448 MILITAEY GOVERNMENT AND MAETIAL LAW. themselves and punish contempts. It was this same law which authorized the general to defend New Orleans by every means in his power which would accomplish the end. In such a crisis necessity confers the authority and defines its limits. If it be- come necessary to blow up a fort, it is light to do it; if it be necessary to sink a vessel,' it is right to do it; if it be necessary to burn a city, it is right to burn it. 480. The ground upon which it is held that this extraor- dinary power is inherent and original in all courts and deliber- ative bodies, is that it is necessary to enable them to perform their duties imposed upon them by the Constitution and the laws. It is said that the divine and inalienable right of self- defence applies to courts and legislatures, to communities and States and nations, as well as to individuals. The power, it is said, is co-extensive with the duty; and by virtue of this principle each of these bodies is authorized to use not only the means essential to the performance of the duty, but also to exercise the powers necessary to remove all obstructions to the discharge of that duty. 1 481. If it be true that this principle of an overpowering necessity is of universal applicability, as here claimed — indeed, as universally conceded, even amidst the calm of peaceful surroundings, as when courts and legislatures resort to it to vindicate their dignity, with how much greater reason can it be invoked during the turbulent scenes of war, actual or threatened, when deliberation is out of the question, and for the commander to hesitate is to endanger all. Tested, there- fore, by the standard of acknowledged maxims of government, the wisdom and legality of the course pursued in declaring martial law upon this occasion is fully sustained. 482. To add to the embarrassment of the general's situa- tion, the inhabitants of lyouisiana were not all thoroughly loyal. The territory but ten years before had passed by treaty from foreign domination. A large proportion of the people spoke a foreign language. They but indifferently responded to those I Debate, first session, 28th Congress (1843). NATURE OP NECESSITY JUSTIFYING MARTIAL LAW. 449 sentiments of patriotism which should unite the community as one man to repel invasion at whatever cost of life and prop- erty. Evidence of this is found in the fact that on the 8tli, 12 th, and 30th of August and 30th of September, 18 14, the governor of lyouisiana had expiessed his deep chagiin at find- ing a large numbei of the people inimical to the American cause and favorable to the enemy, and agreeing with the gen- eral that the country was filled with spies and traitors. It would seem, then, that the declaration and strict enforcement of martial law was, under the then exist ng circumstances, a patriotic duty — a duty performed without hesitat'on by the distinguished soldier who fortunately there commanded. And his vigilance, his energetic and successful efforts to repel an insolent invader, have caused his name to be honored among those who have done most to illustrate the constancy and valor of the nation's arms. 483. Under the influence of the common law, which was centuries in developing and coming to full fruition, there grew up a people who have gone forth to plant the seeds of civil liberty in the remotest corners of the earth. Yet no sooner did they venture beyond their original island home than it became apparent that whilst admirably adapted to an insular community in times of peace, the common law, because of the rigidity of its rules, was but illy suited to the variable circum- stances attendant upon a strife for existence waged between the nation on one side and those who would destroy it on the other. 484. In England the legislature lent its aid. By Statute i, George I. — the Riot Act — it was made a capital felony for persons riotously assembled to the number of twelve or more so to continue for one hour after proclamation by a justice of the peace requiring them to disperse. This raised what before was a mere misdemeanor to the grade of felony, punishable by death. The common law, as we have seen, stepped in here, and by requiring all lookers-on to suppress felonies actually being perpetrated, even killing the felons if they could not be 29— 450 MILITAKT aOVEENMENT AND MARTIAL LAW. arrested, , greatly strengthened the hands of authority. In theory, at least, all that was needed now was concert of action between the officers of the law and the well-ordered portion of the community. 485. But it is practically very difficult to secure such con- cert of action. Civil officers are slow to assume unusual re- sponsibility even in times of riot or other great disturbances. This causes delay, of which the evil-disposed ever will take advantage. Hesitancy on the part of those in authority at such times is fraught with peril. Promptly to unite the law-abiding elements to put down numerous malcontents is well-nigh impossible. Even after the Riot Act was read, a necessity was found still to exist for using a force susceptible of prompt and more effective action. This is the military. Kept back as a last resort, it will, if dis- creetly used, restore quiet and give that security to society which the civil law cannot. That is its function on such oc- casions. The experience of nations has shown that this con- fidence in the soldier is not in danger of being abused, so long as the government itself is administered for the public good. Martial law when thus exercised is based upon the necessities of social organization. 486. An instructive illustration of this was afforded in the early part of 1861 by the United States military authorities in Baltimore, Maryland. That State had never attempted for- mally to secede from the Union. Yet there, as in some other doubtful States on the border-line of rebellion, disloyalty was scarcely disguised, and if treason did not manifest itself in overt acts, the spirit of disaffection was widespread. It became necessary for the safety of the national capital to extinguish with an energetic hand these smouldering embers of rebellion, which, blazing forth, led to the attack upon the Sixth Massa- chusetts Volunteers on the 19th of April while they were has- tening to the relief of Washington City. 1 On June 24, 1861, Lieutenant-General Scott directed the general commanding I. R. R. S.. I., Vol. 2, pp. 7-21. NATURE OF NECESSITY JUSTIFTING MAETlAL LAW. 45 1 the Annapolis Department, in which Baltimore was situated, to arrest the Baltimore marshal of police and the police board, i The department commander took virtual military control of the city. In a proclamation he let it be known that he did not intend to interfere with, but support the civil government. The fact was put prominently forward, however, that combin- ations to give aid and comfort to the enemy existed not only in the city of Baltimore, but elsewhere in the department, and that the arrested officials were cognizant of these combinations and sympathized with their objects. The people were in- formed that in so far as the paramount object of preserving the Union permitted-, the civil authorities would be upheld in the performance of their functions. This in fact was placing the city under martial law. No use of words could change the state of affairs actually existing. The civil laws, enforced through their appropriate officers, operated no farther than the military commander decreed that they should. The civil was wholly subordinated to the mili- tary power. Martial law could scarcely go farther than that. It is true that no proclamation had brought it into existence; it existed in fact despite official protestations to the contrary. 487. Yet courts of justice sat undisturbed by mob of other physical violence; the police regularly patrolled their beats; civil officers of all grades performed the duties assigned in the conduct of municipal affairs. Upon the surface all seemed smooth. 488. It was from the unseen yet universally felt under- current of sympathy with those who were openly seeking to destroy the Union that danger was to be apprehended. It was pre-eminently the situation described by the minority in Ex parte Milligan when they observed that "in times of rebellion and civil war it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies"; and further, that "these courts might be open and undisturbed in the execution of their func- I. R. R. S., I., Vol. 2, pp. 138-156. 452 MILITARY GOVERNMENT AND MARTIAL LAW. tioiis, and yet wholly incompetent to avert threatened danger, or to punish with adequate promptitude and certainty the guilty conspirators." 489. What loyal citizen could wish that the military had, under the circumstances, done less than assume the reins of gov- ernment at Baltimore? There and then was demonstrated the important fact that the power of the Government was competent to strike down covert as well as open treason. The time had come when the contrary doctrine was to be effectually refuted, and so far as the semi-disloyal inhabitants of Baltimore were concerned, the first step in this demonstration to the world that the nation possessed self-sustaining power was the virtual establishment there of martial law by the Union authorities. In no other way than by such decisive measures could the im- portant State of Maryland have been kept in the ranks of loyal States. 490. This condition of affairs led to the delivering by Chief- Justice Taney of the celebrated opinion in the Merryman case, 1 in which the acts of the Executive Department in the premises were pronounced usurpations, and the President was called upon to restore the civil tribunals in Baltimore and vicinity to undisturbed control. But that opinion neither then nor since made any impression upon the great mass of loyal people, nor did it cause the patriotic President for one moment to doubt the legality or necessity of the measures taken to sustain the dignity and authority of the general government against the plots of those who in secret gave aid and comfort to rebellion. The weak point in the chief -justice's opinion lay in the fact that it ignored, because possibly he could not see or understand the actual state of affairs, the but illy concealed treasonable sym- pathies which rendered the local civil authorities inimical to the Union cause and incapable of joining in measures for its support. The chief -justice argued from the premise that mat- ters of local government were as they seemed. The Executive Department of the Government knew otherwise. They^ knew I. National Intelhgencer, May 2g-2o and ]uae 4, 1861. NATURE OF NECESSITY JUSTIFYING MARTIAL LAW. 453 what the chief -justice did not know, and what, due to sectional prejudice, he possibly would not have acknowledged had he known the facts, that there existed in the then condition of the municipal government at Baltimore a danger as formidable to the national cause as was presented by the enemy in the field. And the former was more difficult to deal with ; it acted under cover, and had to be sought out in the dark. 491. Had the President hesitated to act as he did, making the military the dominant power and using the local government only as a matter of convenience, he would have been charge- able with neglect of duty at the moment of supreme impor- tance to the cause of the Union. Such an error would never have been recovered from. Everything depended upon de- cision, promptness, and effective action. Fortunately for re- publican institutions, those at the head of national affairs were in no manner recreant to the great trust reposed in them by the people. When, to save the Republic, it became necessary to institute martial law, they did it; and posterity, enjoying the blessings of the government thus transmitted, cherishes with grateful remembrance the names and services of those whose energy, ability, and devotion to duty thus rescued the Union from threatened destruction. 492. Nor, during the progress of the Civil War, did it al- wajrs follow that to justify martial law it was necessary that the people sympathize with and covertly aid the enemy. That was only one cause giving rise to the martial-law necessity. Take the case of Kentucky. A majority of her people, includ- ing many of the wealthier classes, were loyal. It certainly was not the policy of the national authorities to bear heavily upon those who, amidst the most trying surroundings, then upheld the Union cause. On the contrary, that policy was to favor them in every practical way. Kentucky was, however, a bor- der State. Her territory at first was overrun, her cities occu- pied, her substance appropriated by rebel hordes; and until the end of the war it ever was a fond hope of the Confederacy to plant the triumphant flag of rebellion permanently upon 454 MILITARY GOVBENMENJ- AND MAETIAl LAW. her soil. Several times its armies temporarily occupied the fairest portions of the State; only, however, to be driven back discomfited. The effect of all this could not but be to disar- range and weaken the administration of civil government if resort were had only to its regularly constituted organs. Rebel emissaries were harbored by friends within the State. The latter did not hesitate to give aid and comfort to the rebels when this could be done without danger of discovery and punishment. Districts dominated by the Union arms were made hatching-grounds for traitorous schemes devised and carried into execution by a small but influential minority of the people, who lacked either the inclination or courage openly to join the ranks of the enemy. 493. The Federal Government was embarrassed by this state of things in its efforts to pursue toward the people and authorities of the State a consistent or even a just course. Re- garding the parasites who secretly clung to the enemy while openly professing attachment to the Union, there was no trouble except to find them out. The disposition was to treat them with the rigor their duplicity merited. This, however, was by no means easy of accomplishment. The bad were so inextricably mixed up with the good in the community that it was found impossible to strike the former without injuring the latter, who already had sufficient burdens to bear. The former deserved to have the strong hand of military authority laid on unsparingly; the latter merited every consideration consistent with public safety and the successful prosecution of the war in that part of the theater of operations. A rigid enforcement of the powers of martial law could alone mete out justice to the former; to the latter, except as a last and neces- sary resort, it would be oppression. 494. This unsettled condition of affairs continued for three years. An attempt was made to steer between military rule and civil administration. The policy failed of any good purpose except to prove its utter insufficiency either to punish enemies or reward friends. Finally, the President, NATUBB OP NECESSITY JUSTIFYING MARTIAL LAW. 455 despairing of securing the supremacy of the national authority and frustrating the secret combinations of the enemy by milder methods, issued his proclamation placing the State under martial law. And how much soever the measure may have been condemned by some, loyal citizens approved of it as nec- essary, and it was duly carried into effect. Nor will it be forgotten that this was the same President who labored so unselfishly, finally sealing with his life his devotion to the cause, and so successfully, that the integrity of the Union might be preserved. 495. One important question arising out of the opinion of the Supreme Court in the Milligan case is, "When are the courts to be considered open and in the proper and unobstructed ex- ercise of their jurisdiction?" Are they to be so considered when, murders having been committed or property illegally taken, thus rendering security through the civil laws a mere delusion, juries, influenced either by terror of or sympathy with the malcontents, fail to convict in face of the most conclusive evidence? What, so far as the ends of government are con- cerned, does it matter whether judges are driven off by physical force, or their efforts are paralyzed by wide-spread disaffection • to the laws, which, while not making itself openly manifest, yet renders the administration of justice through the courts a delusion and a reproach? 496. This, in great degree, was the condition of affairs exist- ing in Kentucky at the time the President placed the State un- der martial law. It was a grave and a necessary measure. The civil authorises of the State, including the judiciary, could not or would not effectually frustrate the treasonable designs of the enemy, countenanced as they were by many of her own citizens. The paramount duty devolved upon the Executive Department to see that the laws were faithfully executed, the authority of the national ( yovernment upheld at any cost. The necessity for subjecting loyal citizens equally with disloyal to the summary rule of martial law was deeply deplored. None regretted this necessity more than the President. But the time had arrived 456 MILITARY GOVERNMENT AND MARTIAL LAW. when sentiment gave way to the inexorable facts of the situa- tion. The Executive acted with becoming promptness and decision. And surely it seems singularly unfitting that those who then were saved from the secret plottings of the rebels,, or who have received the benefits of that Union which these energetic measures in no slight degree contributed to per- petuate, should find fault with officers who reluctantly were compelled to adopt them. We have here the case of justify- ing and excusing peril mentioned by the minoiity opinion in Ex parte Milligan, when, due to insurrection or civil war within districts where ordinary law no longer, adequately secures public safety and private rights, the President has authority to- leclare martial law. CHAPTER XXII. Federal Authority to Institute Martial Law. 497. The political organization of the United States eir- ^races two distinct sovereignties, that of the general Govern- ment and that of the States, each of which within its appropri- -ate sphere of action is supreme. Martial law may be invoked to defend each from danger, either external or internal. 498. The Constitution provides that Congress shall have power to make rules for the government and regulation of the ^and and naval forces ; to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion. 1 Within a few years after the government was organized it became necessary to make use of this consti- tutional power. An insurrection broke out in the western part of Pennsylvania against the laws of the United States. President Washington at once marched a large militia force into the disturbed district. It was a case of necessity. In those early days the organized militia was, theoretically, de- pended upon to do the military work of the country, except to fight Indians, and to this end a law was passed empowering the President to call out the militia to repel invasion, 2 suppress either insurrections or combinations against United States laws. In the first instance he moved upon his own initiative; in the second, upon that of the governor or legislature; in the third, upon notification of a United States associate justice or judge. In the Whisky Rebellion in Pennsylvania in 1794 - the governor refused to assist the judge when called upon; but President Washington himself took the field at the head of the militia from several States. The rebellion collapsed at rumor of this show of force. Another so-called rebellion occurred in the eastern part of the same State in 1 799, but, in 1. Art. I, Sec. 8. 2. Act May 2, 1792 4'57 458 MILITARY GOVERNMENT AND MARTIAL LAW. presence of a few troops, evaporated. In both these instances regular troops equally with militia were put in motion, although at this time there was no statute which specifically authorized regulars to be so used to vindicate the laws as was the case with the militia. 1 The Federal party, of which President Washing- ton and Mr. Hamilton were exponents, regarded only the fact that the constitutional duty was imposed on the Executive to see that the laws were faithfully executed, and they unhesi- tatingly made use of any coercive force within reach to per- for.n the task. The theory that the militia was all-sufficient for all purposes, except against the Indians, was waning under the Federalist administration, but it was revived with greater vigor than ever under the Republican precepts of Mr. Jefferson, who sustained and gave it new strength until the so-called Burr conspiracy and the unreliability of the southwestern militia making the Army, in those days of secret machinations the only force that really could be depended upon, caused the act of March 3, 1807, to be passed, authorizing the regular troops, equally with the militia, to be used to suppress insur- rections and enforce the laws. 2 Thus Mr. Jefferson, after having left nothing undone to asperse the regular establish- ment and show his dislike for it, while at the same time he gave an unsound and fictitious importance to the militia, was compelled to reverse the judgment of a lifetime, and to save his administration from disgrace, when drawing to a close, called to his assistance that army which he ever had contemned, although this plainly involved the disparagement of that in- sufficient militia, the value of whose services he had lauded beyond the bounds either of reason or experience. 499. It was in pursuance of these laws, and the implied powers vested in him in order that he might carry out the constitutional injunction to see that the laws are faith- fully executed, that President I^incoln took, immediately after his first inauguration, the initiatory steps to put down the I. Act February 28, 1795. 2. R. S., 5298, 1642; Hildreth, Vol. 5, ri. 627. FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 459 rebellion in 1 861.1 The occasion, however, demanded more heroic legislative measures ; consequently the act of July 29, 1 86 1, placed at his disposal, whenever there were unlawful obstructions, combinations or assemblages of persons, or re beUion against the authority of the United States, rendering it impracticable in his judgment to enforce the Federal laws by ordinary judicial proceedings, to employ the whole armed force of the nation, regular and militia, to suppress such re- bellion. 2 The act of 1795 authorized calling out the militia of States nearest the disturbance. That of 1861 took them all, yet even this did not authorize the employment of the military power in all cases of possible necessity. Accordingly, by act approved April 20, 187 1, it was provided that whenever in- surrection, domestic violence, unlawful combinations, or con- spiracies in any State so obstructs or hinders the Federal laws as to deprive any portion or class of the people of the rights, privileges, immunities, or protection named in the Constitu- tion or secured by those laws, and the State authorities either cannot or will not protect them therein, the whole m.ilitary force of the nation be placed at the President's disposal to use at discretion for this purpose, first warning the insurgents by proclamation to disperses There are numerous other provisions of the Federal laws authorizing the employment of the military for national purposes, such as to enforce the neu- trality* and quarantine laws, 5 to execute United States war- rants or other lawful process in certain cases, ^ for many pur- poses in the Indian country, 7 and in various other ways. 500. N'ow, except in so far as the act of February 28, 1795, referred to insurrections against State laws, all these authoriza- tions are for the maintenance of Federal supremacy. They provide for defending the national Government either from a foreign or domestic foe, or maintaining the supremacy of the Federal laws or (he dignity of the United States. And they I. 2 Black, p. 666. 2. Chap. 25 (R. S., 5298). 3. Chap. 22 (R. S., 5299). 4. R. S., 52S7-S8. 5. R. S., +792. 6. R S., 198+. 7. R. S., 2052, 2062, 2118, 2147, 2150. 460 MILITARY GOVERNMENT AND MARTIAL LAW. seem, taken all together, equal to any probable emergency. Some of the statutes cited relate also to State affairs; but that branch is not at present regarded; reference is here confined to the Federal aspect of the law. 501. When the President proceeds to use the military power of the nation for the objects mentioned, he does it independent- ly of State authorities. When necessary, he moves the troops to the threatened district. It may be against the protests of the State authorities. He uses the requisite force to sustain the law, suppress rebellion, or to repel invasion. The law intrusts to his judgment the determination of the question how much force the occasion demands. He is expected to meet the crisis. He takes his measures accordingly, and if the condition of affairs be such as heretofore in this work has been pointed out as justifying the enforcement of martial law, it will be his duty to enforce it. 1 502. So, depending upon the circumstances of each case, a subordinate military commander, entrusted with great respon- sibility, and whose discretionary powers are equal to the duty imposed upon him, might be authorized to enforce that law. "It will be borne in mind," said the Supreme Court in Ex parte Milligan, "that this is not a question of the power to proclaim martial law where war exists in the community and the civil authorities are overthrown. * * It follows from what has been said on this subject, that there are occasions when martial rule can be properly applied. If in foreign invasion or civil ' war the courts are actually closed, and it is impossible to ad- minister criminal justice according to law, then on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authorities thus overthrown to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial law until the laws can have their free, course." 2 The whole subject of martial law when thus instituted by Fed- I. - Howard, p. i ; 4 Wallace, p. 2; 21 Indiana, p. 370. 2. 4Wal- tece, p. I et seq FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 461 eral executive authority must be determined in all its details by the President and his subordinates. The troops are there to repel invasion or compel obedience to the supreme law of the land. If the confidence be abused, which is altogether im- probable, relief can only come through repeal of the law author- izing the employment of the military in the manner indicated, the power of impeachment, or the responsibility of subordi- nates before the civil courts, i 503. In his dissenting opinion in Luther v. Borden, Justice Woodbury conceded that a state of war may exist, both foreign and domestic, in the great perils of which it is competent, under its rights and on principles of international law, for a command- ing officer of troops, under the controlling government, to ex- tend certain rights of war not only over his camp, but its en- virons and the near field of his military operations. 2 It will be remembered that the Supreme Court of the United States, Justice Woodbury alone dissenting, fully sustained the State government in establishing martial law in Rhode Island, out of which the case cited arose. 504. The decision was a signal triumph for the friends of good government. Attention was called in it to the fact that the President is given power to determine which is the legis- lature and who the governor in case of internal State conflict. 3 If it be said that this power is dangerous to liberty and may be abused, the reply is that all power may be abused if placed in unworthy hands. But it would be difficult to point out where else the power would be moie safe and at the same time equally effectual. When citizens of the same State are in arms against each other, the constituted authorities unable to execute the laws, the interposition of the Federal Government must be prompt or it will be of little value. The ordinary course of proceedings in courts of justice are utterly unfit for the crisis. 4 505. In relation to the act of the Rhode Island Legislature declaring martial law, it was not necessary, the Supreme Court I Act March 3, 1875, 25 Statutes at Large, p 433. 2. 7 Howard, p. 41 3. Act of February 28, 1795, Chap. 36. 4. 7 Howard, p. 44. 462 MILITARY GOVERNMENT AND MARTIAL LAW. remarked, to inquire to what extent or under what circum- stances the power could be exercised by a State. Unquestion- ably a military government, established as the permanent government of a State, would not be a republican government, and it would be the duty of the Congress to overthrow it. But the law of Rhode Island evidently contemplated no such govern- ment. It was intended merely to meet the peril wrought by armed resistance to the existing government. It was so under- stood and construed by the State officials. In this condition of thing^s, the officers engaged in the military service might law- fully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and they might order a house to be entered and searched if there were reasonable grounds for supposing he might be there concealed. 506. In the argument of the case before the court the light of the State to declare martial law had been denied on the ground of the supposed danger to free government which was necessa- rily involvedin such a principle. To support this view the prac- tices of the crown prior to the Petition of Right were cited. But the court remarked that such citations were wholly irrele- vant, if, as was evidently true, the inference was sought to be drawn that because in the instances cited from early English his- tory an arbitrary power had been abused to the injury of the subject; therefore the exercise of similar authority by the su- preme power in the State under linrtations which insured the maintenance of governmental and municipal institutions and the just rights of the people was unconstitutional. 507. An important feature of this decision was the state- ment that the existing condition of affairs at the time martial law was declared constituted a state of war. When that point IS legally determined, or legally can be inferred, the B-xecutive Department of the government may at once proceed t) adopt the necessary measures to meet the emergency. Its deter- mination, however, is not always an easy matter. "If war be actually levied," said the Supreme Court in another case, "that FEDEKAL AUTHORITY TO INSTITUTE MAKTIAL LAW. 463 is, if a body of men be actually assembled for the purposes of effecting by force a treasonable purpose, all those who perform any part, however minute, or however 'emote from the scene of action, and who are actually leagued in the general conspiracy, are to be consideied as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levyirig of war." i Again, levying war is said to be direct if it be immediately against the government with intent to overthrow it; constructive, if it be levied for the purpose of producing changes of a public and general nature by an armed force. In the Rhode Island case the war was direct; but had it been otherwise — ^had it been simply for the purpose by armed force of producing some general change in government, or to ac- complish some general object without governmental sanction, which, if desirable, it was the duty and province of government alone to bring about — it would have been constructively war, and, under the ruling of the Supreme Court, equally justifying, if the authorities deemed it necessary, the proclamation of mar- tial law. 2 This principle, as will hereafter more fully appear, has had recent application in the State of Idaho. 508. The militia of Rhode Island were put in the field with- out any thought of their being subordinate in any degree to the civil power, or hint that concerted action by the two juris- dictions — military and civil — was desirable. Indeed, it is a noticeable fact that neither in Luther v. Borden nor in Ex parte Milligan did the Supreme Court suggest that it was the duty of the military, in moments of peril to society or government, either in conjunction with or in subordination to the civil power. Evidently in the opinion of the court, when the time for martial law had arrived, all thought of the military nec- essarily acting a subordinate part was out of the question. Nor, as some seem to think, would a mere suspension of the privilege of the writ of habeas corpus have amounted to mar- tial law. The suspension would have been far short of that I. Ex parte BoUman, 4 Cranch, p. 126; U. S. v. Burr, ibid., p. 469. 2. U. S. v. Mitchell, 2 Ball., p. 348; U. S. v. Vigols, 2 Dall., p. 246. 464 MILITARY GOVERNMENT AND MARTIAL LAW. law. The former, indeed, is embraced in the latter, but does not constitute the whole. The suspension authorizes deten- tion in prison without reason shown ; while martial law means not only this, but may mean arrest without warrant, break- ing into houses, trials by courts -military of civil offenders, and acting generally under military orders to the exclusion of civil precepts. 509. The case of Commonwealth v. Blodgett illustrates an- other phase of martial law growing out of the Rhode Island rebellion. 1 The insurgents, being dispersed, fled beyond the limits of the {state. Blodgett, a militia officer, lawfully engaged under competent authority, pursued some of the fleeing rebels into an adjoining State, arrested and carried them back to Rhode Island for trial. This was plainly an armed invasion of friendly territory ; the act was repudiated by the Rhode Island authorities ; the officer on demand sent back to Massachusetts for trial. Yet the offence was known to be a strictly technical one, without any intention to offend the majesty of Massachu- setts law; it was not intended to derogate from the competency and sufficiency of the jurisdiction of the authority of this State within her own limits, but simply an exhibition of too great zeal in serving the government of Rhode Island. 510. In delivering his opinion in this case. Chief -Justice Shaw admitted that there might be circumstances which would render justifiable the acts of the defendants. If there existed a necessity for the defence and protection of the lives and prop- erty of the citizens of Rhode Island, that Blodgett and his men should do the acts complained of in the indictment ; or if there was probable cause at the time to suppose the existence of such a necessity, the acts would be justifiable. Whether such necessity or probable cause of necessity existed, the jury were to determine from all the facts in evidence. 511. It was during the Civil War and the reconstruction period immediately following that martial law received most attention in this country. Both parties, and equally perhaps, I. 10 Metcalf (Mass.), p. 56. FEDEEAL AUTHORITY TO INSTlTUIE MARTIAL LAW. 465 found it necessary to resort to this efficient measure. In some instances the Executive Department acted independently; at other times, pursuant to laws passed expressly to meet the occasion; while in others, the legislature, by giving express sanction to what the Executive Department had done in this behalf, adopted the measures taken as their own. i 512. So early as August 8, 1861, General Canby, command- ing the United States forces in the territory of New Mexico, which the rebels had invaded, found it necessary to guard against treasonable designs, correspondence, and aiders and abettors of the enemy by suspending the privilege of the writ of habeas corpus. 2 It is true that the military were in this instance in- structed to unite with the civil authorities in maintaining order, while those guilty of treason and misprision of treason were to be tried by civil courts. But this was confessedly only a matter of convenience to the military authorities, who were supreme. The power here assumed, however, was exercised with as much attention to the civil rights of the citizen as a proper regard for the interests of the Federal Government would admit. Care was taken to guard against abuse of the unusual authority here assumed. No one was arrested except upon probable cause of suspicion of being dangerous to the public safety. Immediately upon arrest an examination was made, and if found innocent, the accused set free. 513. In the case arising in Colorado, in 1904, during the suppression of an insurrection declared by the governor to exist in a certain district, one Mayer, arrested for being a leader in the unlawful acts, applied to the Supreme Court of the State ^ by habeas corpus proceedings, for release. This was denied by that court. In the course of its df cision the court remarked : "Laws must be given a reasonable construction, which, so far as possible, will enable the end thereby sought to be attained. So with the Constitution. It must ^>e given that construction of I. G. O., A. G. O., 104, 1862; ibid., 114, 1862; ibid., 73, 1863; Act March 3, 1863; Act May 11, 1866; Proclamation, Sept. 15, 1863; ibid., July 5, 1864. 2. R R. S., I., Vol. 4, p. 62. 30- 466 MILITARY GOVERNMENT AND MARTIAL LAW. which it is susceptible, which will tend to maintain and pre- serve the government of which it is the foundation and protect the citizens of the State in the enjoyment of their inalienable rights. In suppressing an insurrection it has been many times determined that the military may resort to extreme force as against armed and riotous resistance, even to the extent of tak- ing the life of the rioters. "Without such authority the presence of the military in a district under the control of the insurrectionists would be a mere idle parade, unable to accomplish anything in the way of restoring order or suppressing riotous conduct. "If, then, the military mayiesort to the extreme of taking human life in order to suppress insurrection, it is impossible to imagine upon what hypothesis it can be successfully claimed that the milder means of seizing the persons of those partic- ipating in the insurrection or aiding and abetting it may not be resorted to." 514. It has been mentioned that in the adjacent Territory of Arizona not only was it found necessary for the military to assume control, as in New Mexico, but a government complete in all its parts was set up there, first by the rebel and continued afterwards by the Union commander. 1 The isolation of the two Territories mentioned, the time required to communicate with them the diificulties and dangers which beset all attempts at such communications had the' effect as completely to render them distant colonies as in the British Empire are the West India possessions. The military authorities present were com- pelled of necessity to use their best judgment as to what was proper to maintain national control. The choice of measures rested with the commander. In him was vested a discretion as to the means to be adopted to preserve order, protect society, and render life and property secure. This was to be exercised by him upon the sound principle that where discretionary power is lodged in a public officer he is the sole judge of the justifying I. Ante, Sec. 66. FEDERAL AUTHOEITT TO INSTITUTE MARTIAL LAW. 467 facts, and can only be held accountable civilly for corrupt and criminal abuse of authority. 515. The condition of affairs in Missouri, previously ad- verted to, early called for the use by the Union authorities of measures of repression, i Although, as they never officially had been declared by the President to be in a state of insur- rection, her people technically were considered to be loyal ; but the real facts, as well known, were far otherwise. A large portion of the wealthy and influential classes openly or secretly sympathized with the cause of secession. Thousands of the bravest and most reckless of the male population were enrolled in the armies of the enemy or organized into partisan bands terrorizing the districts they infested. These could all be dealt with according to the laws of war. But the case was different with secret lebel sympathizeis, who covertly extended aid and comfort to the enemy. As a result, confidence was impaired, disloyalty became the boast of some who sought and were given the protection of the Government, while in some parts of the State midnight assassinations, rob- beries, and burnings carried on by marauders and guerillas converted extensive cultivated and productive districts into deserts. The administration of justice became such in name only; causes were determined not on their merits and the evidence, but according to the political bias of litigants and the loyalty or otherwise of judges and juries. If society were not to be permitted to dissolve and the State become the scene of inextricable confusion, the time had come for the Union military officers to act. Accordingly August 14, 1 861, General Fremont, commanding the Western Department., declared martial law in the city and county of St. Louis, and extended it on the 30th of the same month to the whole Statt . The object was explicitly stated to be to place in the hands of the military authorities the power to give instantaneous effect to existing laws, and to supply such deficiencies as the conditions of war demanded. It was not intended to suspend the civil tri- I R. R. S , I., Vol. 3, p. 442. 468 MILITARY GOVERNMENT AND MARTIAL LAW. bunals where the law could be administered by the regular- officers exercising their ordinary authority, i 516. General Fremont was relieved on the 2d, and GeneraL Halleck was appointed to the command of the department on the 9th, entering upon the duties on the i8th of November, 1861. This officer perfectly undei stood the legal aspects of the situ- ation and the relation which the military power in free gov- ernments should bear to the civil. On assuming command he found civil government within the limits of his department in a state bordering on dissolution. He saw that the necessity existed for exercising the inherent right of government to en- force martial law. He was aware that this law had been in- stituted by his predecessor, yet he found no written authority for this, which, in his judgment, could only emanate from the President. He at once informed the general- in- chief of these facts, and requested such written authority. 2 With evident- reluctance, and not without considerable delay, at a time when every day was big with important events, the requisite " writ- ten authority" was given by the President. 3 517. Here again we have evidence of the fallacy of the doctrine which would make the justification of martial law de- pend solely upon the fact whether civil courts are or are not in the unobstructed physical exercise of their jurisdiction. What impediments in the way of physical obstacles to courts sitting existed in St. Louis at this time? Sheiiffs might make theii re- turns, juries deliberate, judges expound the law. The obstacle to the due course of justice was not of a physical nature. It was of a more formidable character, and consisted in the secret machinations of friends of the enemy who, except they were held in check by the strong arm of military power, would have made of the municipal government an engine for the advance- ment of the rebel cause. To enforce martial law under such circumstances was a duty. I. R. R. S., I., Vol. 3, pp. 466-67. 2. R. R. S. I., Vol. 8, p, 817; ibid., p. 395. 3. R. R. S., I., Vol. 8, p. 401. FEDERAL AUTHOEITT TO INSTITUTE MARTIAL LAW. 469 518. This condition of society — calm exterior, while close "Underneath rebellion was fermenting — extended to many other parts of the State dominated by Union arms. Many of the male population who, during the daytime and in presence of the Federal troops, seemed to be peaceable, sought only thp cover of night to burn bridges and destroy railroads and tele- graphs. To indict and try them by civil courts, composed of their friends and associates, would have been useless, although no physical obstacle interposed, i Here again the military pow- er alone was equal to the occasion. Any one caught in these acts was ordered to be shot, and those arrested on suspicion of guilt were tried by military commissions. All who had guilty knowledge of the crimes mentioned, or kindred ones, were considered as accomplices and treated accordingly. At last towns and counties were made to pay for the destruction caused in this way, unless the presence of the enemy rendered, its prevention impossible. 519. As time passed the hope was entertained that the State might be relieved from this rule which necessity had forced upon it. This expectation, born of the bright promise of the hour, was doomed to disappointment. The State remained during the war the theatre of discord — ^political, civU, mili- tary — which rendered the cessation of martial law impracticable. 520. By March, 1863, the Union cauge in Missouri was endangered from a different direction. A bitter and uncom- promising spirit of faction had broken out among its friends. Two parties existed ; the one favored a radical, the other a con- ciliatory policy toward the enemy and their, abettors in the State. The rivalry between them knew no bounds. The com- mon cause seemed to be lost sight of in the local struggle for as- <;endency. The President was sorely perplexed by this dis- sension. Openly to espouse the cause of either party seemed injudicious, and accordingly a middle line was marked out, I. See remarks of U S. Supreme Court on this subject, In re Debs, 158 U. S. Reports, p. 565. 47° MILITARY GOVEENMBNT AND MARTIAL LAW. which, while pleasing neither, secured in a measure the support of both. 521. One of the most important questions that had to be dealt with in this connection was that of martial law. It was in pursuance of the plan now determined upon by the President that General Schofield, when he assumed command of the de- partment, issued precise instructions with regard to the en- forcement of that law throughout the State. These were con- cise and clear, and gave all concerned an understanding of their rights and duties in the premises. The supremacy of military authority was asserted; yet, where they were disposed efficiently to pursue their ordinary functions, civil courts and officers were encouraged to perform their duties as usual. It was pointed out that the mere dec- laration of martial law did not suspend the functions of civil government unless precisely so stated. The duty of all loyal civil officers was to execute State and municipal laws, as far as practicable, as though no troops were present. The duty of the military was declared to be to abstain from interference with civil officers, and to protect them, if need be, while in the dis- charge of their duties Resistance to or interference with them in the discharge of their legitimate functions by the military was declared to be a crime meriting severest punishment. It was announced that the mission of the army was the putting down rebellion, restoration of supremacy of civil law, the en- couragement and strengthening the authorities until they were able again to enforce the laws and maintain peace. The rigors of martial law, it was stated, would be relaxed as peace should be restored and these authorities regain their strength. It could, however, be abrogated only when it was no longer necessary. 522. These instructions regarded civil institutions with re- spect, even veneration. They came as near retaining munic- ipal supremacy as the circumstances of the times would permit. Nothing more reasonable could have been wished by the most zealous advocates of civil government. The military power FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 47 1 from necessity, not from choice, was supreme; yet the civil ju- dicature, where practicable, was left unimpaired, and where there was departure from this rule, those who assumed the responsibility were held strictly accountable. This sufficiently attested the good-will of the military towards the civil com- munity, wbich they were there to protect, not to oppress. 523. The sequel proved how the best-intentioned measures, based upon respect for law, and which, were that possible, should have brought the people to a realizing sense of then- duty as citizens and to the government which protected them, m3.y fail in moments of great so:ial disturbance to accom- plish their benign purpose. The instructions which established these rules for the exercise of martial law were issued July 7, 1863. Their effect was far fiom uniting even the loyal in the common cause. The people unfortunately did not realize the generosity of this policy. To such extent was opposition carried that newspaper articles appeared intended to excite mutiny a ning the soldiers, both national and State. To meet this new danger orders were issued two months later (September 17, 1853), rigidly enforcing martial law against all who within the department in any manner encouraged mutiny, insubordination, or disorderly conduct, or endeavored to create dissatisfaction among the troops. All persons who should either publish or publicly utter words calculated to excite insurrection or lawless acts among the people, and all who should publish falsehoods or misrepresentations of facts calculated to embarrass the exer- cise of military authority, were to be brought for theii offences before military con^missions for trial. 1 524. When courts of justice cannot properly exercise their jurisdiction, it is admitted on all hands that martial law may be invoked. But it by no means follows that the converse of the proposition is true, and that this law cannot be appealed to unless the civil judicature is forcibly deposed. Among many illustrations of this fact furnished by the Civil War the condi- tion of affairs in Kansas may be cited. The people of that I. R. R. S., I., Vol. 22, Part II., p. 546. 472 MILITAKT GOVERNMENT AND MARTIAL LAW. State were devotedly loyal. The armed forces of the enemy in few instances, and then for the briefest peiiods, touchedher soil. The border land, however, adjoining Missouri bad tor years been the theatie of lawless deeds. The outbreak of civil war furnished the excuse for long-engendered rancor to be given full vent by the people of each against their neighbors of the other State. Murders, stealings, burnings, robberies, and every crime which characterizes sectional strife converted fairest districts into scenes of desolation. Still, in Kansas particularly, the municipal authorities were in full exercise of their functions. They could not, however, give security to life and property. The agents of the law were frequently those who were most active in creating disorder and pursuing their purposes of avarice or revenge. It was under these cir- cumstances that the general commanding the Department of Kansas declared martial law throughout the State, i It was announced that it was not intended to interfere with the civil authorities in cases of ordinary nature with which they were co|mpetent to deal. It was intended to put down the crimes before mentioned as so prevalent along the border, with a strong hand and by summary process. For this purpose the trial of all prisoners charged with armed depredations against property or assaults upon life were to be conducted before military commissions, and interference of the civil authorities in such cases was prohibited. 525. The enforcement of martial law in Baltimore and vicinity early in i86r, with the causes that rendered it neces- sary, has been already adverted to. In June, r863, when the insturgents were actually within the boimdaries of the State, or in large numbers menacing its invasion, the military com- mander again, but this time in a formal manner, established martial law in Baltimore and those parts of the State which formed the scene of warlike operations. This avowedly was to meet an emergency, but as the proclamation was never recalled, martial rule disappeared simply by falling into disuse. 2 I. R. R. S., I., Vol. 8, p. 547. 2. Winthrop, Military Law, 2d edition,. Vol. 2, p. r287. FEDERAL ADTHOEITT TO INSTITUTE MARTIAL LAW. 473 The commanding general announced that the suspension of civil government should in no case extend beyond the neces- sities of the occasion. AU civil courts and functionaries con- tinued to discharge their duties as in times of peace, taking care not to interfere with the exercise of the military power, which was predominant. Citizens remained quietly at their homes pursuing their ordinary vocations, except when called upon for service by the military authorities. Seditious prac- tices which tended to eniourage the enemy were particularly denounced. The people and the civil magistracy in all its branches were given to understand that so far as the paramount duty of saving the country would admit of it, they were to be left undisturbed; yet that the military power was supreme; that the duty of all was loyally to uphold the Government against the common enemy, and that whatever degree of f irce became necessary for the military to put forth to sustain the national cause would be exercised. 526. The President, except in rare instances,! fuUy sanc- tioned the acts of military commanders in enforcing martial law during the Civil War, and indeed set them an example. It may be assumed without greatly erring that the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law are not widely different. 527. The War Department order of August 13, 1862, issued by the President's directions, can be looked upon in no other light than as an exercise of martial-law p:)wer.2 It was in- tended to prevent evasions of the draft, and, to this end, author- ized the arrest of those who, to avoid their duty to the c oun- try which had protected and nurtured them, were seeking t(j leave it in its hoiur of greatest need ; and as to them, it au- thorized the suspension of the privilege of the writ of habeas corpus. This order was speedily followed by the President's proclamation of September 24th, subjecting to martial law anywhere within the United States rebels and insurgents, I. Proclamation, May 19, 1862; R. R. S., I., Vol. 22, Part II., pp. 17, 41. 2. G. O. 104, A. G. b., 1862. 474 MILITARY GOVERNMENT AND MAETIAL LAW. their aiders and abettirs, and certain other disloyal persons or those guilty of disloyal practices, whom it was declared were not adequately restrained by the ordinary processes of law from embarrassing the Government and aiding the insur- rection, and all of whom were declared to be liable to trial and punishment by courts-martial or military commissions ; while, as to such enumerated classes of persons, so tried and sentenced to imprisonment, the privilege of the writ of habeas corpus was suspended.! Nor did the Executive stop here; but with regard to all persons who during the rebellion had been imprisoned in any fort, camp, arsenal, or othei place of confinement by military authority, the privilege of the writ was also suspended. 528. This proclamation carried the right of summary arrest, trial, and punishment to the extreme. If this authority lawfully could be exercised, there remained, in times of great national danger, little to add to the completeness of executive power. Unquestionably the President, whose untiring labors to preserve the Union have sanctified his memory in the affec- tion of the American people, deemed this assumption of power to be necessary. Nothing in his public acts evinces that he aspired to the exercise of unconstitutional power. But he ■came upon the scene when a powerful rebellion menaced the existence of the Union. Its suppression taxed every resource of the Government to the utmost. The so called Confederacy was a military despotism, in which every element of strength, mental, moral, physical, and all the resources of a vast and fertile territory, aided by assistance from abroad, were being directed to the establishment of a new independent govern- ment by disrupting the old. To overcome this it was necessary that the power of the nation should be put forth in a manner equally earnest. It was not a time for half-hearted efforts. If the measure were reasonable in itself, did not infringe too much upon the rights of the citizen, and added to the military strength of the nation, it was in general held to be justified. I. G. O. 141, A. G. O., 1862. FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 475 The rule was to derive from the measure every military ad- vantage possible, leaving the question of legality for after- consideration. 529. Whether or not the President rightfully exercised this authority became the subj ect of animated discussion . He never seems tc have doubted it. However, to quiet the angry waters of disputation, Congress, March 3, 1863, passed what might be iDoked upon as an enablmg act, aathoiizing the President to suspend the privilege of the wi it. This satisfied those wiiose only doubts were as to the right of the President to suspend the writ without legislative authorization. But it raised up another class of objectors who, conceding that Congress had plenary power in the premises, denied that they could delegate it to the President. Whether the President or the Congress ex- ercised the power, it was found equally impossible to meet the constitutional scruples of all. By the terms of the act men- tioned the suspension of the writ during the then existing re- bellion was, throughout the United States, made to depend upon the judgment of the President of the necessity of the measure ; and fui ther, whenever or wherever the privilege should be so suspended, no military or other officer was compelled, in answer to a writ of habeas corpiis, to return the body of any person or persons detained by him by the President's authority. The officer had only to make oath that he held the party under such authority to suspend further action on the part of the judge or court issuing the writ. 530. To give efficacy to the act of Congress, the President issued his proclamation of September 15, 1863. This was neces- sary to give warrant and protection to executive officers whose duty it became to enforce the law. The different classes of cases which, in the President's judgment, came within the pur- view of the act, were thereby announced. They included all cases where, by authority of the President, military, naval, and civil officers of the United States held persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, sailors, or seamen 476 MILITAET GOVEKNMENT AND MAETIAL LAW. enrolled, drafted, or mustered, or enlisted in, or belonging to' the land or naval forces of the United States, or generally of any oEEence against the military or naval service. 531. By War Department orders issued immediately after- wards, all military officers holding prisoners under the Presi- dent's authority as contemplated in the act, were directed, should writs of habeas corpus be served upon them in behalf of said prisoners, to make respectful return thereto, but without producing the body of the prisoner, and to resist to the utmost any attempt to take by force those held in custody; and in this respect no distinction was made between courts and judges, whether of State or Federal jurisdiction. 532. In the nature of things this period was signalized by many seemingly arbitrary acts of Federal executive officers. They were not confined by any means to arrests and possible trial and punishment of offenders in the manner just pointed out. Grave questions arose as to the legality of such acts even when directed by superior authority. It was not the policy of the Government to permit its officers — those who amidst dangers and difficulties had performed their duty to the best of their ability — to be vexed therefor by civil suits. 533. To protect them the act of May 1 1, 1866, one year after the war in effect closed, was passed, amending the act of Mar^h 3, 1863, before mentioned. The amendatory law provided that any search, seizure, arrest, or imprisonment made, or acts done or omitted to be done during the rebellion, by any officer or person imder and by virtue jf any order, written or verbal, general or special, issued by the President or Secretary of War. or by any military officer of the United States holding the com- mand of the department, district, or place within which the art was done or orpitted to be done, should be held to be within the purview of the act of March 3, 1 863. There were liable also to arise difficulties as to the evidence of authority xmder which officers had proceeded. To meet this it was provided that when the order was in writing it was sufficient if the original were produced or a certified copy thereof, or if sent by telegram, the FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 477 production of the latter was prima facie proof of authenticity) and if the original in either case could not be produced, then secondary evidence was admissible. 534. So far as the political department of the Government Could secure them, officers were thus amply protected against judicial persecution for acts honestly done in furtherance of the Union cause from the commencement of the rebellion down to the nth of May, 1866. This was eminently proper. It would have been singularly unjust to have abandoned to civil prose- cutioni officers who, acting under the orders of superiors, had, while war was flagrant, taken the most effective measures to sustain the national cause, yet which measures might not be susceptible of vindication under the law of peare. 535. It is true that courts have not always taken this view — a fact to be accounted for in great measure, perhaps, by the circumstance that the judicial determination of causes so arising took place after the war, when the disposition of all parties was to sink the animosities then engendered out of sight. By some courts and judges the occasion was considered a fitting one to indulge in abstractions regarding the rights of the citizen, which, however unsuited to the times from which the nation had just emerged, were not particularly harmful at a later and calmer period in its history. 536. This was not unreasonable. The great principles at stake during the war should never be lost sight of. They should never be comproiiised, abated, or belittled in one jot or tittle. But, this being kept in mind, those principles being guarded and preserved as part of the fundamental creed of our government, it serves no useful purpose to nurture the passions aroused during the Civil War. If, therefore, that which is sug- gested above were the judicial theory, there were many con- siderations to commend it to favor. Still it was easy to carry such speculations too far. It was easy to forget that times had not always been peaceful, and that executive officers whose acts were complained of had to take action under circumstances which placed deliberation out of the question. Decisions ren- 478 MILITARY GOVEKNMENT AND MAKTIAL LAW. deied after the war regarding the legality of measures taken by the political department during that eventful and critical period savor much of theorizing. It may be that had executive officers n it acted as they did, the courts would not have been able to sit. Without the measures they adopted, it mignt not have been possible to suppress the rebellion. There is some- thing incongruous in the spectacle of a judicial tribunal in- veighing against instrumentalities of coercion adopted by the department of the government which is responsible for the suppression of a rebellion, when to the use of these instru- mentalities the fact is to be attributed that the tribunal itself exists. 537. Meanwhile, as previously mentioned, the Piesident, by proclamation of July 5, 1 864, had established, and, by another proclamation of October 12, 1865, had revoked martial law in Kentucky. 1 Following this he, on December i, 1865, an- nulled and revoked the proclamation of September 15, 1863, suspending the writ of habeas corpus throughout the United States, except as to the insurrectionary States, to Kentucky, the District of Columbia, and the Territories of New Mexico and Arizona, which exception itself was annulled by the procla- mation of April 2, 1866, thus re-establishing in all portions of the United States the privilege of the writ of habeas corpus. 538. The District of Columbia, the seat of the national cap- ital, was fully guarded during the Civil War by the national forces. The retention of the city of Washington by the Fed- eral and the preventing its capture by the insurgent armies was a matter of the greatest importance. It was fortified and garrisoned sufficiently to prevent being taken by coup de main, while troops were kepc within ready call to defend it against more regular attacks. Such was the purely military situation. The military supervision of the city extended, however, far I. General Burnside had previously, G. O. 120, Department of Ohio, July 31,1863 (R. R. S., I., Vol. 23, Part II., p. 572), declared martial law in Kentucky for the same reasons essentially given by the President in his proclamation of 1864. FEDERAL AUTHORITY TO INSTITUTE MARTIAL LAW. 479 beyond this. There were many interests of national import- ance to be guarded at the capital. Besides being in a peculiarly exposed position, as regards liability of attack, it was in all part'culars the center of Federal governmental control. All the great departments were there located, and all had to be pro- tected. From there the affairs of the nation were regulated. But aside from this, there were many matters to be looked after in the city which, while ordinarily within the purview of local government, became, under the conditions surrounding the capital, of national moment. There foreign representatives lived, whom, at that time, it was particularly desirable to guard from the semblance of molestation; there were the public buildings, ofi&ces, and records of the general Government, destruction of which would be an irreparable loss ; there, also, emissaries of the enemy, many of whom lived in the city, were plotting for his advantage. To aid the local civil authorities in guarding public interests springing out of these and other kindred matters, a provost- marshal's staff, assisted by a military police, was organized soon after the war began, one of whose important duties it was care- fully to guard political piisoners gathered from all parts of the country, and who, either because they had given aid and com- fort to the enemy, or were suspected of it, had become sub- jects for restraint. In March, 1862, the provost-marshal of the Army of the Potomac was relieved of the supervision of these duties in the city of Washington by a military governor, who was assisted by a proper corps of subordinates, including his own provosts. 1 This military governorship over the District of Columbia continued until the close of the war. 539. The various proclamations suspending the privilege of the writ of habeas corpus in certain enumerated cases hereto- fore cited were as applicable in the Di trict of Columbia as else- where in the United States. Such suspension, however, in the instances specified did not operate necessarily to institute mar- I. G. O. 25, A. G. O., March 15, 1862; S. O. 353, par. 20, A. G. O., November ig, 1862; S. O. 449, par. 38, A. G. O., December 16, 1864. 48o MILITAET GOVERNMENT AND MAETIAL LAW. tial law, which, in the proper acceptation of the term, was not at any time fully established over the District. It is true that in many respects the city of Washington had the appearance of being under martial law. Troops were to be found in all parts of the District. The police of the city were under the orders of the military governor, as was also the fire department organized into a brigade for better military control. The civil magistracy of the District exercised their vocations as usual. Civil officers were chosen, they entered upon or sur- rendered their duties as in times of peace. To this extent the military, instead of supplanting the civil authorities, rendered it possible for the latter to exercise their functions. Without the former the latter would have been powerless to piotect and render secure either life or property. Yet in doing this the military did not act in subordination to the civil power. It strengthened the latter, but in its own way. The principle upon which the laws were administered and order pieseived throughout the Distiict at this time appeared to be this: as to ordinary matters of municipal cognizance, it was the duty and purpose of the military to sustain the civil authorities, unless, indeed, such a course were prejudicial to the military interests of the country, which were treated as of first importance; while, as to other matters, of greater or less military consequence and which existed solely because the war was being waged, the military alone had control. The latter branch of the sub- ject was perhaps best illustrated by the hold the military re- tained of jmisdiction of military offences, without regard to the civil aspect of the case, as in the trial, conviction, and exe- cution of the conspirators against the lives of the President and members of the cabinet in 1865, although at the time the war was over, and civil courts were open for the trial of causes properly presented. CHAPTER XXIII. Congressional Martial Law. 540. In treating of the exercise of martial law under Federal authority, the action of Congress in this field must not be omitted. The subject has been adverted to in the introduction to this work, where the constitutional question thence arising has been suggested and briefly considered.' 541. The United States Supreme Court sustained the le- gality of martial law instituted by act of State legislature.^ But State legislatures are not singular in this exercise of power. We have witnessed the spectacle of the national legislature placing under martial law a large portion of the United States. This was immediately following the Civil War. The insurgents had been reduced to subjection. It became a question as to the terms upon which the conquered States should be restored to their places in the Union. The question was of momentous import. The Executive and the Congress were not agreed upon it. -The result showed how nearly omnipotent in this country the latter is. Virtually for purposes of reconstruction it exercised command of the Army; not, however, by virtue of constitutional, but usurped authority. 542. The series of acts by which legislative martial law was accomplished were passed in 1867 over the Presidential veto. The claim here set up for Congressional authority was in effect sustained by the Supreme Court.' The first of the acts re- ferred to,* after declaring in the preamble that no legal State governments or adequate protection for life or property ex- isted in the rebel States, and further, that it was necessary that peace and good order should be enforced there until loyal and republican governments' could legally be established, pro- I. Ante, Sec. 11, Introduction, et seq. 2. Luther v. Borden, 7 How- ard, p. i. 3. 7 Wallace, pp. 707-8 ; 13 Wallace, p. 646. 4. March 2, 1867. 5. Constitution, U S., Art 4, Sec. 4, clause i. •481 —31 — 482 MIIvITARY GOVERNMENT AND MARTIAL LAW. ceeded to place the designated States under military control. Five military districts were created. It was made the duty of the President to assign to the command of each an army officer not under the rank of brigadier-general, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority. It was made his duty to protect life and property, suppress insurrection, disorder, and violence, and to punish or cause to be punished all disturbers of the pub- lic peace and criminals; and to this end he might allow local civil tribunals to take jurisdiction or he might organize military commissions or tribunals for that purpose, and all interference under color of State authority with this exercise of military authority was declared null and void. All persons placed under military arrest by virtue of the act were to be tried with- out unnecessary delay; no cruel or unusual punishment was to be inflicted; no sentence of a military commission or other tribunal authorized by the act affecting life or liberty to be executed until approved by the district commander, nor sen- tence of death until approved by the President. Provision was made for the admission of the States affected into the full communion of the States of the Union upon the performance of certain conditions precedent; and it was declared that until this was done any civil government which might exist in any one of them should be deemed provisional only, and subject to be modified, controlled, or abolished by the supreme authority of the United States. 543. It is difficult to conceive of a more rigid system of martial law than this. In essence, in idea, and largely in terms, it was erected upon the same principles as the recent martial-law proclamation in the British South African colonies. The districts involved were subjected absolutely to military control. If the civil jurisdiction were resorted to, it was matter of convenience merely. The miUtary administrative arm was assisted when necessary by the military judicial function; and the two, acting together, were supreme and sufficient for all purposes of government. As an example of legislative CONGKESSIONAL MAETIAL LAW. 483 m,artial law, this act is a model. It evinces the entire confidence which Congress had in the Army. The President strenuously objected to it for the reason, among others, that it was a legisla- tive usurpation of executive authoiity; but, having passed by the constitutional majoiity ovei his veto, he was bound to see it carried into execution. Its effect could be avoided only by a decision of the Supreme Court declaring it unconstitutional, a tedious process at best ; besides, when actually presented for decision, that court might determine the question the other way. 1 Uuder the plan of martial rule instituted by Congress there were but two subjects of Presidential cognizance : First, the appointment of the military commanders ; second, cases of death penalty when adjudged by the military courts authorized by the act. 544. Notwithstanding it would seem that there was no room for doubt as to the meaning of this act, controversies upon this point soon arose which led to still more stringent legislative measures. The Attorney-General, when called upon for adv'ce as to the signification of the act, gave as his opinion that its terms; must be strictly construed; that military authority under it was nothing more than a police power, and did not include the exercise of civil government; that it did not include the ap^ pointment of c'vil officers or interference with civil laws and ordinances or the course of civil jurisprudence, except in ex- treme criminal cases, and by this theory of the law the juris- diction of the military tribunals created by it was greatly circumscribed. 2 545. In the then temper of Congress there could be but one result. Within a month of the time this opinion — which, in effect, would have deprived the law of its sterner martial-law features — ^was promulgated, a supplemental act was passed explanatory of the former, but with additional and yet more rigid provisions. 3 r. 7 Wallace, pp. 707-8; 13 Wallace, p 646. 2. 12 Opinions of Attorney-General, 182, June 12, 1867. 3. Act, July 19, 1867. 484 MILITARY GOVERNMENT AND MARTIAL LAW, It was declared to be the true intent and meaning of the act of March 2, 1867, that the governments of the "rebel States" therein mentioned were not legal, and that if thereafter they continued, they were to be subject in all respects to the mili- tary commanders of the respective districts and to the para- mount authority of Congress. How this construction of the law could have been questioned by one whj gave even moderate attention to the language of the original act, it is difficult to comprehend. It is no doubt a >correct principle that in time of peace statutes authorizing the ^exercise of military power over civilians are to be construed strictly. It was also true that March 2, 1867, war had ceased to be flagrant, and it was therefore technically time of peace. 546. But it was a. so true that the civil governments in the late insurrectionary States were inimical to the Union; that society theie was in a dangerously disoideied condition; that deep-seated enmity was at this period entertained by the leading people towards important principles of governmental policy which those who had saved the Union had resolved should ibe incorporated into the Constitution. The act of March 2, 1867, was to be construed in the light of these facts. Techni- cally it might be termed "time of peace" ; but in reality it was ifar different, as that phrase is generally understood. It was a -state of latent rebellion. Had the President, the Attorney- •General, and their friends been able to take this view of the case and given the law a construction in consonance with its intent, they would have been spared the disagreeable experience which followed, during which they were compelled to drain the bitter cup of humiliation to its dregs. 547. By Section 2 of the supplemental act 1 the general com- manding the Army of the United States was interposed be- tween the President and the district commanders with an au- thorit};^ which greatly derogated from that of the Exerutive as commander-in-chief. And to meet the difficulty arising from the Attorney-General's opinion, that the act of March 2d gave I. July 19, 1867. CONGEESSIONAL MAHTIAL LAW. 485 roMtaty distiict commanders no authority in matters of civil government, they were now in express terms given such au- thor\ty fully and completely, not as formetly under the direct supervision of the President, but of the general commanding *he Army. 548, The general of the Army was invested with every au- thority to appoint and remove civil officers within the military district^ that the various district commanders possessed. All previous acts of the latter, either making or unmaking civil offices, were confirmed. No district commander was to be bound in his actions by any opinion of any civil officer of the United Spates. The object of this was evidently to provide against any future opinion of the Attorney-General adverse to the general purposes of the law; and it was declared that the provisions of the acts involved should receive a liberal con- struction, .to the end that the intents thereof should fully and perfectly be carried out. 549. There have been numerous instances in the history of the United States and of particular States of the declaration of maitial law. But for completeness of design and efficacy of measures for carrying it into successful execution, nothing could surpass these acts of Congress. They established a military despotism. The insurrectionary States had been reduced to subjection by the sword; they were to be ruled by the sword until they were willing to return to their former positions upon such terms as would not again, from the same causes as before, imperil the safety of the Union. Judging from these acts, the authority of Congress in this regard would seem to be com- plete. It was attempted in vain to enj nn the carrying this legislative martial law into execution, i The Supreme Court refused to interfere. The power and duty conferred and im- posed by those acts, it was observed, were purely executive and political in their nature and beyond the sphere of the judicial cognizance. Nor was this system of government wanting i I. 4 Wallace, p. 475; 6 Wallace, p. 50. 4^6 MILITARY GOVERNMENT AND MARTIAL LAW. the attributes of power, firmness, and, considering the times, justice. "The national legislature," said the Supreme Court of Texas, "used its legitimate powers with moderation and mag- nanimity, endeavoring to encourage the formation of lepubli- can governments in these States, and bring the people back to a due appreciation of the law and of the liberty which is secured to the free enjoyment of every citizen under the Constitution." i To the same effect was Texas v. White, decided by the Supreme Court of the United States. 2 It was there held that while war ^was flagrant it was within the powei of the President to insti- *tute temporary [military] governments over the insurgent ter- tritory. But, rebellion being suppressed, and the question being upon what conditions the conquered territory was again to be admitted into the Union, the duty devolved upon Congress to determine that question, which it had done, in a constitutional manner. This position was affirmed in various decisions. "'Fro-Ti the close of the rebellion," said the same court in White w. Hart, "until Georgia was restored to her normal relations and functions in the Union, she was governed under the laws of the United States known as the Reconstruction Acts. The State, having complied with the terms of theje acts, was declared by Congress entitled to representation in that body. The action of 'Congress upon the subject cannot be inquired into. The case as one in which the judicial is bound to follow the action of the political department of the Government and is concluded by it." 3 550. It was doubtless ttue that the condition of public feeling in the late insurrectionary States, wh'cb led to the en- actment of the laws just cited, was not such as ordinarily would cause a nice legatd to be paid to the convenience and piejudices of the people thus subjected to martial law. Yet we see on every hand military comn^anders making use of the civil in- stitutions of their respective districts to the utmost that regard for the objects of these laws would permit. As observed by I. 33 Texas, p. 570. 2. 7 Wallace, p. 701. 3. 13 Wallace, p. 646. CONGRESSIONAL MARTIAL LAW. 487 \ Chlpf- Justice Chase, the m litary existed only to prevent i legal violence to persons and property, and to facilitate the restora- tion of the States, and this fact district commanders constantly sough^ to impress upon the people interested. This appears from their orders, as, for instance, that the military courts con- vened under these laws were to be "governed by the rules of •evidence .prescribed by the laws of the State in which the case was tried" ;i that it was the purpose of the commanding gen- eral "not to interfere with the operation of the State laws, as administered by civil tribunals, except where the remedies thereby afforded are inadequate to secure individuals sub- stantial justice" ;2 that "the trial and punishment of criminals was to be left to the Civil authorities, so long as the said author- ities are energetic, active, and do justice to the rights of per- sons and property without distinction of race or color. "3 551. We have not far to go in seeking for the reason of this universal deference to civil institutions on the part of military oflScers. It is a part of their existence. They are educated to regard the civil law with the greatest respect, and are solicitous to avoid being brought under its censure. Indeed, the general principle that the civil is superior to the military jurisdiction is so firmly implanted in their minds that they never question, save in extreme cases which their good sense rejects at first sight as improper, the acts of agents of civil government. It easily can be imagined that a class of public officials thus im- bued not only with a profound regard for civil administration, but a desire to avoid if possible having anything to do with it, .woald not seek even a temporary extension of their own au- thority over it. It results that military officers are as a rule not the first to suggest such a measuie. When, however, the necessity arises, they generally do not shrink from the responsi- bility thereby imposed, conscious that they are actuated by love of good order and not by lust of power. I. Second District, G. O. 18, 1868 (Winthrop's Military Law, Vol. 2, 2d Ed., p. 1331, notes). 2. First District, G. O. 24, 1868, ibid. 3. Third District, G. O. 10, 1868, ibid. 488 MILITARY GOVERNMENT AND MARTIAL LAW. 552. Martial law either with or without formal declaratioD- having become an established fact, how reluctantly soever this may be, it is natural that the military commander, now su- preme, should avail himself of ordinary governmental instru- mentalities when and to the extent that this can be done con- sistently with the objects he has in view. Successfully to gov- ern a community even in times of peace is not an easy task. To the casual observer the machinery of municipal affairs may seem to run itself, but closer examination will evince that when this is so, it is due, first, to a well-digested system of laws, and second, to unceasing vigilance on the part of those entrusted with their execution. But martial law does not exist in ordi- nary times of peace. That it exists at all is evidence that Sc ciety is disturbed to a degree beyond the power of civil govem-^ ment to manage. Good government is more difficult to main- tain at such times than at any other. The military is made the dominating power because of this weakness of the civil power. By virtue of their decree, and according to their plan,, order is enforced and individuals rendered secure in persons and property. 553. But this exercise of military authority may not, oper- ating alone, fully meet the ends for which it is invoked. Under it many subordinate authorities and instrumentalities find their spheres of action extending out into the minute details of private and municipal affairs. A vast mass of matters inti- mately affecting the happiness of the governed, their liberties and property rights must hourly be cared for by duly con- stituted officers, or great suffering, inextricable confusion, and injustice to individuals will result. Property is entailed, mar- riages entered into, contracts made, and many other every-day domestic concerns must regularly and sytematically pursue their accustomed course, or society receives a shock from which it but slowly and painfully recovers. It is not the policy of military commanders to bring about such a condition of affairs. On the contrary, it is a matter of deep solicitude with them to- prevent it. The attainment of this end is most easily accom- CONGKESSIONAL MARTIAL LAW. 489 plished by the civil judicature, to the extent absolutely neces- sary, auting under military control. Hence it was that on both the Union and Confederate sides during the Civil War, when martial law was declared it was generally stipulated that this was not to be considered as disturbing the usual order of things ■except in so far as imperatively necessary ; while often supple- mentary orders were issued by those upon whom the duty of •enforcing martial law devolved, calling the civil and municipal -administration to their assistance. CHAPTER XXIV. Martiai. Law in States and Tbrritorijss. 554. We have seen that in carrying into execution those laws which provide for protecting the national Government against both invasion and insurrection, and maintaining Fed- eral supremacy, the President may act within the States inde- pendently of State authorities and even against their wishes. There have been numerous instances of this exercise of power in the history of the Government. Under those circumstances^ if meastires proceed to the extremity of martial law, the Fed- eral Go\ernment acts without necessarily inquiring how the State is affected. 555. There is, however, another case when the interposition, of Federal power is authorized by the Constitution and wherein the State acts a more determining part. Article 4, Section 4,. provides that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion and, on application of the legislatu e or of the executive (when the legislature can- not be convened), against domestic violence." 556. Regarding this duty of guaranteeing governments republican in form but little need be said. A question might arise as to what constituted such government. If this hap- pened, it would be necessary for some controlling power to- decide, and unquestionably it would be Congress. The Su- preme Court of the United States so stated in Luther v. Borden, and the Reconstruction Acts of March 2 and July 19, 1867, proceeded upon this principle. 1 If the instituting martial law under these circumstances became necessary, it would be wholly a matter of Federal cognizance. I. Texas v. White, 7 Wallace, p. 700. 490 MAETIAL LAW IN STATES AND TEERITOKIES. 49 1 557. It is conceived that the same would be true when the Federal authority proceeded to the second duty here indicated, to protect a State against invasion. The duty in both these instances is mandatory. The Federal Government when or- ganized took upon itself the obligations imposed in these pro- visions of the fundamental law ; and in acquitting itself thereof, it would move in the manner most expeditious, effective, and satisfactory to itself. All measures taken, including if need be martial law, would be Federal in nature, and the United States would take and maintain the initiative. 558. The case, however, is different regarding the remaining guarantee clause. This provides against danger to the States, not from without, but within. If the legislature be in session, the application should come from it. That is not the language of the Constitution, but is its meaning. When not in session and it cannot be convened, the State executive makes applica- tion to the President to have made effectual the constitutional guarantee against domestic violence. 559. By the act of February 28, 1795, Congress vested in the President power to meet emergencies of this character. Should there be a question as to which is the legislature and who the executive, the President must determine it. 1 560. Many if not all of the United States statutes passed since then, providing for the emplo)Tiient of regular troops or the militia or both for national defence and maintaining the supremacy of Federal laws, at the same time equally guard all the States and their laws. Thus means are fully provided for meeting the national obligations imposed by the clauses of the Constitution mentioned. 2 561. The act of February 28, 1795, does not render it im- perative that the President call out the militia on application of State authorities. It only states that it may be lawful for him to do so. He exercises his discretion when the exigency arises. In the case of Dorr's Rebellion he declined to interfere, 3 I. Chapter 36; 7 Howard, pp. 42-43. 2. Art. i, Sec. 8, clause 14; Art. 4, Sec. 4. 3. 7 Howard, p. 41. 492 MILITARY GOVEKNMBNT AND MAETIAL LAW. and the State proceeded unaided to maintain its authority. In nearly all cases, however, the President has promptly re- sponded with Federal aid. In fact, he prepared to sustain the regular government of Rhode Island, but his measures were taken with extreme caution, and, before the fitting moment came to show the Federal hand, the Dorr movement collapsed. If it be a case of insiurection, and the President deem it a fitting occasion to interpose, the statute provides that he shall forthwith by proclamation command the insurgents to disperse and retire peaceably to their abodes within a limited time.i 562. It now becomes necessary, the troops having entered the State, to determine under whose authority they shall act. This question the President decides. He is proceeding, pur- suant to law, to render effective one of the guarantees which the Constitution has given each State from the United States. The law prescribes that this shall be done by military force. But it does not enter irito details as to how this force shall be used. This is left to the President. The responsibility is his, and he is given a discretion as' to the manner in which he shall use the means supplied to him by law to meet the Federal obligation. 563. A State under these circumstances will seldom be dis- posed to dictate how the assistance called for is to be used. Having exhausted her own coercive resources, she has turned to the stronger power provided by the Constitution to rescue her from the violence of her own members. The power invoked must direct its own energies. It cannot abdicate its functions and transfer its duties to the inferior power. Consequently, whether the President either commands in person, as President Washington for a time did in the Pennsylvania rebellion of 1 794, or devolve this duty on a subordinate, he must and will reserve the right to resume the reins of supreme authority should the occasion require it. 564. It follows that the President might .proceed to protect the State against domestic violence, either by acting indeperid 4. Sec. 5300, R. S. MAETIAL LAW IN STATES AND TEERITOEIES. 493 ently of State authorities or in cooperation with them ; or for this occasion the troops miglit, it is submitted, be placed sub- ordinate to and at the disposal of the chief executive of the State. They may be used either to sustain or supplant the civil authorities, depending upon the President's view of the exigency. But whatever plan be adopted, the President would necessarily have the right to modify or abandon it if the public interests and the object to be attained would thereby better be subserved. When the time for the interposition of Federal authority arises, the President, not the State officers, is charged with the duty of seeing that it is wisely and eJEcaciously exercised. In 1877, during the great railroad strikes, this question was raised. The administration was by no means certain what course to pursue, varying this from time to time. But finally the troops on the scene of operations, in pursuance of the gov- ernor's call for aid, were placed by the President under com- mand of the regular army officer of his selection, to carry out military measures as he saw fit. They did not report to nor act under the governor's orders. 565. Yet there is a limit to the authority which may be ex- erted to protect a State against domestic violence. This must be done in such manner as not to defeat the object of that other guarantee in the same clause, and which engages the United States to ensure each State a republican form of gov- ernment. The military power invoked must not erect a per- manent government non-republican in form. Permanently to secure one republican in form, however, it may be necessary temporarily to erect a complete government of the sword, or such modification of this as the emergency, in the judgment of the oflScer entrusted with the management of affairs, calls for. That martial law may be a proper measiure under these circum- stances, the Supreme Court of the United States in Luther v. Borden explicitly declared. The domestic violence may vary in its proportions from a local riot or insurrection to rebellion which strikes at the supremacy of State government itself. 494 MILITARY GOVERNMENT AND MARTIAL LAW. The assistance rendered by the President will correspond to the occasion, from a few hundred to perhaps many thousand troops. The district occupied may vary from one or two points to ex- tensive portions of State territory. The measures of adminis- tration and control necessary to adopt in every instance will depend upon its own circumstances. The President or the officer to whom he confides the .direction of affairs will decide upon this, and if martial law be a necessary and proper measure, he will institute it. His is both the duty and the responsibility. 566. The duty and authority of the President, when either the execution of Federal laws is obstructed. Federal territory invaded, or the States call for assistance, to enforce martial law if in his judgment the exigency requires it, seems to be complete. In this regard the Executive is invested with all power neces- sary to vindicate the laws and preserve unimpaired both the integrity of civil institutions and the national domain. 567. There is no reason why the governor of a State, who is the commander-in-chief of its armed forces, should not have the power, equally with the President, locally to enforce martial aw should occasion justify it. If the legislature be in ses- sion 01" can be convened in time to meet the emergency, he might with piopriety await its cooperation. On the other hand, the state of facts which is held to justify this law gen- erally is of such a nature as to demand prompt action. Delay may be fatal to the maintenance of good order. Such in fact generally will be the case. And even if it be practicable to con- vene the legislature, there may be sufficient reasons why the governor, in the exercise of a wise discretion, may not deem it either advisable or necessary. There have, however, been few instances of the exercise of martial law by State authority. That of Rhode Island has already been mentioned. The ex- ercise of martial law in the mining district of Idaho in July, 1892, and again in 1899, weie occurrences of lecent date. An armed mob took possession of the mines with the avowed puipose of prevei ting their being worked by persons obnox- ious to the rioters. The latter were well armed and provided I. See also the exercise of martial law in Colorado, 1904. MARTIAL LAW IN STATES AND TEBRITORIES. 495 with d3mainite and other high explosives for t>ieir ir.easures of threatened and actual destruction. The disaffected distiict was a mountainous, isolated region. A reign of terror soon was inaugurated which swept away or through disaffection ren- dered powerle^ the local civil magistracy. Circumstances at once reduced the situation to one wherein the military alone could preserve order and re-establish lawful authority. But the State militia were few in numbers and, without support, utterly inadequate for this purpose. In 1899 they had gone as volunteers to the Philippines. The cases were, theiefore, those contemplated by the Constitution, and the goverror, as the legislature was neither in session nor could be convened, applied to the President for the Federal protection to the State guaranteed by that instrument. 568 Meantime, and as if to leave no means at his command for sustaining civil authority untried, the governor in each instance issued a proclamation declaring the county which was the scene of disturbance to be in a state of insurrection and re- bellion. It was preliminary to proceeding by summary proc- esses so soon as the military should be upon the scene of action. It authorized the adoption of martial law or other measures which the exigency of the case rendered necessary. The Pres- ident promptly responded to the governor's call for regular troops. It is particularly to be noticed that the object for which they were sent, as indicated by the President himself, was, in the terms of the governor's request, to cooperate with the civil authorities in the preservation of the 'peace and pro- tecting life and property. Fortunately for all concerned, a prudent and able regular commander was near at hand. To him was entrusted the management of military matters. The appearance of the military upon the scene was the signal for rioting miners to disperse to their various camps. But here, as has been so often the case elsewhere, it was found that the local authorities, either from sjTnpathy with the rioters or through fear of their vengeance, were incapable properly of per- forming their functions. They could not be trusted to proceed 496 MILITARY GOVERNMENT AND MARTIAL LAW. promptly against the law-breakers to bring them to justice and restore confidence to the community. The civil magistracy being powerless either to protect society or to maintain govern- ment, martial law, without formal proclamation other than that of the governor's mentioned, now found its fitting field of ac- tion. Local civil officers who had. been duly elected or ap- pointed under the laws of the State were in some instances re- moved, and others appointed by the governor's representative on the spot, who was given direction of martial-law measures. United States as well as State marshals were there to make arrests with the assistance of the troops, without which they could have done nothing. Some hundreds of the malcontents, charged with murder, robbery, plunder, and criminal destruc- tion of property, were thus taken into the custody of the civil authorities, and escorted by the troops, pursuant to the Presi- dent's express orders, to the State capital for trial. Note. — ^The order of events in the Cceut d' AUne district of Idaho, 1892, was as follows: On July 13 the governor declared Shoshone County, the seat of disturbance, to be in a state of insurrection and rebellion. On the 15th the President issued his proclamation commanding all persons engaged therein peaceably to return to their homes. Meanwhile both Federal and State troops had been moved to the scene of action. The com- mander of the latter represented the governor in the field. He exercised martial-law powers fully, removing the sheriff and appointing another in his stead. The appointee was instructed to take possession of all books and property appertaining to the office, and perform the duties thereof strictly according to law, except that he was '' not to interfere in any way with the administration of martial law as conducted by the military au- thorities." Mills'in the mining region were shut down, and other martial- law measures taken by the State military commander. No use of words could relieve the situation from one of the rule of martial law to the fullest extent. No formal proclamation instituting it was issued, but the status became that from its incidents as here narrated. This was eminently proper. The lawful declaration that the district was in insurrection and rebellion authorized the usual measures of war against the rebels and the adoption of whatever means contributed to the speedy restoration of order. The exercise of martial-law authority was by State, not Federal authorities. The latter acted simply to uphold the former by their pres- ence. The influence they exerted was moral rather than physical. MABTIAL LAW IN STATES AND TBKEITOEIBS. 497 569. It thus will be seen that in the exercise of martial law upon these occasions the military acted in coQpeiation with, yet a part superior t •>, the civil power. There were no antagonisms ; no strifes for precedence between these agents of the law. All worked together harmoniously for the common end, the res- toration of law and order in the community, giving security to property, the bringing criminals to justice. Subsequently this exercise of martial-law power was justified and authority vindicated by the State Supreme Court of Idaho, i 570. The Confederate State authorities did not hesitate to exercise similar authority. On numerous occasions the gov ernors appealed to the Confederate President to exercise within their respective jurisdictions the martial-law power ; and when this was not done, as sometimes was the case, they enforced it themselves. When, in the fall of 1862, the orders of Confed- erate generals establishing martial law were rescinded, except where expressly authorized by the President, the governor of Texas expressed his regret, and at his solicitation the general commanding there continued to exercise that law over a por- tion of his territorial command, notwithstanding his orders from superior authority to the contrary. 2 South Carolina, the front of the rebellion, was not to be left behind in sealing her devotion in this as in other respects to the cause she had espoused. An ordinance was adopted by a State convention of her people on the 7tb day of January, 1862, em- powering the governor and executive council, acting together, to declare martial law to such extent, in such places, and at such times as might be required by the exigencies of public affairs. In pursuance of this authority, the governor. May i, 1862, proclaimed martial law over the city of Charleston and the country for ten miles around, as well as the adjacent islands. This proclamation curiously, though perhaps so far as its promulgator was concerned unconsciously, illustrates the hallucinations of a devotee to the fatal doctrine, so pleasing to local and pride, and until then so prevalent in South Carolina, I. See Sec. 603, Chap. XXV., post. 2. R. R. S., I., Vol. 15, p. 829. 32— 498 MILITARY GOVERNMENT AND MARTIAL LAW, that the State, and not the Nation, is supreme, i Having de- cla^-ed martial law, Governor Pickins proceeded solemnly to in- vest the Confederate general commanding the department with authority to enforce that law ! and with further authority to im- press, in the country south of the Santee River, labor of all kinds for the public service in like manner as if martial law were there declared! Of course, the principle that the State was the source whence the authority of Confederate officers flowed, as here assumed, was a meie figment of a disordered States' rights mind, and wholly untenable; the necessities of war soon swept to one side and strangled the heresy. The Confederate general could not and did not act under the pre- tended authority conferred by the governor. On the same day that the latter proclaimed martial law the Confederate Presi- dent issued a similar proclamation embracing the same and much more territory — the whole country between the Santee and South Edisto rivers in South Carolina — ^and it was duly maintained until August 19, 1862, when the orders instituting martial law were rescinded. 2 In Georgia, the governor, while not proclaiming, expressed himself as willing that martial law be extended by Confederate authority over those portions of the State the inhabitants of which, as at Augusta, were calling for its exercise. 3 In Louisi- ana we are presented with the spectacle of the governor solicit- ing the Confederate President to declare martial law in certain parishes, and expressing his deep regrets that it was not done, as thereby "much, very much serious trouble would have been avoided." 571. There have been few examples of the enforcement of martial law in the Territories of the United States. The Ter- ritory of Washington furnishes two instances. The first was in 1856, when the governor, himself an able and distinguished soldier, proclaimed and enforced it. The question of the gov- ernor's authority on this occasion having been submitted to the I. R. R. S., I., Vol. 14, pp. 489, 491. 2. Ibid., p.Jsgg. 3. R. R. S., I., Vol. 15, p. 492. MARTIAL LAW IN STATES AND TEERITORIES. 499 Attorney-General for an opinion, that officer, after exhaustive- ly examining the subject, arrived at the conclusion that such au- thority did not exist. 1 The reasoning was to the effect that the Territorial governor, being an appointee of the President, had only those powers which statutes, strictly construed, gave him; and although occasions might arise, in a Territory as in a State, when the enforcement of martial law would be neces- sary, the legislature alone could seemingly authorize the exer- cise within a Territory of the martial-law power. 572. It is safe to assume that this reasoning will not be deemed conclusive. In fact, it was disregarded, with the ap- parent approval of the President, by a subsequent governor of the same Territory. 2 In the years 1 885-86 there were frequent illegal uprisings of the lower classes in the western portion of that Territory against the Chinese. These gradually grew into riotous assemblages in delBance of civil authority, the centers of disturbance being in Tacoma and Seattle. The rioters were armed and defiant. The local militia were called out in aid of the officers of the law, supported by the posse comitatus. The proclamation of the governor warned the mob to disperse. It was wholly disregarded. In a conflict between the rioters — who were the worst characters from that part of the United States — and the State authorities, one rioter was killed and several were wounded. 3 The governor issued a second procla- mation, declaring that an insurrection existed by which life, liberty, and property were endangered, that the civil power was unable to suppress the disorder, and placing the city of Seattle under martial law. Before taking this step the chief- justice and the United States attorney of the Territory were consulted, both of whom earnestly counselled the measure. 573. The President of the United States, far from finding fault with the governor, promptly seconded his efforts to main- I. 8 Opinions of Attorney -General, p. 365 et seq. 2 Report of Gov- ernor of Washington Territory to Secretary of Interior, 1886. 3. This was a state of war under English authorities; see Regina v. Frost, 9 Car rington & Payne's Reports, p. 129. 500 MILITARY GOVERNMENT AND MARTIAL LAW. tain the law at all hazards. He immediately issued a proclama- tion stating that a case had arisen which justified and required,, under the Constitution and laws of the United States, the em- ployment of military force to suppress domestic violence and; enforce the faithful execution of the laws, and directed General Gibbon, commanding the United States forces in that quarter, to move with regular troops to the assistance of the governor. These energetic measures had the desired effect. Quiet was soon restored. The presence of the regular troops gave con- fidence to the business and law-abiding members of the com- munity. Having been in force two weeks, the proclamation, of martial law was revoked. After the arrival of the regulars: — and until February 22, 1886— martial law was enforced.. General Gibbon had complete military control. This was with the acquiescence of the governor and at his request. 574. For his course in this trying emergency. Governor Squire had the approval of all good citizens. The bar of Seattle passed resolutions declaring that the exigencies of the occasion fully justified martial law, and pledging the governor their support. A feeling of relief pervaded the community when the strong military haryi was felt at the helm, and of grateful- ness to those who had saved the people from anarchy and the rule of a cowardly mob. To render martial law effective, pro- vost-marshals were duly appointed ; the privilege of the writ of habeas corpus was suspended as to rioters, while in respect tO' ordinary municipal affairs the military in no wise interfered. 575. The remaining conspicuous instance of martial law in a Territory was that of Arizona in 1862. When the Rebellion of 1 86 1 broke out, the insurrectionary government promptly put. in execution a scheme of conquest of the southwest Territories of the Union. Both New Mexico and Arizona were invaded, and the latter for some time held by the rebel military forces. Early in 1862 a relieving column of national troops from Cali- fornia reached the Territorial capital, where, June 8, 1862, its MARTIAL LAW IN STATES AND TERRITORIES. 50I 'Commander, Colonel Carleton, issued a proclamation establish- ing martial law throughout the Territory.* 576. The summer of 1892 has furnished an unprecedented number of instances within the States of the military pbwer being appealed to for that energy and sstrength which civil ad- ministration lacked. In several different and widely separated districts, riots or similar disturbances, accompanied by loss of life and destruction of valuable property, demonstrated how inadequate municipal authorities quickly may become to secure *This was worded as follows: "In the present chaotic state in which Arizona is found to be, with no civil officers to administer the laws — indeed, with an utter absence of all civil authority — and with no security of life or property within its borders, it becomes the duty of the under- signed to represent the authority of the United States over the people of Arizona as well as over all those who compose or are connected with the column from California. Thus, by virtue of his office as military com- minder of the forces now here, and to meet the fact that wherever within our boundaries our colors fly there the sovereign power of our country must at once be acknowledged, and law and order at once prevail, the undersigned, as a military governor, assumes control of this territory until such time as the President of the United States shall otherwise direct. Thus also it is hereby declared that until civil officers shall be sent by the Government to organize the civil courts for the administration of justice, the Territory of Arizona is hereby placed under martial law. Trials for capital offences shall be held by a military commission, to be com- posed of not more than thirteen nor less than nine commissioned officers. The rules of evidence shall be those customary in practice under the com- mon law. The trials shall be public and shall be trials of record, and the mode of procedure shall be strictly in accordance with that of courts- martial in the Army of the United States. Unless the public safety abso- lutely requires it, no execution shall follow conviction until the orders in the case by the President shall be known. Trials for minor offences shall be held under the same rules, except that for these a commission of not more than five nor less than three commissioned officers may sit, and a vote of the majority determine the issue. In these cases the orders of the officers ordering the commissions shall be final. All matters in relation to rights in property and lands which may be in dispute shall be deter- mined for the time being by a military commission, to be composed of not more than five nor less than three commissioned officers. Of course appeals from the decisions of such commissions can be taken to the civil •courts when once the latter have been established." (R. R. S.., I., Vol. 9, P 561.) 502 MILITAKT GOVERNMENT AND MAETIAL LAW. the people the enjoyment of their just rights when a con- siderable portion of the community unite in setting the laws at defiance. And not only that, but how a very few individuals,, encouraged in lawless deeds by secret societies who tender them sympathy and material aid, may render necessary the exertion; to counteract their machinations, the exercise for a protracted' period of the energies of government upon an extensive scale. 577. The contemplation of this condition of affairs must give rise to disagreeable sensations in the breasts of all citizens who- either own property which may then be destroyed or who de- sire only to live in peace under the protection of the law — in other words, who ask only that government do its duty. The instances of disorder show unmistakably that there is abroad in the land a spirit of reckless defiance of authority which the- experience of the world has demonstrated cannot be controlled without the application of overwhelming physical force, dis- ciplined, armed, and directed systematically to that end. Furthermore, it seems that, in great exigencies, the military is the only force that can be so utilized successfully. 578. Not the least alarming feature of these riotous pro- ceedings is the melancholy evidence they furnish of the general' helplessness in their presence of the -civil authorities. The poss-e comitatus has signally failed. It is an old and honored institution, sanctified in the Anglo-Saxon system of jurispru- dence. But events are fast accumulating which furnish ground for the belief that it is not suited to the present conditions of society. Where was the posse comitatus when death and de- struction stalked abroad in the Tennessee and Coeur d'AlSne regions, at the Homestead, Pennsylvania, mills, and the exten- sive railroad d6p6ts of Buffalo, New York? The confession is unwillingly forced from us not only that it could not be assem- bled in force sufficient to sustain the civil officers in the execu- tion of the law; but that efforts to do this only brought the whole system into contempt by demonstrating to the law- breakers its insufficiency as an energetic, forceful instrumen- tality of government. There exist, of course, reasons for this MARTIAI LAW IN STATES AND TERKITOEIES. 503 change from former and honored practices. Private citizens in the disaffected community often will not brave the resent- meijt of reckless and desperate men, who compose largely the disturbing element, by appearing in arms against them. When the efficiency of the posse comitatus was at its height, society, business interests, and government were far less complex than they are now. And while sometimes it may still be resorted to effectively, yet the time seems to have arrived when, to meet great emergencies of disorder, local or general, resort must be had to some other and more potent agency, i Until it was put a stop to by act of June i8, 1878, it had been the practice of the Government to consider the United States Army as available as a portion of the posse comitatus. That act, based on political considerations alone, and which attempts to deprive the President of the most potent agent in the performance of his constitutional duty to see that the laws are faithfully executed, is of doubtful constitutionality, but it relieves the Army from possibly much disagreeable service. So unsatisfactory from the standpoint of efficiency did the control of civil officials prove that in time the habit grew up of requiring the civil officer to state boldly what he wished done to the officer in command, and the latter would take measures at discretion and according to his best judgment; m fact, it was demonsttated that this was the only effective way to employ the military. A development of this was the experience during 1894, when the Army was used to remove obstructions to the transportation of the mails and interstate commerce. In performing this duty the Army worked under its own officers exclusively, in its own way, and without de- ferring to any civil officers as having any other than advisory authority in the premises. It was during these events that the salutary and military Army regulation was promulgated, that the employment of the troops in'the aid of the civil authority was a purely tactical question, to be met by tactical I. See-Sec. 384, Chap. XVII., ante. 504 MILITARY GOVBRNMESTT AND MARTIAL hAW.. methods, and that when shooting, unfortunately, became nec- essary, it would be to kill, i .57Q. If the posse comitatus fail, some other effective coercive power must take its place, or disorder grows apace and govern- ment fails of its purpose. That power is the military. If this fail, revolution results. The question then becomes inter- esting, Who is to control this new force, the military authorities alone, the civil alone, or both combined, and working to a com- mon end? The question is not only interesting, but of im- portance as well, for experience everywhere has shown that this force of last resort acts effectively only when, whether theoretically so or not, it is practically independent of civil interference. It does not fit into the niche in the governmental structure that the posse comitatus was intended to fill, but has left vacant. It is wholly different from the latter in origin, organization, design, and method of employment. The op- posite assertion, as Hallam points out, is a sophism. In sup- pressing the distubances to which reference here is made, the military, except in the Idaho instance, in contemplation of law, proceeded in cooperation with, if not in subordination to, the civil power. But did the latter really exercise control in one instance? If so, it is not known where or when. At most the civil authorities perforce contented themselves with indicating what they deemed desirable, and then the military proceeded to carry out the plan agreed upon. In this union of civil and military power the latter acted with preponderating influence, decision, and effect. At Homestead the situation fell little short of that at the Coeur d'Alene miaes, before mentioned. If martial law did not hold sway there theoretically, it certainly did as a practical fact ; and from necessity the civil authori- ties temporarily were powerless. Moreover, the military per- formed this onerous duty well. If errors were committed, they were the inevitable attendants upon the unusual and trying situation in which the troops were placed. The manifest and gratifying result was the speedy re-establishment of order and the rule of law where before there reigned social anarchy which I A. R. 488, 1904. MARTIAL LAW IN STATES AND TERRITORIES. 505 aimed at nothing short oi the destruction of all government save that of the mob. An efficient substitute for the appar- ently obsolete posse comitatus has been foimd. 580. In none of the instances here referred to was martial law formally declared over the theater of disturbance. Yet in aU, if not equally, it was carried into effect. When civil officers, without the interposition of those instrumentalities which the law has provided for the purpose, are deposed and others set up in their places by the military arm; when civil- ians are arrested, and in some cases injured even unto death by the same dominant power, regardless of civil precepts, martial law prevails. Whether justifiable or not may be- come a matter of subsequent determination. It certainly was deemed so at the time, for in each instance civil officers asked for this power and assisted to give it direction, while all good citizens welcomed the military as conservators of peace, de- fenders of their homes, and vindicators of that law which alone renders life, liberty, and property secure. 581. The effect of this supremacy of military power — not self-sought, but forced upon the soldier either because the civil officers surrendered their authority, or through sympathy with the lawless element proved themselves unwbi thy to exercise it thus necessitating their removal — was that whenever the mili- tary thus were made predominant, the law of the camp ex- tended to the degree that the successful application of the mar- tial-law power rendered necessary. It is true that its exercise was actually brought home to comparatively few people, for the masses were well disposed, desiring only to live in peace and quiet. It was not a state of war, yet the conditions were far from those of peace. In every instance the recognized officers of the law either could Or would not perform their appropriate functio;i5, because violent physical force and measures deterred them.* While, therefore, it was not technically a state of war, ♦Note. — In this conaectioa the followitisf extract frora the charge o the chief-justice of Pennsylvania to the grand jury in the case of the Home- stead rioters is interesting: "A mere mob, collected upon the impulse of 506 MILITARY QOVEENMENT AND MARTIAL LAW. the Status was not wholly unlike it. The situation brought with it new offences, aggravated the heinousness of others, and rendered necessary the adoption of measures, repressive and deterrent, which at other and more orderly times would not have been justifiable. Such measures are not to be judged by the standard of peace alone, but by that of the qiuisi state of war which gave rise to them. An act which in ordinary titnes would be harmless and pass unnoticed might now become so aggravated an ofifence as to render proper the most summary and effective punishment. The transgression may be such that if left unnoticed will lead to the most deplorable results. That is the case with mutiny in all services, and which is held to justify the infliction of the death penalty even during peace. The summary punishment of offenders under martial law pro- ceeds upon the same principle. Otherwise, and if the slower process of the regularly constituted tribunals be resorted to, the moment for effective action may pass, the evil example have worked its baleful influence, and punishment as a deterrent measure be useless. 582. Necessity is the ke3mote. Obviously, measures which would be justifiable in a serious instu-rection would be excessive under a less disturbed condition of affairs. 1 In the long run any amount of just severity becomes a mercy; the bringing a few promptly to answer for their offences may be the means of saving much 'property, many lives, and prevent the spread of the contagion of revolt. When military officers in the presence of mob rule, or other similar danger to the social order, are con- strained to take summary measures, it may not be possible to justify their conduct under the strict rules of law. But no in- the moment, without any definite object beyond the gratification of its sudden passions, does not commit treason, although it destroys property, and attacks human Ufe. But when a large number of men arm and or- ganize themselves, and engage in a common purpose to defy the law, to resist its officers and deprive their fellow-citizens of the rights to which they are entitled under the Constitution and laws, it is a levying of war against the State and the offence is treason." I. Lieutenant Young, Military v. Mobs (1888). MARTIAL LAW IN STATES AND TEBEIT0EIE3. 507 stance is on record where exemplary damages were recovered unless wanton disregard of human rights was evident on the part of the officer, and such cases have been very rare. Judges and juries on such occasions are not inclined, nor if inclined are they at liberty, to ignore the all-important fact that the officer has acted for the good of the whole community, even if there- by a techincal invasion of the rights of individuals has resulted. The danger may have been secret, not to be seen or heard, but felt, like the dissemination of the spirit of mutiny, or the virus of insurrection and revolt. Someone must take control and act promptly to prevent direst consequences perhaps, and no one can do this under martial law, whether formally proclaimed or not, except the military officer. No principle is better es- tablished in the rugged common-law system of jurisprudence than that occasions arise when the rights of individuals must temporarily give way to the public welfare. This is an occasion when the principle has application. If damages are recover- able at all against officers, owing to the particular circum- stances of the case, they are only compensatory, not vindictive, unless it can be shown that the adjudged wrong complained of was wrousfht with an evil intention or from bad motives. 583. In England it has been laid down that no civil action will lie in the first instance against a commissioned officer for a discretionary exercise of military authority whilst in the per- formance of actual duty in the field. If the authority be dis- cretionary, questions regarding its exercise are so essentially military that the civil tribunals decline to consider them without the previous judgment of a court-martial, i I. Pendergrast, p. 138; Barwis d. Keppel, 2 Wilson, p. 314; Sutton ^' Johnson, i, Term Reports, p. 548. See Chap. XXVIJ, post; full consid- eration of this subject. CHAPTER XXV. Administration of Martial I/AW. 584. Martial law existing either by proclamation or force of circumstances, an efficient system of administration must be maintained. Otherwise, instead of amelioiating the condition of society or being a weapon of defence against an enemy, it might prove to be the reverse. Hence the officer entrusted with its enforcement should make clear what authority his subordi- nates may exercise. All, whether soldiers, or civilians, within the martial- law field, are subject to his orders. If it be a case of leg- islative martial law, the statute, in so far as it shows what the legislative will is, prescribes the rule of action. In other re- spects the rules by which it is to be carried into execution are found in military orders or the customs of service, meaning by "custom" the precedents established by determining what has been treated as justifiable in our own and other countiies under similar circumstances. This makes the administration of mar- tial law a delicate matter, because, first, the times give birth to many offences which ordinarily would not be noticed, or greatly aggravates those already known to the law; second, special tribunals may be necessary for both new offences or ordinary ones which must now be tried under unusual conditions ; third, those who are instrumental in enforcing martial law may be held legally responsible for their acts. 585. "The effect of the declaration of martial law," sajrs Fihlason, "is to establish in the proclaimed district a state of war and a species of rule, altogether different from and opposite to that of the common law in every lespect, whether as to (i) offences, (2) penalties, (3) manner of piocedure, (4) power of arrest, (5) nature of proof, (6) mode of trial. 1 In the extreme case this is true. It^was so in Ireland in 1798 and 1803, in I. Commentaries on Martial Law, p. 58. 508 ADMINISTRATION OF MARTIAL LAW. 509 J Jamaica in 1865, Arizona in 1862, East Tennessee in 1862-63 and other portions of the Confederacy at various times during the Civil War, and in portions of Missouri and Kentucky imder Federal control from 1861 to 1865. This, however, is maitial law in its severest form. In most instances the commander is not only willing, but anxious to avail himself to the utmost, consistent with military control, of the ordinary machinery of government. All civil ordinances and instrumentalities may, indeed, be ignored; they exist only at the will of the com- mander, but they remain in existence and continue in operation unless he decides to the contrary. Hence, not only in justice to all concerned, but for his own convenience, the military com- mander publicly should make known the principles upon which martial law is to be enforced. And this both as to matters civil and criminal. 586. Reverting to the fact that under martial law many offences unknown to ordinary times may spring up, while others become aggravated, it may be instanced that seditious publica- tions tending to excite rebellion often on account of that ten- dency are peculiarly dangerous, for, although in times of peace they may do no great mischief, in times of insurrection they are most formidable and fatal offences. 1 At such times overt acts, which although taken alone and without reference to the actual circumstances of the military situation might not amount to any crime, may become injurious and criminal. "A citizen," says Whiting, "may commit acts to which he is accustomed in or- dinary times, but which become gra,ve offences in time of war, although not embraced in the civil penal code. Actions not constituting any offence against the municipal code of the country, having become highly injurious and embarrassing to military operations, may and must be prevented and punished. If an act which interferes with military.operations is not con- trary to the municipal, the gi eater is the reason for preventing it by martial law. And if it may not be punished or preventjed I. Wells, Jurisdiction of Courts, p. 578; Finlason, Martial Law, p. 104. 5IO MILITARY GOVERNMENT AND MARTIAL LAW. by civil or criminal law, this fact makes stronger the necessity for preventing evil consequences by arresting the offender." i 587 It is, as was remarked when treating of military gov- ernment, a well-established rule that belligerents have the right to employ such force as may be necessary to obtain the object of the war. Beyond this the use of force is said to be unlawful. The same principle governs under martial law. In both cases the use of force is authorized to the extent that may be neces- sary. The commander determines what acts of persons within his jurisdiction are offences under the martial-law code. If he have the power of determining what constitutes an offence, he has the power to apply the preventive or corrective principle, whether it be trial and punishment or merely the summary arrest and detention of the offender. Arrest of the person is of little consequence if power to detain, in spite of civil writs, does not exist. Hence the importance of that clause of the Consti- tution of the United States authorizing in certain exigencies the suspension of the privilege of the writ of habeas corpus. 2 There is no doubt of the existence of the power. The lan- guage of the Constitution is clear upon that point. The great question is as to who is authorized to exercise the power. 588. Much attention was given this subject during the Civil War. As we have seen, the President of the United States early resorted to this measure, and continued to suspend the writ throughout the war, although after the proclamation of September 25, 1863, it was done under legislative authority, he polemic contest between those \ ho sustained the I resident and those who mamtamed that Congress alone had power to suspend the privilege of the wiit of habeas corpus was earnest, protracted, and chaiacterized by an intensity of feeling showing that the disputants were fully aware that there was here in- volved a detern ination of one of the most impo*tant constitu- tional principles, and one affecting the most cherished of all rights, that of personal liberty. I. War Powers, loth ecJitioQ, p. 190. 2. Art i, Sec. 9, cl. 2. ADMINISTRATION OP MARTIAL LAW. 5 II 589. It might appear that the President, by giving his sanction to the act of March 3, 1863, acquiesced in the view that the authority to suspend the privilege of the wt it belonged to Congress alone. The conclusion, however, does not follow from the piemises. The President was not inclined to engagt in controversies with the fi lends of the Union upon nice shade^ of constiuction of the fundamental law. The times were not propitious for it. His mind was intently fixed upon a succesF ful issue of the great struggle for the pieservation of the Unioii This in his view dwarfed every other consideration. The act referred to strengthened his bands for this mighty work. That fact was sufficient to insure its approval. But there exists not the slightest evidence that for one moment then or at any time he doubted his power, should the necessities of the war in his judgment justify the measure, to suspend the privilege of the writ of habeas corpus. In the nature of things it vfould seem that the Executive Department must have that power. It is the department which keeps watch and ward over the public safety. If not entrusted with power necessary to that end, it will either be usurped or government fail in its duty. More- over, experience has shown that danger to the liberty of the citizen may flow from legislative as well as executive action. Consider the Parliament of Great Britain from 1642 to 1658; the National Assembly of France and its successors from 1789 to 1799; ^^^^ the Congress of the United States in 1867. Not that either one of these legislative bodies did anything not jus- tified by events; yet it will not be denied that theii acts bore with terrible severity upon portions of the community; and their history brings ever to the minds of all a realizing sense of the important fact that the legislature equally with the exec- utive may resort to extreme measures — deterrent, coercive, punitive. 590. Within the martial-law district all persons who act as enemies, and all who by word or deed give the authorities reasonable cause to believe that they intend to act as such, may lawfully be arrested and detained for the purposes of 512 MILITARY GOVERZSTMENT AND MARTIAL LAW. preventing the consequences of their acts, i That was the law as laid down in lyUther v. Borden. 591. The earliest amendments to the Constitution are in the nature of a bill of rights. 2 That unquestionably is what they were intended to be, and unlike tae privilege of the writ of habeas corpus, there is no express provision in the Constitu- tion for suspending, under any circumstances, the guarantees of life, liberty, and property therein contained. If, however, war intervenes, they remain available, only subordinate to military necessities. Otherwise war could not successfully be prosecuted. The existence of martial law may suspend these rights or continue them only so far as their existence is com- patible with military exigencies. Here the military com- mander, in the first instance, must be the judge, and all within the limits of his authority must, for the time being, submit to his decisions. 592. In his argument before the Supreme Coiirt of the United States, January 27, 1848,3 Mr. Webster very clearly set forth the discretionary nature of the commander's martial- law authority in the following words: "I shall only draw at- tention to the subject of martial law, and in respect to that, instead of going back to martial law as it existed in England at the time the charter of Rhode Island was granted, I shall merely observe that martial law confers power of arrest, of summary trial, and prompt execution, and that when it has been pro- claimed the land becomes a camp, and the law of the camp is the law of the land. Mr. Justice Story defines martial law to be the law of war, a resort to military authority in cases where the civil law is not sufficient; arid it confers summary power, not to be used arbitrarily or for the gratification of personal feelings of hatred or revenge, but for the preservation of order and pub- lic peace. The officer clothed with it is to judge of the deg; ee of force that the necessity of the case may demand, and there is I. Whiting, War Powers, p. 198. 2. Articles i to 8. See Sec. 384, Chap. XVII., ante. 3. Case of Luther v. Borden (for defendant) ; Web- ster's Works, Vol. 6, p. 240. ADMINISTRATION OF MAKTIAL LAW. 513 no limit to this except such as is to be found in the nature and character of the exigency." Had it been added that on the one hand, when used calmly, reasonably, and with the evident de- sire to compass the public weal, though great errors of judg- ment may have been made, much latitude is permitted the commander in the exercise of his authority; and on the other hand, if a determination to use power for personal ends or in an oppressive manner be manifest, he is liable to be held to account for his acts, both militarily and civilly, the picture is complete. The rule is that when martial law exists, either by proclama- tion or otherwise, the commanding ofificer must use his discre- tion, and he is reasonably expected to come as near to the line of justice and fair dealing as the circumstances and the infor- mation he has or might easily obtain will permit. 593. In all cases the commandei must assume the respon- sibility of acting. He cannot delegate his power to another and so evade that responsibility. He will find justification, if that be legally questioned, in the exigency of the times, and his ability to prove that giving credence to information which he had a right to depend upon, his measures were proper. But the justifying facts must, if the case be brought to trial, be found by a jury either to have existed, or, if not, then that the officer, acting as one should in his station, was warranted iii believing that they existed. 594. The remarks of the Supreme Court of Indiana in the case of McCormick v. Humphrey evince a just appreciation of the difficulties which sometimes embarrass commanders eveii within friendly territory, i At the same time the principles enunciated are very strong for the necessity that exists of sus- taining officers in Che exercise of mariial-1 aw power, even though the danger that besets them, instead of being open rebellion, is secret conspiracy. It was alleged that Humphrey, dturing the latter dajra of the Civil War, was an ofiicer in a treasonable or- ganization in Indiana, the object of which was to give the enemy aid and comfort. McCormick, a civil officer, arrested him. I. 27 Indiana, p. 144(1866). 33 — 514 MILITARY GOVERNMENT AND MARTIAL LAW. The local court refused to transfer the case, under Section 5, act of March 3, 1863, to the United States Circuit Courtfor determin- ation; on appeal to the State Supreme Court the decision of the lower court was reversed. In the opinion the Supreme Court remarked: "In October, 1864, the armies of the United States were in active service in the field. To sustain these armies the Government was drawing supplies, both of men and material, from this State. Its officers were active in procuring the en- listment of recruits for the military service. Without these supplies from the country in rear of the armies it was impos- sible to carry forward movements or to prosecute the war Prisoners of war were sent by the military officers in command of our forces in the field to military camps within the State, to be guarded and seciirely kept. Under these circumstances was it the duty of the President or of the officers in command of the military district under him to permit a hostile organization,, as alleged in the petition, to be formed, armed, and freely or- gani ed, to act in the interests of the rebellion, and by force of arms to attempt the release of the prisoners of war and the destruction of the Government ? Must the military commander wait for an actual attack upon the military camps ? Must he depend upon the courts to guard the prisoners of war placed under his charge. Must he permit the supplies of men and provision to be cut off, and the country in rear of our armies to be occupied by hostile forces? Must he wait for the blow to fall, or may he seize the conspirators while they are collecting their forces and preparing to strike ? These are grave questions ; they may involve not only the liberty of the men who, while claiming to be peaceable citizens employed in civil pursuits,, were, it is charged, in fact engaged in secretly organizing a hos- tile military movement for the destruction of their own Gov- ernment; but the decision of these questions may also concern the future life of the nation." 595. This is all true. The necessity that exists for arbitrary arrests may not alwajrs be confined to times and places of open resistance to the execution of the laws. The arm of authority ADMINISTRATION OF MARTIAL LAW. 515 may as effectually be stricken down by the hostile worki gs of professed friends as by the more manly defiance of open ene- mies. Indeed, the former may constitute the greater danger, because it operates imder cover, lulling vigilance into fancied security until the deadly wo k is accomplished; while m the latter case government is at once put upon its guard 596. In the United States there ha been a change of judicial opinion on this subject, i which maiks the approach of the bench to firmer ground. Speculations of former days have given place to the rational, practical principles of the present, based on a century's experience of peace and war. 597. T' e diffe ence discernible between the opinion of the Louisiana court in Johnson v. Duncan, 2 and of the Supreme Court of the United States in Luther v. Borden and Ex parte Milligan illustrates this. The first case mentioned arose out of the declaration of martial law at New Orleans in 1814. And the fact before remarked upon, that the commanding general and the civil courts came into direct conflict on that occasion, seems to have given to the remarks of the judges an unwonted vigor, and created in their minds a bias which cannot but impair the value, as correct expositions of the law, of the views they expressed. "A motion that the court might proceed in this case," says the opinion, "has been resisted on two grounds: First, that the city [of New Orleans] and its environs were, by gen- eral orders of the officer commanding the military district, put, on the 15th of December last, under strict martial law. * * * * A.t the close of the argument on Monday we thought it our duty, lest the smallest delay should countenance the idea that this court entertain any doubt on the first ground, instantly to declare viva voce (although the practice is to deliver ova opinions in writing), that the exercise of an authority vested by law in this court cannot be suspended by any man. I. Hare, Constitutional Law, Vol. 2, p. 973. 2. Martin (La.), Vol 3, O. S., p. 530 et sea. 51 6 MILITARY GOVERNMENT AND MARTIAL LAW. « "In any other State but this, in the population of which are many individuals who, not being perfectly acquainted with their rights, may easily be imposed upon, it could not be ex- pected that the judges of this court should, in complying with the constitutional injunction, in all cases to adduce the reasons on which their judgment is founded, take up much time to show that this court is bound utterly to disregard what is thus called martial law, if anything be meant thereby but the strict enforcing of the rules and articles for the government of the Army of the United States established by Congress, or any act of that body relating to military matters, on all individuals be- longing to the Army or militia in the service of the United States. Yet we are told, by this proclamation of martial law, the officer who issued it has conferred on himself, over all his fellow-citizens within, the space whicli he has described, a supreme and unlimited power, which, being incompatible with the exercise of the functions of civil magistrates, necessarily suspends them. * * * * Under the Constitution and 1 aws of the United States, the President has a right to call or to cause to be called into the service of the United States even the whole militia of any part of the Union in case of invasion. This power, exercised here by his delegate, has placed all the citizens here subject to military duty under military authority and mili- tary law. That is conceived to be the extent of martial law, beyond which all is usurpation of power." 598. In the light of the decisions of the Supreme Court of the United States in Luther v. Borden, Ex parte Milligan, and the numerous instances where the military during the Civil War assumed the responsibility of enforcing martial law, the Presi- dent's proclamations to the same effect, as well as the experi- ence of the States, of the Union during the last half century, this opinion of the I/)uisiana' Court seems strangely wide of the mark, and indicates a surprising lack of appreciation of the nature of that law. 1 See ante, Sec. 384, Chap. XVII. ; post, Sees. 602, 603, 604. \ ADMINISTRATION OF MABTIAL LAW. 517 \ 599 Unquestionably the judges were honest in their ex- pressed convictions. But they did not state the law.^ The cause of action they were passing upon arose when the city was under martial law and the enemy near at hand were menacing descent. Whatever diversity of views may exist regarding the legality of martial law on other occasions, repeated decisions of the Supreme Court of the United States have established be- yond cavil that martial law is legal under such circumstances ;i and being so, the functions of all civil tribunals were suspended temporarily except in so far as the military commander might require their assistance. If the I/Ouisiana judges were right, then the act of the Rhode Island I/Cgislature declaring martial law was void; the decision of the Supreme Court of the United States sustaining its action was judicial tyranny; and the de- liberate judgment of the same court in Ex parte Milligan, that under just such circumstances as surrounded New Orleans in 1814-15 martial law was justifiable, was an act of judicial usur- pation which ruthlessly trampled under foot the most sacred rights of the citizen ; the proclamation of the President institu- ting martial law in Kentucky, and the various orders of mili- tary commanders establishing martial law in the same State, and in Missouri, Kansas, Arizona, New Mexico, and other places during the Civil War, were all mere nullities, conferring no rights upon the military authorities, and relieving them of no responsibility for any acts which affected civilians within the proclaimed district. 600. In this age and at this stage of governmental develop- ment it is scarcely necessary to remark that this is not the judi- cial interpretation of the law. The opinion of the l/ouisiana judges belongs to that class of legal theories which would hold the commander liable for destroying the house of a loyal citizen which protected and strengthened the enemy's line of battle, and which would compel him either to keep to the public roads in taking up his position on the field, or be adjudged a trespasser I. 7 Howard, p. i; 4 Wallace, p. 2; 110 U. S., p. 633; 18 Wallace, p. 510- 5l8 MILITARY GOVERNMENT AND MAETIAI, LAW. for treading down while so doing the growing corn by taking a more direct route. Well-meaning people, and jurists even, have held such views. But thej' find no lodgment in the minds of practical men. They are mere vagaries which, even in times past, seldom received and need never receive serious consider- ation from those who are entrusted with the powers and re- sponsibilities of government. 6oi. Nor was the conduct of the Louisiana judiciary in 18x5 regarding the enforcement of martial law consistent in itself. The bar and bench of the city had joined with the other best elements of the citizens in advising the measure. That was when danger was impending. Martial law was enforced; the enemy driven back in confusion; peace returned to bless the land ; and now the judiciary, when all danger is passed, boldly comes forth the self-assertive champion of the citizens whose rights it is asstmied have been jeopardized or disregarded through the necessary measures of that military power which they had invoked to save them from a rapacious enemy. 632. Two recent instances of the use of organized militia to preserve order and protect property wh^n, after long suf- fering, it bad been demonstrated that the civil officials either would not or could not do it, deserve especial notice. One occurred in Pennsylvania in 1902, the other in Colorado in 1903-04. In both cases the governor, acting upon informa- tion officially and accumulatively conveyed to him, called out the State military, in Pennsylvania from the start to act in- dependently of the civil officials, and this became the rule in Colorado after it was shown that the militia could not act efficiently under the orders of the sheriff. In both cases the governor, in calling out the militia, acted in accordance with statutes. In the Pennsylvania case a militiaman, a private soldier, stationed as a sentinel, shot and killed one who came upon that post. In so doing he carried out his orders. The soldier was arrested by a civil official, charged with the homicide, and the case came before the Supreme Court of the State on a writ of ADMINISTRATION OF MARTIAL LAW. 5 1 9 ftabeas corpus, which the court granted, discharging the prisoner harmless. I The court remarked that the order of the governor sending tbe militia into the district created there a condition of qual- ified martial law, and referred approvingly to the views on martial law of the Chief -Justice of the United States in Ex parte Milligan. Qualified, because the military were there only to preserve the public peace and order, and not for the ascer- tainment and vindication of private rights, or other ordinary functions of government. For the latter purpose the courts and other agencies of the law were still available, and only needed the strong arm of the military to preserve that degree of order necessary to enable them to perform their functions. The condition established by calling out the military, within its necessary field of action, was martial law, with all its powers. "The Government," the court significantly remarked, "has and must have this power or perish ; and it must be real power, sufficient and effective for its ends — the enforcement of law, the peace and security of the community as to life and prop- erty." In response to the proposition that either peace or war, with no intermediate state, must prevail, the court re- marked that this was an error, and that the condition of the community under discussion was an illustration of that fact. It remarked that there may be peace for all the ordinary pur- poses of life, and yet a state of disorder, violence, and danger in special directions, which, though not technically war, has in its limited field the same effect, and. if important enough to call for martial law for suppression, is not distinguishable, so far as the powers of the commanding officer are concerned, from actual war. The condition in fact exists, and the law must recognize it, no matter how opinions may differ as to what it should be most correctly called. When the civil au- thority, though in existence and operative for sane purposes, is yet unable to preserve the public order and resorts to mil- itary aid, this necessarily means the supremacy of actual force, the demonstration of the strong hand usually held in reserve 520 MILITAEY GOVERNMENT AND MARTIAL LAW. and operating only by its moral force, but now brought into active exercise. The effect of martial law is to put into opera- tion the powers and methods vested in the commanding oflScer by military law; so far as his powers for the preservation of order and the security of life and property are concerned, there is no liiiit but the necessities and exigencies of the situation, i This case cleared the atmosphere for the Colorado cases, which in all important respects were of the same nature. The Governor of Colorado announced in some instances that a condition bordering on insurrection and rebellior exist- ed, and in others that such insurrection and rebellion actually prevailed. Applying the principles of the law as enunciated by the Pennsylvania Supreme Court, the situation should have been, from a judicial standpoint, as easily disposed of as was that in Pennsylvania. This, however, did not piove to be the case, due to the indisposition of elective judges sometimes to thwart the wills of those whose franchises put them on the bench. The condition of affairs, so far as certain judges were concerned, was precisely that described by the Supreme Couit of the United States as dooming in advance to failure efforts to maintain the laws through State agencies. 2 However, this was not the general tendency of the Colorado judiciary, which upheld as a rule the executive power, citing the precedent of the Pennsylvania case just commented upon. The Circuit Couxt of the United States refused to take jurisdic- tion of certain phases of the contention when appealed to, but its remarks unqualifiedly showed that its sympathies were with the governor, who with firmness and patriotism was establishing the rule of good order in what for a long time had been a lawless and terrorized district of the State. "There is now a governor," said the court, "who is disposed to enforce the laws of the State, and I can only say that the people of the State are to be congratulated upon the circumstance. We I. Commonwealth ■». Shortall, Atlantic Reporter, 55, p. 952 et seq. 2. 158 U. S. Reports, p. 565. ^ ADMINISTRATION OP MARTIAL LAW. 52 I do not sit here to restrain him in the exercise of his authority." This \^ also was a point made by the State judiciary — ^namely, that the governor was responsible for calling out the military; that the law had lodged with him the discretion of determining when the exigency that required this had arrived; and that the judiciary would not interfere in the exercise by another department of the government of a discretionary authority. The attitude of the judiciary in this matter was like that of the Supreme Court of the United States when certain of the so-called Reconstruction Acts came before it for decision. It likewise refused to interfere in the manner in which the Exec- utive Department performed its duty.i 603. The experience in Idaho in 1899 was the same in all essential respects with that of Pennsylvania in 1902. The military were placed in the field after the governor had by proclamation declared, in the maimer by statute made and provided, that a state of insurrection and rebellion existed and for several years last past had existed in a certain county, many officials of which were removed from office because of inability or indisposition to sustain the laws. In due course, as is apt to occur on such occasions, cases arising out of this condition of affairs came before the courts for decision. One was a habeas corpus case, the petitioner alleging summary arrest and detention without due authority. Petition was denied, and the prisoner remanded to military custody. The Supreme Court of the State did not permit its attitude with reference to the great questions involved to remain in doubt. It was of opinion that whenever, for the purpose of putting down insurrection or rebellion, the exigencies of the case demanded it, for the successful accomplishment of this end in view, it is entirely competent for the executive or for the military officer in command, if there be such, either to suspend the writ or disregard it if issued. It would be an absurdity to say that the action of the executive under such I. 4 Wallace, p. 475; 6 Wallace, p. 50; 12 Wallace, p. 174; 13 Wallace, p. 646; 18 Magoon, pp. 234,364. 522 MILITARY GOVERNMENT AND MARTIAL LAW. circumstances may be negatived and set at naught by the judiciary, or that the action of the executive may be inter- fered with or impeded by the judiciary. The action of the governor in declaring Shoshone County in a state of insur- rection and rebellion, and his action in calling to his aid the military forces of the United States for the purpose of restoring good order and the supremacy of the law, had the effect to put into force to a limited extent martial law in said county. Such action, it was declared, was not a violation of the Con- stitution, but in harmony with it, being necessary for the pres- ervation of the Government. These decisions of the Supreme Courts of Idaho and of Pennsylvania are entirely in unison with the decisions of the supreme Federal tribunal in strikingly analogous cases. The use of the regular Army in 1894 during the railroad strikes cut adrift from precedents in this : The governor declared that no such troops were necessary, though an unimpeded reign of terror paralyzed the civil administration and effectually ob- structed the execution of certain Federal statutes of daily importance to the country; hence the President could not send the regular troops under the usual appeal of the State executive under Section 4, Article IV. of the Constitution; hence it was necessary for him to move the Federal military into the State without such apppeal and in spite of the governor's opposition. One Debs, the alleged leader of the strike and the main inciter of the lawlessness, was arrested for contempt of court, and his case went to the Supreme Court of the United States on a writ of habeas corpus, which was denied. The national Govern- ment, the court observed, had provided for interstate com- merce and carrying the mails. These are great national pur- poses. The authority of the national Government was com- mensurate with the duty this imposed upon it. In the per- formance of that duty all the governmental agencies at com- mand of the national Government, military or civil, could be utilized without express statutes authorizing it. If all the inhabitants of a State, or even a great body of them, should ADMINISTRATION OF MARTIAL LAW. 523 combine to obstruct interstate commerce or the transportation of the mails, prosecutions for such offences had in such a com- munity would be doomed in advance to failure. If this were known, the whole interests of the nation in these respects would be at the mercy of a portion of the inhabitants of that single State. There is no such impotency in the national Government. As was the case in certain preceding decisions, this one greatly strengthened the hands of the Government in self- defence, sweeping to one side the idea that great national purposes, sanctioned and provided for by law, were to be thwarted and rendered non-effective with impunity through the machinations of a small but bold and lawless element of the community. I 604. The decisions of the Supreme Courts of the United States and of the States cited evince how the law has set its face against the proposition that government, whether Federal or State, will permit itself to be dethroned, the people it was created to protect in life and property to be deprived of these at the instigation of the malevolent members of society. Each court lays down the rule in no unmeasured terms that govern- ment is not to be chased from the earth because, forsooth, the written law cannot be found prescribing just what the executive power shall do to meet the special emergency; but, a duty to society having been imposed, the executive lawfully rriay make use of every instrumentality, including the military power, to secure the proper performance of that duty. Not only this, but, in case of the State Supreme Courts, the term "martial law" was used without tremor, and it was avowed firmly that such law was right and a legitimate governmental agency to be invoked by the executive whenever the civil administration failed in its duty to the lives, liberty, and property of the people. They declare that such power must exist, to be exercised when necessary, or government must perish, and 1. In re Siebold, 100 U. S. Reports, pp. 371-399. 404-422; /« re Neagle, 1 35 U, S. Reports, pp . 63-5 ; In re Debs, 1 58 U. S. Reports, p. 565. 524 MILITAET QOVBENMENT AND MARTIAL LAW. the executive judges of the exigency. The language of the United States Supreme Court decisions is to the same effect; the identical principles ^are|involved in these, although the term "martial law" is not^of ten found there. That term, how- ever, has ceased to^be pronouncedjwith bated breath, because it is recognized by the law-abiding and law-enforcing com- mLuity as one of the necessary safeguards of government. CHAPTER XXVI. Mart al-I/AW Tribunals. 605. As martial law biings unusual offences, it authorizes also tiibunals suited to their adjudication. In his Principles of Constitutional Law, Judge Cooley remarks that ofifences against martial law and the laws of war, and all acts"'not justified by the latter which are calculated to impede or obstruct the opera- tion of the military authorities, or to render abortive any at- tempt of the Government to enforce its authority, may be pun- ished by military courts and commissions organized either by the President as commander-in-chief, or by the immediate mil- itary commander-, or established under the authority of Con- gress. But these tribunals, he maintains, cannot try ofifences against the general laws when the courts of the land are in the performance of their regular functions -and no impediment exists to a lawful prosecution there. An impediment does exist, however, when martial law is lawfully declared; and this creates an exception to the generalrule obtaining in times of peace, that the military is in strict subordination to the civil power. 1 606. It is not to be denied that the legality of martial-law tribunals has been brought in question. "How," it has been asked, "are they to be organized? What shall be the number of their members? What offences come within their juris- diction? What is their code of procedure? How shall wit- nesses be compelled to attend ? Is it perjury for a witness to swear falsely?" And it has been asserted that none of these questions can be answered, because they are not matter of positive enactment. 2 To this it truthfully may be answered, that long-established custom has fully settled all these questions. They are based I. P. 137. 2. Ex parte Milligan, 4 Wallace, p. 83. 526 MILITARY GOVERNMENT AND MARTIAL LAW. on no more reason than similar questions would be regarding common-law courts, because the latter are not founded on posi- tive provisions of the law. The same objections might be raised also against the whole system of international law, which is not founded on statute. Both common-law courts and mar- tial-law tribunals have the same origin — custom approved by those who have the power to enforce their decrees. With as much reason can ' ' the customs of war " be questioned as can the validity under proper conditions of military commissions. In- deed, these customs and commissions are the counterparts of one another. Yet the former are not based on the written law. They are, however, recognized by statute, every officer sitting on a court-martial swearing to observe the customs of war in the trial of the case in hearing; but, whether recognized by statute or not, they will continue to exist so long as military establishments are maintained. 607. The appellant in In re Neagle took the ground that as there was no statute authorizing in terms a United States marshal to accompany a justice of the Supreme Court on circuit to protect him from bodily harm, a marshal so employed who took the life of one who assailed the justice was not acting under a "law of the United States" within the purview of Sec- tion 753, Revised Statutes. 1 But the Supreme Court of the United States held otherwise, and reaffirmed the oft-repeated doctrine that a duty being imposed by the laws or the Consti- tution on the Executive Department, all the necessary powers followed as of course to render the performance of the duty possible and effective. While there is no express statute au- thorizing the appointment of a marshal or any other officer for the purpose indicated, the general obligation imposed upon the President to see that the laws are faithfully executed, and the means placed in his hands both by law and the Constitution to do this, impose upon him the duty of protecting judges from assault at all hazards when there is just reason to believe that they are in personal danger. No express statute for this 1. 135 U. S., pp. 63-5. MARTIAL-LAW TEIBUNALS. 527 purpose is necessary. All requisite authority flows from the natiure of the duty imposed, i 608. The court had come to the same conclusion in other cases. 2 This reasoning is as applicable when we seek to ascer- tain the authority for instituting summary military tribunals under martial law as in the cases decided by the court. And it throws around officers a protecting shield when in the discharge of their duties that must add greatly to their intrepidity and independence of spirit. 6~>g. A great mass of traditions and recognized practices cluster around, attach to, and form a most important elem.ent of well-regulated armies, which are known as the customs of war. They are the martial legacy of centuries. Many of them go back in antiquity, as do those of the common law, to a period so remote "that the memory of man runneth not to the contrary." 3 This it is which gives the customs of war weight and authority as a code. It is true that some military customs once held in esteem in civilized armies are no longer observed, while new ones have slowly crept in. These changes have been the result of extending Christianity, of education, and advance- ment in the arts and sciences. Precisely similar changes, due to similar causes, have taken and are taking place in the com- mon and in statute law. And as regards the term "military commission " todesignate a martial-law tribunal, while the desig- nation is of modern origin, the tribunal itself, with nature and powers essentially unchanged, has existed for centitfies. 610. The general rule is that authority to appoint martial law courts and approve their sentences rests only with the com- manding general. It is not a power to be lightly dealt with. The exigency may be such as to cause the power to be tiusted to inferiors, yet when it is reflected that these tribunals some- times may have jurisdiction of causes involving life, the lib- erty of the citizen and his entire property, the gravity of the responsibility thus imposed becomes apparent — a responsibility I. Ante, Chap. XXV., Sec. 604. 2. 1 1 Howard, pp . 552 , 104 U. S., 444 ; 125 U. S., pp. 273-80. 3. I Blackstone, p. 76 528 MILITAET GOVERNMENT AND MARTIAL LAW. which never should be placed in subordinate hands except upon occasions of extreme and pressing necessity. This was the rule generally adopted by both the Federal and Confederate services during the Civil War. It is in consonance not only with mili- tary practices, but principles of justice. It has commended itself to the approbation of the military profession, and is illus- trated in the customs of the armies of all civilized nations when called upon to enforce martial law within the limits of their own territory, i 6ii. Martial-law tribunals legally cannot oust courts-mar- tial of jurisdiction conferred by the Articles of War, nor can they assume concurrent jurisdiction in such cases. If martial law be the result of legislative enactment, the offences which properly can be brought before military courts may be set forth in and limited by the statute. But here again only the general pur- pose may be stated, and the details be left to be filled in by the military commander. If the authority, legislative or executive, which institutes martial law reserves causes for trial by the or- dinary civil courts, the military would to this extent be de- barred from assuming jurisdiction. There was scarcely one instance of the enforcement of martial law either North or South during the Civil War — and the instances were many — which did not illustrate these principles. As was said in a case then arising, "military commissions, as a rule, should be re- sorted to for cases whicli cannot be tried by courts-martial or by a proper civil tribunal. They are, in other words, tribunals of necessity, organized for the investigation and punishment of offences which would otherwise go unpunished. "2 612. The jurisdiction exercised by these tribunals is deter- mined by custom modified, possibly, either by statute or the orders of military superiors. In this respect they are on the same footing with civil courts. With respect to the latter it is a well-recognized principle that those originating in the common law have a jurisdiction which is regulated by the common law imtil some statute shall change their established principles; I. 4 Wallace, p. 13. 2. R. R. S., I., Vol. 8, p. 822. MABTIAL-LAW TRIBUNALS. 529 but civil courts which originate by written law, and whose juris- diction is defined by written law, cannot transcend that juris- diction. 1 Nor is there perceived any ground upon which can be based a -well-founded claim that the decisions of martial-law tribunals, proceeding within the sphere of their jurisdiction, are less determinate in character than are those of the ordinary courtSTmartial. Regarding the latter Ivord Campbell has said: "The court-martial having had jurisdiction of the person and the case, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there be such, committed within the sphere of its authority. Its judgments, when ap- proved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest under like circumstances." 2 613. No reason is seen why the principles of responsibility attaching to those who sit on courts-martial should not apply to members of martial-law tribunals. The latter equally with courts-martial are of limited and special jurisdiction. Within the martial-law district these two classes of courts may sit side by side, each taking cognizance of appropriate subjects-matter of adjudication. The members of/^one^class of these tribunals may under these circumstances even drop the official habili- ments of one and take up those of the other with no formality except the reading an order from superior military authority. True it is that the court-martial is a tribunal of both peace and war, while the martial-law tribunal may be more nearly charac- terized as a war-code tribunal only. Yet as the latter deter- mines causes within friendly territory alone, where, except for the disturbances which called forth martial law, the ordinary civil courts would have complete jurisdiction, it is not be ieved that its members successfully can claim immunity from respon- sibility upon any broader principle than'can the members of a court-njartial. There is this in favor of the members of the martial-law court : they act under great difficulties, dealing with I. 4 Cfanch, p. 93. 2. I/ivesof the Chief -Justices, Vol. 3, p. 91. 34— 530 MILITARY GOVERNMENT AND MARTIAL LAW. persons in a manner and with offences which in their nature may be unknown to ordinary times. They sit in judgment because of an imperious necessity ; their conduct amidst such surround- ings is entitled to be viewed with the greatest possible consid- eration; and experience has shown that where honesty and fair dsilinj evideitly characterized their proceedings, even althou^i jurisdiction maybe matter of doubt, both judges and juries have been inclined to give due weight to every circum- stance both in justification and extenuation of their actions. 614. Following the analogies of ordinary criminal courts, i1 has been held by some that martial law tribunals can take cog- nisance only of causes arising within the particular martial-law district where the tribunal sits. It is questionable if this is the true doctrine. n the first place, all such analogies a e forced and unnatu-al. Tiie civil is the court of peace ; the martial-law tribunal that of great disturbance or war. The one is estab- lished by law, either statutory or common ; its procedure is reg- ulated by known rules; its jurisdiction ha' defined territorial limits ; the causes it takes cognizance of are well known. The other, with rare exceptions, is called into being by a military order alone ; its procedure is regulated by the customs which, though well understood in their general bearing, are of variable application; the causes it is to determine a e to a great extent known only to the anomalous condition of martial law; why then should the rules of territorial limits as to jurisdiction be the same? Courts-martial are not so bound. They take cog- nizance of causes wherever they may have arisen, if the par- ties can be brought into the court's presence. Even if the of- fence happen in foreign lands, the transgressor, if subject to the Articles of War, may be brought to account for it here be- fore a court-martial. This has occurred time and again on our Mexican border. Under Sect "on 1343, Revised Statutes, all pe-^sons who, in times of war or rebellion against the supreme authority of the United States, shall be found lurking as spies in or around the hosts or encampments of the armies or elsewhere are subject to MARTIAL-LAW TRIBUNALS. 53 1 trial before a military commission. Let us suppose that there has arisen an extensive rebellion against Federal authority. After the experience of a century, this is not a violent suppo- sition. As a result of this state of affairs it may happen that martial law exists at various places — not contiguous. A person is arrested in one district for having lurked as a spy about the military forces in another and perhaps far-distant district. The evidence against him is complete at the spot where arrested, and is to be furnished by the very soldiers who now have him in custody. Is it to be supposed that he will be emoved back to the vicinity of his crime for trial, when that t ial can be so much more expeditiously conducted at the very place where he wa taken into :u tody? It is apprehended that this would hardly be done. If the py, when arraigned, interposed a plea to the jurisdiction, claiming a right to have his case de- termined at the vicinage where the alleged crime was perpe- trated, would the plea be sustained because of any supposed analogy existing between the rules of p ocedure of martial law and of ordinary criminal courts ? Yet unquestionably, if it were attempted to render him amenable before the latter, his objection would be well taken. The plea, as a bar to trial by the military, would ha dly be sustained. There is no good reason why it should and many why it should not be. Prompt- ness of action, with a determination to do substantial justice as nearly as circumstances will permit, is the rule of the military tribunal. The delay resulting from carrying both criminal and witnesses back to the very scene of the crime would wholly defeat the fundamental idea of promptness so essential on such occasions. It would be useless trouble, because, even if the criminal were thus removed, the military court would not be bound, either as to rules of procedture or evidence, a would a local criminal court proceeding in a case i egularly before it. It might be impracticable thus to carry him back, as if the neigh- borhood of the crime were now held by the rebels. Is it to be supposed in such case that trial either is not to proceed at all, or is to be deferred until the district has been reduced into the 532 MILITAET GOVERNMENT AND MARTIAL I4AW. possession of the legitimate government? This, it is believed, would not be done. In truth, any attempt to shackle tribunals s .ttiag under martial law by criminal -court ru'es and limitations as to jurisdiction would defeat the object for which they are ■n.tituted. The "ormer essay to mete out substantial justice amidst great social disorder ; the latter, in times of peace, dis- penses an exact justice so nearly as human frailties render pos- sible. The former are often compelled to proceed largely upon appearances; the latter seeks to interpose a protecting wall against the errors which appearances often give ise to by requiring consistent and conclusive proof of every essential element of the crime. The former are characteri ed by the nervous energy of executive, the latter by the calm deliberation of judicial action. Each is best adapted to the time, place, and circumstances which envi on and call it into being. Both have proved essential to well-regulated, stable government; to omit either impairs the strength or the benignity of the system; to devolve upon one the duties rightly appertaining to the other leads to confusion in the exercise of authority and invites that very revolution which renders military tribunals necessary; white to impose upon either restrictions as to jurisdiction which peculiarly appertains to the other, regardless of the essential differences of their constitution and the purposes of their being, would fatally impair its efficiency. These must be the principles by which the question of terri- torial jurisdiction of tribunals under martial law is to be tested. Othe wise, the very object for which they are instituted might totally be defeated. Would, for instance, he who had rendered himself amenable to trial in Norfolk, Virginia, while that city was under martial law, but had escaped to be afterwards appre- hended in East Tennessee, also under martial law, have been perniitted to plead to the jurisdiction of the commission sitting in judgment upon his case in the latter district — especially in view of the fact that not long after martial law was proclaimed at Norfolk, that city and the adjacent country was occupied and permanently held by the Union forces ? Again, both the State MAKTIAL-LAW TRIBUNALS. 533 of Kentucky and large portions of the State of Missouri were under martial law during the same period of the Civil War, the result of vast territorial insurrection. Is it to be supposed that one who had fled from martial-law justice in Kentucky and was apprehended in the martial-law district of Missouri, where also those cognizant of the circumstances of his alleged offence had been transferred, would be sent to the former for trial by military commission? It is doubtful if the accused would think of interposing a plea to jurisdiction on territorial grounds, and it is not doubted that, if he did, it would promptly be overruled. 615. So as to the time when the ofifence was committed. If the commission have jurisdiction of the person and the offence, it may proceed, if the offence was committed within a martial law district, even if it was of a date anterior to the proclama- tion of martial law at the place of the trial. A different rule would give immunity to crime at the most critical periods. To be safe, the schemer against that military rule which it has been found necessary to establ'sh over his district has only to remain concealed from view until the regular government is re-estab- lished at that point. Martial law may indeed be existing else- where, under the same general author ty after such re-estab- lishment; but if it were declared of a date subsequent to the offence, the culprit, if this rule were true, would go free. Ap- ply sufch a principle of immunity to the cases before mentioned of martial law at Norfolk, in East Tennessee, Kentucky, and Missouri, and observe to what, results it might lead. Martial rule would lose much of its efficacy. But if he who under such circumstances contemplates offending against the dignity and authority of the powers then in being, knows that he may else- where and at some future period be brought to a reckoning therefor before summary military tribunals, the fact might have a salutary and deterrent effect. 616. Military tribunals, under martial-law authority and in / absence of statutory regulation, should observe, as nearly as may be consistently with their purpose, the rules of procedure 534 MILITARY GOVERNMENT AND MARTIAL LAW. of courts-martial. This, however, is not obligatory. But the rule is based upon the consideration that both species of tribu- nals are in most respects of the same summary character ; that the object in each is rather to arrive at substantial than at a nicely discriminating measure of justice; and that the proced- ure of courts-martial is well understood by those who with rare exceptions compose martial-law courts The customs of courts-martial are the teachings of ages. They have been transmitted from one generation of soldiers to another. While subject to modification, all such changes are watched with a jealous eye by military men. This is because these customs are well adapted to the purpose of securing material justice, being simple in character and in great degree devoid of the technicalities which characterize the proceedings of ordirary courts ; and besides, experience has demonstrated that changes, unless carefully made, are more apt to embarrass than to facil- itate and render certain the administration of justice through military tribunals. 617. In the exercise of the martial-law power a discretion in the choice of means is necessarily allowed. It is essential that the means be proper for carrjring into execution the power con- ferred, and that no act be done and no authority exercised which is either prohibited by statute or unsanctioned by mili- tary customs. Should the conduct of those who compose mar- tial-law tribunals become matter of judicial determination sub- sequently before the civil courts, those courts will give great weight to the opinions of the officers as to what the customs of war in any case justify and render necessary. This is not a new principle. It accords with the practice of civil courts when dealing with questions which have been passed upon by the executive departments, in a particular manner, unchallenged for a considerable period. 1 Here the judiciary have often yielded to executive rulings when the question to be deter- mined was the correctness of the practical construction of the 1 . Cooley, General Principles of Constitutional Law, p. 1 39 MAHtlAL-LiW iRlBUNAIiS. 535 law by the executive departments in the perforinance of their duties. 6i8. After the Jamaica rebellion of 1865 a royal commission was sent out from England to investigate and report upon all the facts in connection with the execution of martial law. The subject of the military courts which had been appointed under the martial-laW power received exhaustive investigation. The commission was Composed of eminent professional men — mili- tary and legal— well qualified to pass upon all questions in- volved. Referring to the martial-law courts, numerous of which had been convened, and which had in many instances adjudged the death penalty for crime, the commission remarked that in fact they were committees rather than courts; and while they proceeded in their deliberations upon principles of natural justice, yet they disposed in a summary manner of all cases brought before them, even thoSe involving the punishment of death. The "committees" here referred to are the "military com- missions " of the United States and other nations. And while not bound by the Articles of War, from which, in the absence of statutory provisions, they derived no authority, yet they were duly constituted martial-law tribunals. Their members were sworn to the faithful performance of their duty; they heard evidence, deliberated thereon, and determined causes. Their origin was military; and in absence of instructions froin the convening authority or statute, it was both natural and proper that in conducting their proceedings they should observe the rules of courts-martial practice. 1 It took the British authorities a gp6d deal longer to straighten Out this matter than it did those of the United States, but at last they have done it. The United States long ago adopted the military commission as its war court; and, in its latest experience in instituting and enforcing martial law in South Africa, the British authorities adopted what was I. Finlason, Martial Law, preface, pp. 16, 36, text, p. 49; Clode, Mili- tary and Martial Law, Chap. 1 1, Sec. 6. 536 MILITARY GOVERNMENT AND MARTIAL LAW. styled the "military court "for trial of cases beyond the civil- court and court-martial jturisdiction. 619. In regard to martial-law tribunals the remark of Lord Loughborough, that "it would be extremely absurd to expect the same precision in a charge brought before a court-martial as is require 1 to support a conviction before a justice of the peace," finds peculiar emphasis. 1 So as to the penalty to be awarded. The situation renders it imperative that martial-law tribunals should be given great freedom of action. In the case of The King v. John Suddis the important point was decid- ed that courts-martial sitting xmder the Mutiny Act and the Articles of War are not bound, in awarding sentences, to ad- here to or observe the limits of punishment permissible for the same offences by ordinary criminal courts administering the laws of England. 2 Such also is the common practice in the Un'tel States; even the 97th Article of War, which autho izes confinement ia the penitentiary, does not limit the punishment to what, in analogous cases, criminal courts might inflict. Every consideration which would lead to co ceding such free- dom of action to courts-martial under statutory authority, ap- plies yet more strongly to military commissions under ma tial law. This must be so in the nature of things. The effect of the lawful declaration of that law is to suspend and exclude, so so far as the power inaugurating it may determine to be neces- sary, the ordinary laws of this land. It follows that the punish- able offences need not be common, or statutory, law offences, still less that the penalties inflicted should be those only which, in ordinary times, are suited to these offences.3 620. In point of fact, it is only the graver instances of the institution of martial law that warrant a military commission being organized to try cases. It would have been so, for in- stance, in Kentucky and Missouri during the Civil War. These were occasions when large geographical districts were involved, I. Grant v. Gould, 2 H. Blackstone, p. 69; /n re Poe, Barnwall & Adolphus* Reports, Vol. 5. 2. East Reports, p. 306; Fialasoa, Martial Law, p. 104. 3. Finlason, Martial Law, p. loi. MAKTIAL-LAW TRIBUNALS. 537 the population extensive, and the condition of affairs a com- bination of insurrection and war regularly conducted, either in the immediate theatre or adjacent thereto ; they were occasions, therefore, when martial-law power was demanded in amplest manner, including the instrumentality of military commissions. The same also would have been true when martial law was de- clared in Rhode Island. Such, however, has not been the ordinary case when martial law has been given sway within the boundaries of the United States. These occasions have, as a rule, resulted from local commotions, confined directly to limited districts, extending no farther than the utter breakdown of the civil jurisdiction to meet the ends of government, either through terror inspired by law-breakers, or sympathy with the latter by officials who depend upon the lawless for their tenure in office. Under these-/: circumstances of martial-law enforcement, the situation has not been held to warrant the invoking the military commission. The privilege of the writ of habeas corpus may be and some- times is suspended; the military power, although it may be called out to assist, generally rises superior to the civil author- ity; still the bringing the evil-disposed before courts is generally postponed until the civil com^ts again properly can resume their functions. In English experience the case is somewhat different. Under that Government' the cases of instituting martial law are less numerous, and that instrumentality is reserved until the occasion is one so strikingly similar in its incidents to a state of war, growing out of rebellion, that the adoption of warlike methods of meeting the difficulty has fully been de- termined upon and are put into practice. Hence the military court always can be expected to form an incident in the exe- cution of martial law under English jurisprudence. 621. It is a principle that the accused always must have a fair trial, taking into consideration the circumstances surround- ing each case. Keeping this in view, military commissions may so vary their procedure as to adapt it to any situation.^and may 538 MILITARY GOVERNMENT AND MARTIAL LAW. extend their powers to any necessary degree, not only to pumsb offenders, but by the moral effect of their proceedings deter others from indulging in forbidden acts at these unpropitious moments when the bonds of government and society are al- ready loosened. The rniUtary commander decides upon the character of the military tribunal which is suited to the oc- casion, unless, as rarely happens, this is settled by statute, and his decision is final.' Nor have well-affected loyal civilians anything to fear from this. 622. There could not exist a more erroneous apprehension than that miUtary men are anxious to exercise martial-law powers over the civil community. There is connected with it neither glory nor even professional credit for them, and the duty involves many weighty responsibilities. With rare exceptions, arising out of the peculiar circumstances, roihtary men seek to support the civil authorities rather than act alone and inde- pendently of them in civil affairs. It is true that many civ- ilians think otherwise. They look with apprehension at the appearance of the military upon the scene as the signal for all law to be trampled under foot. Generally this will be found to be the effect of prejudice. If they will take counsel of the facts of modern history in free governments rather than of groundless fears, they will realize that military officers assume the responsibilities of martial law but reluctantly, after the civil authorities have signally failed to meet the ends of gov- ernment, and it becomes necessary to have some powerful and sufficient substitute to maintain order in. the distracted district, r-*. 623. Except in the presence of an enemy upon the theatre of warlike operations, or in the immediate vicinity thereof, the miUtary do not take the first steps towards instituting martial law. That is done by the civil officers making an appeal for protection and assistance, or even the temporary assumption of all authority by the military. Not only do soldiers acknowl- edge on proper occasions the subordination of military to civil authorities as being a cherished principle of our governmental I. Finlason, Martial Law, preface, p. i5. MAKTIAL-IAW THIBUNAL8. 539 polity, but they take pride in and are ever ready to maintain it, The danger is not serious that those who thus have a just appreciation of the true relation of civil and military authority, and who with arms in their hands stand ready to uphold the supremacy of the former if necessary, will often be found seek' ing to overthrow established civil institutions, and rear upon the ruins for ever so brief a period the rule of military power. When, therefore, these officers, as members of military tribu- nals, have placed iu their keeping, in the regular course of their duty under martial law the lives, liberty, and property of their fellow-citizens, it scarcely need be apprehended that they wantonly will abuse their temporary authority. 624. Regarding rules of evidence which should be observed in their proceedings, it may be remarked that martial-law tri- bunals are not to be bound either by common-law rules or those wh ich ordinarily govern in courts-martiaL Here, howeyer, as in their procedure, the rules which are observed by courts-martial may well be taken as a guide. The reason why common law rules of evidence do not bind martial-law tribunals is not that they are not, under ordinary circumstances, well adapted to the development of truth- They are so adapted; the wisdom of generations has built them up, not only as a strong protection to the accused, hut a means of eliciting truth. Yet the extreme nicety of the distinctions which characterize those fules, and which, as a protection tq innocence, is their chief ornament, renders them inapplieable fojr courts proceeding by more summary methods. 625. As a general thing, military men are but imperfectly versed in the rules pf evideuce before criminal courts. Famil- iarity with these requires much study and practice. It is im- possible for them to acquire more than a general knowledge of their fundamental principles. Otherwise it were necessary for officers to renounce their profession as soldiers and become law- yers. Sad indeed will be the day for any military service when such ideas predominate. While members of military tri- bunals engage in legal disputations the time for action passes 540 MILITARY GOVERNMENT AND MARTIAL LAW. and distiplitie is sacrificed; Tbencefotward hi that country k perimanent r.-ilitary- establisliment is a useless eipense. It should ' be abolis'hed; and the nation depend for both defence and offence upon the armed levies dirawn out from among its citizens as the exigencies of war requ'ife. Fortunateiy, the view that officers are to be lawyers first and soldiers after- wards does iibt extensively prevail. The results which have followed occasional atteiripts to carry this perveirse idea into practice have but the more strongly demonstrated its inherent viciousness and its demoralizing effect upon the military sjrs- tem. Military courts endeavor to strike in the liiost dire<^t way at the merits of the case before them': Understandiiig these, they are then prepared to deal oUt that ineasure of justice which the case demands. And it is a fact which candid men admit that they quitie'as often succfeed as their more learned coadjutors of the civil branch of the judiciary. A coiirt-martial is not a' pleasant tribunal for a guilty man to face, no matter how ably he may be defended; whereas, oh the other hand, the innocent may with confidence fely upon its verdict, how- ever ably the prosecution be conducted. If there have been exceptions, their conspicuousness but emphasizes the general- ity of the rule. 626. It being true that only the plainiest, most easily under- stood, and generally applicable of the rules of evidence are fol- lowed by courts-martial sitting under the Articles of War, and then not as of binding force, but simply as directory of their proceedings foi the sake of regularity and the dispatch of bus- iness, so much the more is it necessary that this principle be observed in the proceedings of martial-law tribunals. 1 The former act under a well-established code, either statutory or the common law of the Army, and have therefore a feature of permanency and stability which might be held as to them to render rules of evidence of more binding efficacy; the latter, being the tribunals of the great law of necessity, must in the nature of things adopt for their own guidance whatever rules I. Finlason, Commentaries, Martial Law, p. 49. ! f i MAHTIAL-IiAW TKIBUNAL6. 541 will elicit with greatest facility and certainty the highest de- gree of truth that the extraordinary occasion will permit. 627. Such, likewise, are the views of military authorities in other services. Mr. Clode, after remarking that maitial law wUl sometimes be established, thereby rendering some substi- tute for the regular courts of law a necessity, observes regarding the martial-law tribunal: "It should proceed upon charges based on the known criminal law, and upon sworn evidence given in the presence of the accused. What he has to say in his defence should be patiently heard, and a record complete, so far as circumstances will permit, should be made of all the proceedings. The analogy of the military code is to be fol- lowed, not as binding, but as directory, for the jurisdiction of the court is to be upheld, not by the authority of the Mutiny Act, but by the supreme power of the executive government to administer justice at all times. "i 628. The rules of procedure and of evidence of martial-law tribunals may seem crude when judged by the common-law standard. But it must be remembered that these tribunals are convened only when ordinary methods have ceased to be ap- plicable, and therefore that which in the normal condition of society would be irregular becomes regular and highly com- mendable. By eschewing wherever they find it expedient to do so common-law court processes, particularly in regard to matters of proof of alleged offences, martial-law tribunals are enabled to deal out promptly, effectively, and in a manner suited to the times in which they hold sway, a crude it may be yet an even-handed measure of justice well suited to the pro- tection of the lives, liberty, and property of the citizens, and yet uphold and vindicate the power of the law. 629. Generally in the enforcement of martial law the mil- itary will content themselves simply with preserving order and defending their dignity and authority from atttack, delivering civilians who may be arrested over to civil officers for trial I. Military and Martial Law, p. 169; and see Finlason, Martial Law, p. 359- 542 MILITARY GOVEKNMENT AND MARTIAL LAW. when the courts are reinstated. Still, as instanced in Ireland in 1798 and 1803, in Jamaica in 1865, and in our own country during the CivU War and the reconstruction periods imme- diately following, there may and do arise odcasions when such tribunals justly may be invoked to supply the energy arid cef- tainty in the administration of penal affairs which have becOtne necessary and which cannot be furnished by the ordinary judicial sjrstem. CHAPTER XXVII. RBSPonsibiwty of Commanders — Martial Law. 630. Coming now to the question of responsibility of officers whose duty it is to enforce martial law : First, the necessity for its enforcement, if questioned in a court of law, must be made out. This is a circumstance to be determined by the jury from all the facts in the case, under instructions as to the law from the court. In this work the necessity is assumed to have been established. The question then recurs as to the rule of responsibilty governing those who enforce the law. 631. It is necessary to remember that these officials are not mere intruders in the domain of authority ; nor are the questions arising those between parties as private ind'viduals. The rule in such cases is, that so long as the officer does not transcend the limits of his jurisdiction in the exercise of discretionary authority, he cannot be rendered liable unless it be shown that he maliciously abused the power confided to him. 1 Under these circumstances, if a military commander honestly exercises his judgment and has reasonable grounds for believing that the necessity exists for enforcing martial law, he cannot be held criminally liable for what is don; under it in accordance with military usa;e. At the ame time it is recognized as ai un- benling r ile of law that the exer:ise of military power, where the rights of citizens are concerned, shall never be pushed be- yond what the exigency requires. 3 632. " Whih an officer acts within the limits of that discre- tion," said the United States Supreme Court, "the same law which gives it to him will protect him in the exercise of it. But for acts beyond his urisdiction, or attended by circumstances of excessive severity, arising from ill-will, a depraved disposi- I. 7 Howard, p. 130; 12 Howard, p. 404. 2. Finlason, Commentaries on Martial Law, p. 50. 3. 91 U. S. Reports, p. 712. 545 544 MILITARY GOVERNMENT AND MAETIAL LAW. tion, or vindictive feeling, he can claim no exemption, and should be allowed none under color of his office, howevei ele- vated or however humble the victim. When not offending under such circumstances, his justification does not rest on the general ground of vindicating a trespass in private life, and between those not acting officially and not with a discretion, because, then, acts of violence being first proved, the person using them must go foiward next and show the moderation or justification of the blows used. The chief mistake below was looking to such ca-'es as a guide, for the justification rests here on a rule of law entirely different though well settled, and is that the acts of a public officer on public matters within bis jurisdiction, and where he has a discretion, are to be presumed legal until shown by others to be unjustifiable. This, too, is not on the principle merely that innocence and doing right are to be presumed till the contrary is shown; but that the officer, being entrusted with a discretion for public purposes, is not to be punished for the exercise of it unless it is first proved against him, either that he exercised the power confided without his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or willful oppression, or, in the words of lyOid Mansfield, in Wall V. McNamara, that he exercised it as if the heart were wrong. In short, it is not enough to show that he committed an error in judgment, but it must have been a malicious and willful error." 633. This case arose from a naval officer, Wilkes, while on a distant, foreign station, having inflicted corporal punishment upon a sailor, Dinsman, who after their return to the United States instituted suit against the officer, resulting in a verdict for the plaintiff. This the Supreme Court reversed, holding that, for all that appeared on the record, Captain Wilkes had but done his duty. The opinion is replete with important principles affecting executive officers called upon to exercise their judg- ment in positions of responsibility. It was observed in the opinion that Captain Wilkes' duties were imposed upon him a^ a public officer, and required him to RESPONSIBILITY OF OOMMANDEES — JiAETIAL LAW. 545 exercise a disc etion in their execution. The position of the officer in such ca"es becomes quasi judicial and is not minis- terial. It is well settled that all judicial fficets, when acting on subjects within their jurisdiction, are exempt from civil pros- ecution for their acts, i It was especially propei not only that an officer situated like Captain Wilkes be invested with a wide discretion, but upheld in it when honestly exercising and not transcending it. When so situated, an officer's reasons for action one way or another are often the fruits of his own obser- vation, and not susceptible of technical proof on his part. No review of his decisions, if within his jurisdiction, is conferred by law on either coiu-ts or juries or subordinates. The case being returned and again coming up for decision, the Supreme Court remarked that the whole matter turned upon the motive which induced the officer to inflict the punish- ment. This question was one exclusively for the jury. If they believed, from the whole testimony, that the defendant, in all the acts complained of, was actuated alone by an upright intention to maintain the discipline of his command and the interests of the service in which he was engaged, he wa§ -not liable in damages. If, on the other hand, they found that the punishment was in any manner or degree increased or aggrar vated by malice or vindictive feeling towards the plaintiff, Dinsman, or a disposition to oppress him, then he was entitled to recover. 2 634. It is fortunate that there exists a judicial tribunal, the court of last resort, imbued with a just appreciation of tk^^ ne- cessity for sustaining executive ofiicers in the performance of their duties ; a cotat of so elevated a station, with such a sweep of the legal horizon, that it can see not only statutes, bu,t their intent as well, and with the courage to give them effect. No abler exposition of the principles which form at once the guide and protection of officers is anywhere to be fotmd than in the opinions cited. I. iiJohnson(N. Y.), p. 113; Scott's Digest, p.' 377 (d); 11 Johnson (N. Y.), p. 160. 2. 12 Howard, p. 404. 85— 546 MILITARY GOVERNMENT AND MARTIAL LAW. 635. That such officers must be supported, so long as they remam within the limits of their authority, will appear upon even slight consideration. The legislature makes the laws; the judiciary, constitutionally, pass upon them; the executive en- forces them. The latter it is which comes in ditect contact with the people and upholds the prestige and power of govern- ment. Impair the efficacy of the Bxecutive Department and to that extent the energies of government are paralyzed. Neither a legislature nor a judiciary is at every instant of time abso- lutely essential to government ; in times of great peril they may loi the time be swept away, but no gbverftinent could exist for a moment without an executive. Hence the importance of having a clear understanding at all times of the rights, duties, and obligations of its officers. 636. There exists no difference in principle as to the rule of immunity for acts of military officers in the line of their duty, whether that immunity be set out affirmatively in statute or results from long-established custom — the common law of the Army. 637. The rules of official responsibility are applicable under martial law as elsewhere. The comander cannot evade a just liability for his acts, yet upon every legal and equitable prin- ciple he is entitled so long as he does not abuse his power, to every consideration due to the difficulties of bis situation. Our safeguard against the misuse of power will not be found in deny- ing that officers may act, thus depriving ourselves of the bene- fit of that power, but in holding them to a strict accountability. 1 After martial law has been proclaimed by the proper au- thority, officers engaged in the military service may lawfully arrest anyone whom they have reasonable grounds to believe is engaged in insurrection • or rebellion, and may forcibly enter and search premises where it is reasonable to suppose that such offenders are secreted. 2 I. Whiting.'War Powers, p. 170; General Butler's argument. Ex parte Milligan. 2. 7 Howard, 46. UESPOlSrsiBILITT OF COMMAlJDEaS — MAEIIAL LAW. 547 638. Early instances of military commanders of United Stated, forces being held liable for an exercise of power over civiliaiis, even in face of the enemy, are not wanting. But the judiciar determinations in these cases must be considered as having betn reversed in more recent times. 639. Atnong the instances growing out of the War of 1812, in which thfe power of officers to try civilians for alleged offences agajnst the well-being of the service was judicially passed upon, two cases arising in northern New York are especially inter- esting. The first arose from the circumstance that one Shaw, a civilian, was ai rested fifteen miles from Sackett's Harbor, an important military station on the lyakes, and which then was occupied by the American army operating against Canada. He was surrendered into the custody of Smith, the commander of the atmy there. The charges alleged against Shaw Were: ( 1) exciting an insurrection against the authority of the Uni- ted States; (2) violating his parole; (3) furnishing the enemy with necessaries ; (4) being a spy. It did not appear that the conduct of the military commander was harsh or oppressive. But the New York Court of Appeals, before which the case finally came, emphasized the fact that it was the principle in- volved which rendered it important. If the military officer were justified in doing what he did, the court did not see but that every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power. Judg- ment, which in the trial below had gone against the military commandei, was therefore affirmed. Regarding this case it may be observed, however, that when Shaw was arrested and tried by court-martial, the 56th, 57th, Both, Stst, and Sad of the Rules and Articles of War were in force. 1 Article 56 made punishable by death or otherwise, as a court-martial might direct, the offence of relieving the enemy by money and victuals, whoever the guilty party. Article 57 de- nounced the same penalty against whomsoever should be con- victed of holding correspondence with the enemy or giving him I. Act approved April 10, 1806, Chap. 20. 548 MILITABY GOVEHKMBNT AND MAETIAL LAW. intelligence. The terms of the law, which remain michanged to this day, are comprehensive; they except no one. It never can be permitted that exceptions should be made. The safety of the country will not admit of it. Yet these are the alleged offences that Shaw was court-martialed for. As to the alleged offence of being a spy, the court of appeals remarked that the court-martial had no jurisdiction of a civilian arrested as a spy; that he must be turned over to the civil courts. Is this true? If so, the commander is left powerless against those persons who approach his camp under the guise of friendship, and then for gold sell information thus acquired to the enemy. What was the object of using the term "whosoever" unless to give courts-martial cognizance of the offences specified, no matter who might be the offenders? The Continental Congress by resolution of October 8, 1777, denounced as traitors all persons who should be guilty of giving intelligence or aid to the enemy. 1 This, too, aftei a case involving the trial of a civilian by court- martial for holding correspondence with the enemy had been reported to and considered by that body. Nor was General Washington of opinion that civilians had any such immunity from coturt-martial jurisdiction, as is evidenced by the trial be- fore a military tribunal of the alleged civilian confederate of General Arnold in his conspiracy. 2 "That these articles were similaily construed," sa)rs Winthrop, "after their re-enactment in 1806 appears from the military orders of the Army of West Lake Champlain in 18 13, in which the two articles were pub- lished for the information and warning of the civil community as 'bein^ equally binding on the citizen as the soldier.' "3 640. During the Civil War the view was adhered to that the Articles of War in question embraced civilians within their pm- view, and many courts-martial were convened to try offenders from that class; their proceedings were appioved and no ques- tion of jurisdiction arose. Finally, the act of March 3, 1863,4 denounced the death penalty against "all persons" found lurk- I. 2 Journals, pp . 281,459. 2. Magazine American History, 1877, p 540. 3. Vol. I., 2d ed., p. 139. 4. Chap. 75, Sec. 38 (Sec. 1343, R. S.l. \ RESPONSIBILITY OF COMMANDERS — MARTIAL LAW. 549 ing as spies in or about the camps or posts of the Army in time of wat,, if convicted thereof before either a court-martial or mili- tary cdmmission. It is difficult to perceive how the term "all persons '\ is of more general application in this connection than "whosoever." Evidently the statute in each case was intended to embrace transgressors of all descriptions who should thus violate the laws of war. And though the civil courts could take cognizance of the civil aspect of the case, it is of para- mount importance that courts-martial may likewise pursue the military. It is necessary that spies, whoever they be, shall speedily be made examples of. This salutary end the sum- mary processes of comts-maitial and military commissions are peculiarly well suited to accomplish. 641. Of course, when a military commander assumes the responsibility of arresting and trying a civilian for being a spy, he should be certain that the case is clear. Otherwise he is liable to answer in damages. It is his duty to prevent spies from carrjdng intelligence of his movements, strength, and plans to the enemy. In the execution of this duty he has nec- essarily to use his discretion as to the means he will adopt. And it would be opposed to all principles of law, justice, or sound policy to hold that officers, called upon to exercise their delib- erate judgment, are answerable for a mistake when their mo- tives are pure and untainted with fraud or malice. Neverthe- less, he is expected to act calmly, to examine into the facts of each case as much as circumstances will permit, and to show that he is possessed of that amount of good judgment and com- mon sense which reasonably may be expected of one in his position. 642. The case of McConnell v. Hampton, the second of the cases just referred to, arose out of the circumstance that General Hampton, commanding the American foices at and in the vicinity of Burlington, Vermont, near the Canadian border, where war was being actively prosecuted, arrested McConnell as a spy, although he was a citizen. He was tried and ac- quitted. There were many circumstances apparently against 550 MILITAKT GOVEKNMENT AND MARTIAL LAW. him; he had been seen in the company of British officers; he was known to be a smuggler of goods across the border; and when interrogated, he made untruthful statements about his suspicious actions to the commanding general. The next year, action for assault and battery being sued out against the gen- eral, the jury rendered a verdict for $9,000 in favor of the plaint- iff. On appeal, a new trial was granted, because of excessive damages, the court remarking that in awarding damages the jury must have overlooked the critical and delicate situation of the defendant, as commander of an army upon the frontiers, as also the very suspicious light in which he must have viewed McConnell's conduct. Looked at from whatsoever standpoint we will, this case does not present many features which the law-abiding citizen will contemplate with pleasure. If it were to be considered as establishing a precedent, the result would be that military com- manders, even within sight of foreign hostile territory, and actively operating against the enemy, would prefer to give spies immunity rather than suffer the consequences of arresting and trying them. General Hampton was in command of an army which had been organized to invade Canada. He was, for this purpose, upon the frontiers of the United States, and it was of the first importance to prevent the enemy from re- ceiving information regarding his army or its njovements. To do this it was necessary that he arrest those whose actions or words gave reasonable grounds for belief that they were in correspondence with the enemy. The law then on the statute- books denounced the death penalty against any person whom- soever convicted by a court-martial of this treasonable offence. General Hampton proceeded, therefore, strictly within the line of his duty when he arrested and tried McConnell under the suspicious circumstances surroiuiding him, Hence it was a case coming peculiarly within the rule before mentioned, as laid down by the Supreme Court of the United States, that a commander, acting as a public officer, invested with certain discretionary powers, cannot be made answerable for any RESPONSIBILITY OF OOMMANDEES— MAETIAL LAW. 55 1 injury, if he does not exceed the scope of his authority and is not influenced by malice, corruption, or cruelty, i 643., Had the general declared martial law in his camp and the immediate vicinity, he would have been justified. 2 He was in command in the face of the enemy, whose territory and mili- tary forces were but a few miles distant. The United States Goverment had entrusted to him the task of defeating the enemy in that quarter and maintaining there the prestige and success of the American arms. No more onerous task could be imposed upon a public officer. Whatever reasonable and usual means were necessary he had a right to utilize for the accomplishment of his purpose. Assuredly it was necessary that he prevent spies from plying their nefarious practices. Had he failed in this, he would have been without excuse if disaster resulted. He could not wait, perhaps for positive proofs of guilt, such as would be necessary in a court of law to convict of treason; but he bad to act upon reasonable cause of suspicion that McConnell was a spy, and in this the attending circumstances justified him. It is well known that military commanders in such situations, while they must avoid the charge of acting oppressively, yet they are required to act promptly and upon evidence which to them at the time seems sufficient, though afterwards it may transpire, that appearances had deceived them. If it were otherwise — if it were necessary that the commander pause in the midst of important operations and carefully examine the evidence upon which spies and others traitorousl}' are plotting with the enemy, in order that he, the commander, may subsequently vindicate his conduct in arresting them before a civil court sitting long after the event, when the pressing necessities of the circumstances which im- pelled the commander to act have disappeared, the hour for action would pass unimproved, the enemy accomplish his pur- pose through the very information which these spies had given him. Had the arrest not been made, the courts might have I. 7Howaa-d, p. 89. 2. 4 Wallace, p. 2. 552 MIIvITARY GOVERNMENT AND MARTIAL LAW. been driven out by that very enemy whose machinations the arrests frustrated. 644. Civil courts should not judge too harshly of the meas- ures taken by military commanders under such circumstances. They should remember that to these measures being taken they may owe it that now they are able to sit undisturbed. Such considerations should prevent their being swayed by ig- norant and popular prejudice. To the credit of the judiciary be it said that they are not as a rule unmindful of these weighty considerations, particularly in the higher branches. 645. The case of McConnell v. Hampton was considered by some at the time as a striking illustration of the independence of American judges and juries in the maintenance of the sacred principle of personal liberty against encroachment, no matter how high the official and social position of him who would assail it. ' Regarded, however, in the light of history, when the passions of the moment have subsided, it will be more apt to impress posterity as presenting the spectacle of a public officer who acted to the best of his judgment in a great emergency being prosecuted therefor, not from considerations affecting the public weal or in order that the just rights of the citizens thereby might be maintained against the attacks of tyranny, but that the forms of law might be used as a screen to further the ends of private vengeance, whetted by the mercenary hope of re- covering heavy damages which the reputed wealth of the dis- tinguished defendant was believed to render possible. The fact that General Hampton was a large property-owner was dilated upon before the court. Every device was made use of to prej- udice the jury. And, as remarked by Lord Campbell regarding the condemnation of Governor Wall, the prosecution of Genera^ Hampton appears not to have been a striking display of the impartiality of the bench, but rather as "an instance of the triumph of vulgar prejudice over humanity and justice.'" "Commanders in the field are under no obligations to take the opinions of judges," says Mr. Whiting, "as to the character 1. Lives of the Chief- Justices of England, Lord EUenborough, p. 18 RESPONSIBILITY OF OOMMANBEES — MAKTIAL LAW. 553 and extent of their military operations, nor as to the question who are and who are not public enemies, nor who have and who have not given reasonable causes to believe that acts of hostility are intended. These questions are by the pai amount laws of war to be settled by the officer in command." i ■ 646. Upon this subject Mr. Pomeroy, in his Constitutional Law, remarks: "Whenever a civilian, citizen or alien, is en- gaged in practices which directly interfere with waging war, which directly affect military movements and operations, and thus directly tend to hinder or destroy their successful result; and when, therefore, these practices are something more than mere seditious or traitorous designs or attempts against the ex- isting civil government, the President, as commander-in-chief, may treat this person as an enemy and cause him to be arrested, tried, and punished in a military manner, although the civil courts are open, and although his offence may be sedition or treason, or perhaps may not be recognized as a crime by the civil code." 2 647. Thus far it has been assumed that officers, in exercising military authority under martial law, keep within the limits of their jurisdiction, if not as defined by statute, yet as recognized by custom. So long as this is done they deserve, as they gen- erally will receive, not only the support of their superiors, but of the civil community and authorities. 648. The question as to what is within an officer's jurisdic- tion under martial law may not be well settled. It is seldom that statutes confer such authority. The Supreme Court de- cided that a state of war existed in Rhode Island when martial law was declared there, hence those entrusted with its exe- cution were warranted in enforcing the laws of war. When Congress, through the Reconstruction Acts, established martial law over certain States, only the more general powers of the military commanders were defined. The latter went for the great mass of rules by which they were to be governed to the maxims, traditions, and customs of the military service. In a I. War Powers, 10th edition, p. 173. 2. Sec. 714. 554 MILITABY GOVERNMENT AND MARTIAL LAW. case of martial law without legislative sanction, but which results from circumstances, it will be for officers who enforce it to lay down the rules by which the people are to be governed ; and, if this be not done, it only remain to apply to tbe civil the ordinary rules for governing the military community. 649. "One should always bear in mind," says Dicey, "that question, whether the force employed [under martial law] was necessary or excessive will, especially when death has ensued, be ultimately determined by a judge and jury, sitting in quiet and safety after the suppression of a riot, and their judgment may differ considerably from that formed by a general or magistrate, who is surrounded by armed rioters and knows that any mo- ment a riot may become a formidable rebellion, and the rebel- lion, if unchecked, become a successful revolution." 1 This is necessary as a restraint upon unwarranted use of temporary authority. But in passing upon the acts of executive officers under these circumstances, every consideration must be given to the fact that they were compelled, upon trying occasions, when they had little time foi reflection, and events of giavest importance hung upon their promptly taking decisive action. If they acted honestly, with an eye single to the best interests of the service and government, it never can be made a basis of a claim for vindictive damages that they committed an error of judgment. 2 650. It is not meant by this that United Stalfes officers must, of necessity, defend themselves before the State courts. Con- gress has provided for this case. Section 753, Revised Statutes, reads as follows: "The writ of habeas corpus shall in no case extend to a prisoner in jail unless when he is in custody under or by color of the authority of the United States; or is committed for trial before some court thereof; or is In custody for an act done or committed in pursuance of a law of the tjnited States^ or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution, or of a law or I. Law of the Constitution, p. 268. 2. 3 Bissell, 13; i Abbott, pp. 212-45. RESPONSIBILITY OF OOMMANDEES— MARTIAL LAW. 555 treaty of the United States." Appeal lies finally in such cases to the Supreme Court of the United States. It cannot be doubted that the intention and effect of this law is to witbdiaw the Fedetal question, on which a petitionei un- der the act claims justification and exemption, away from the State courts for full and final determination by the Federal judge, and to discharge the petitioner from State custody when he establishes by proof to the satisfaction of the Federal judge that he is entitled to his discharge. In this case the necessary theory of the law is that he is to be deemed innocent; that he has committed no crime; that he has only done what the supreme law of the land has required him to do. If, however, he fail to make out his alleged justification under Federal authority, then he is remanded for trial on the charge made in the State Court, i 651 . It has been judicially decided, as before remarked, that the phrase "a law of the United States," in Section 753, R. S., does not necessarily mean a statute law. It means unwritten law as well. This construction is important in connection with the exercise of martial-law authority. Commenting upon the language of the Constitution, that the President "shall take care that the laws be faithfully executed," the Supreme Court says : "Is this duty limited to the enforcement of acts of Con- I. 135 U.S., pp.40-76; /»re Neagle. NoTB. — The case in In re Neagle was this : A justice of the Supreme Court had punished certain parties — ^man and wife — for contempt com- mitted in presence of the court. They were known desperate characters, and vowed vengeance upon the justice. The attorney of the United States, in view of the premises, took measures to protect the justice when next time he went on duty in that circuit. Neagle was appointed a deputy marshal and put upon the service of defending the justice if attacked. The assault being made, as was anticipated, Neagle slew the assailant. Being arrested by the California State authorities on the Charge of murder, Neagle petitioned the United States Circuit Court, under Section 753, R. S., for a writ of habeas corpus and a hearing before the latter court. The court granted the petition and discharged the accused. The State ap- pealed, and the judgment of the Circuit Court was affirmed by the Supreme Court of the United States. 556 MILITAEY QOVEENMENT AND MABTIAL LAW. gress or of treaties of the United States according to their eoi- press terms, or does it include the rights, duties, and obligations? growing out of the Constitution itself, or international relations, and all the protection implied by the nature of the Government under the Constitution?" The argument of the court, upon •which it based its opinon, was that the latter view was the correct one, and consequently that the phrase "law of the United States" in the statute embraced acts taken in pursuance of the injunction to "see that the laws were faithfully executed," if they were necessary and proper to that end, even although they were not prescribed in the letter of the law equally as though they were enjoined and fully set out in the statute- book. 1 The ground was taken in no unmistakable manner that a written law was not necessatily meant by the statute (Section 753), but that any obligation, fairly and properly in- ferable from the Constitution, or any duty of an executive officer to be derived from the general scope of his duties under the laws of the United States, is "a law" within the phrase "a law of the United States," contained in that section. 2 652. Not only are United States officers protected by the Federal power when they are arrested for crimes, provided there is a question involved arising under the interpretation here given to "laws or Constitution of the United States," but in civil suits they may likewise have the benefit of trial before Federal tribunals. This was not true down to March 2, 1833. Prior to that time all persons, in either the civil or military service of the United States, were left to the jurisdic- tion of State tribunals for alleged violation of local laws, and the only source of relief was through writ of error from the Supreme Court of the United States for the correction of any mistake that might have been made in point of law. By act, March 2, 1833 (4 Statutes at Large, 632, Chap. 57), came the first relief; and, in certain cases, revenue officers, proceeded against in State courts, were entitled to have their causes transferred through writ of habeas corpus for determination before the I. 135 U. S., pp. 40-76. 2. Ibid., p. 79; Lamar, J., and Fuller, C. J., dissenting views. RESPONSIBILITY OF COMMANDERS— MARTIAL LAW. 557 Federal tribunals. This was followed by Section 5, act March 3, 1863, which provided that any suit or prosecution instituted in a State court for an act done by virtue of an order of the President, or under color of his authority, or that of an act of Congress, might be removed to the Circuit Court of the United States of the district, and that thereupon the jurisdiction of the State court should cease. This act by its terms applied only to causes arising during the then existing rebellion. Its terms were afterwards modified, but not to the prejudice of the Federal officers (act May 1 1 , 1866). Finally, we have the act of March 3, 1875 (25 Statutes at Large, 433), which interposes an obstacle to the prosecution of Federal officers in the State courts in all controversies arising under the Constitution and laws of the United States by providing for the transfer of causes to the circuit court embracing the district where suit is brought. The whole tenor of the act shows conclusively that it was intended, at the option of the defendant, to avoid the effect of local prej- udice that might unconsciously affect a State court by giving a Federal officer, there pursued, the right to be heard in a Federal forum.^ 653. It may be easy, the hour of danger and threatened an- archy having passed, quietly to sit down under the protection of vindicated law and point out alleged errors which miUtary authorities may have fallen into in those trying times. But it must not be forgotten that calmness and quietude do not, as a rule, attend the enforcement of martial law, or if so, it is be- cause the military power is bein«g put forth to crush out con- cealed conspiracy, which, while not disturbing the surface of affairs, yet is more dangerous, perhaps, to the community and to good government than open insurrection. At such times the military authorities must act with promptness, or they will be too late for any useful purpose, either repressive or deterrent. They must act with firmness, moderation suited to the occasion, and that degree of discretion which reasonably may be expected of public officers in their stations; but they must not hesitate I. Hare, Constitutional Law, Vol. 2, pp. 1082-84; see ante, Sec. 162. 558 MILITARY GOVERNMENT AND MARTIAL LAW. to act with precision and dispatch when the hour of action arrives, or all is lost. 654. The military authorities proceed to the extremities of martial law to preserve society and government from some great danger, either present or immediately impending. They may, indeed, sit supinely and let disorder and treason run their course. They may plead in extenuation of this that they are not called upon to interpose the military arm in the regulation of civil affairs. In such an emergency the civil power is left to struggle with disturbing elements beyond their ability suc- cessfully to manage. As a result, society is distracted, the ordeily conduct of affairs impeded, and the people deprived, for the time being, of protection to person and property. By adopting this course the military would run no risk of prose- cutions for assumption of authority. But would it be the patriotic course? Would it be that which the law-abiding portion of the community would have them adopt? If not; if those who are interested in maintaining and perpetuat- ing good civil government piefei to have the military in- tetfete in those great emergencies which sometimes arise, and with which the ordinary civil authorities cannot contend, they must see to it when the soldiers — not from love of power, but from public-spiiited motives or a sense of duty — do inter- pose, that they are not afterwards unreasonably pursued by civil actions because the m.easures they then adopted might not in all instances be susceptible of a strictly technical defence under the rules of the civil judicature. This may be considered certain: If this course be pursued towards them in one in- stance, their military successors will be very cautious how they incur similar liabilities. 655. Ultimately the respoti dbility must rest upon those en- trusted with the civil administration to determ.ine upon such occasions whether it be better to permit accumulating dangers to run their course, at whatever sacrifice of law, order, life, and property, until license has spent itself and civil government can again properly perform its functions, or to make way for the military more speedily to restore the civil power, even if this RESPONSIBILITY OF COMMANDERS MARTIAL LAW. 559 costs the temporary forefeiture of a portion of the rights, privi- leges, and immunities of the citizens involved. This is the case of ordinary rebellion, insurrection, or disturbances which set at defiance the powers of government over districts more or less extensive. When open war exists, and the commander within his own territory is operating in face of the enemy, his Uberty of action is greater, It is then for hiiri to decide what meas- ures, restrictive or suppressive of civil authority, the success of his military movements may render necessary. Not that he may even then wanton with power at the expense of his fellow-citizens. Far from it. But, having exercised his ac- knowledged right of self-determination as to what is necessary for military success under the circumstances, even though this include martial law in his immediate vicinity, he is to the fullest entitled to every consideration which springs out of a charitable construction of his act^ when viewed in the light of the dangers surrounding and responsibilities devolving upon him at the time. 656. In Commonwealth v. Shortall^ the Supreme Court of Pennsylvania remarked: "While the military are in active service for the suppression of disorder and violence, their rights and obligations as soldiers must be judged by the standard of actual war. No other standard is possible, for the first and overwhelming duty is to repress disorder, whatever the cost, and all means which are ilecessary to that end are law- ful. The situation of troops in a riotous and insurrectiohary district approximates that of troops in an enemy's country, and in proportion to the extent and violence of the overt acts of hostility shown is the degree of severity justified in the means of repression. The requirements of the situation in either case, therefdrej shift with the circumstances, and the same standard of justification must apply t6 both. The ofaly difference is the One already adverted to— the liability to sub- sequent investigation in the courts Of the land after the res- toration of order." I. Atlantic Reporter, 55, p. 956. CHAPTER XXVIII. Responsibh,ity op Subordinates. 657. It may become an important question for subordinates how far the, orders of military superiors justify them before the civil law in the exercise of martial-law powers. " Inferiors are required to obey strictly and to execute promptly the lawful orders of the superiors appointed over them." ^ They are not required to obey unlawful orders. Yet the subordinate who assumes to determine what is lawful does so under grave re- sponsibility. The presumption of law is against him. He must remove it or stand without justification. And this in the military profession means much to his disadvantage. Not that the penalty which may attach to trial and conviction by a court-martial may be so great, although the blot thus cast on one's record is to be shunned; but, let it once be understood that a soldier hesitates to obey orders and his usefulness re- ceives a fatal stroke. His superiors no longer implicitly trust him, and no greater misfortune can befall a soldier, be he high or low, than to lose the confidence of his superior officers. It cannot be too firmly impressed on the mind of the military man that the first and last duty of the soldier is cheerful obedi- ence. It is not for him to hesita,te except to determine how his orders can most faithfully be executed, not only in letter, but in spirit. This cheerful obedience to the powers that be is the foundation of discipline, which itself is the soul of the mili- tary system — ^not discipline inspired by terror, but based upon affection for and pride in the profession and a willingness, even anxiety, to do whatever will enhance its credit and honor. So simple does the matter of obedience to orders appear that its importance is often overlooked by soldiers themselves. Expe- rience, however, makes plain the simple truth that no more I. Paragraph 1, Regulations, Army U. S. 560 RESPONSIBILITY OF SUBORDINATES. 561 vital principle inheres to the military code, and that it well deserves the prominence given it as the leading article of the Regulations of the Army. 658. Yet the Regulations enjoin obedience to lawful orders only, leaving the inference that if unlawful they are of no bind- ing force. The interesting question at once arises, Who is to judge upon this point? The law, strictly interpreted, places this responsibility upon the subordinate. In Commonwealth -y. Blodgett et al., the distinguished Chief -Justice of Massachusetts adverted to the subject of military responsibility in the follow- ing terms : " It has been argued, upon the ground of the evi- dent hiardships of the case, that men ought not to be held re- sponsible for acts done in obedience to orders which they are compelled to obey under severe military discipline. But this is not the true principle, and it would be dangerous in the ex- treme to carry it out into its consequences. The more general and the sounder rule is, that he who does acts injurious to the rights of others can excuse himself, as against the party in- jured, by pleading the lawftd coinmands of a superior whom he is boiind to obey. A man may be often so placed in civil life, and more especially in military Ufe, as to be obliged to execute unlawful commands on pain of severe legal consequences. As against the party giving such command he will be justified; injoro conscienticB he may be excusable; but toward the party injured the act is done at his own peril, and he must stand responsible.* 659. The rule may sometimes appear to be unjust, but it is based on public policy and flows from the consideration that society should be protected from the evil-doer, who may not be permitted to evade the ■ consequences of his unlawful acts by pleading the orders of anyone, foir no one has a right either to set the laws at defiance or authorize another to do so. Still, as regards members of the military profession, the workings of the rule are liable to be so harsh that judges are moved sometimes not only to temper justice with great mercy, but, so far as r. 10 Metcalf (Mass.), p. 56' et seq. — 36 — 562 MIUTARY GOVERNMENT AND MARTIAL LAW. practicable, to transfer the responsibility to the officer who is- sued the illegal order. The subordinate is certainly in a most trying position when called upon to obey an order which be deems to be illegal. If he disobey a,nd hjs judgment be at fault, he is without recourse; he must answer to his commander for disobedience and to the law for any resulting evil conse- quences within its cognizance. If, on the other hand, he obey, yielding his judgment of the law to the soldierly instinct of obedience, and that judgment prove to have been correct, he stands without any defence which the law, strictly construed, can admit as a justification. And even though he disobey and his view of the law prove to be correct here, while the law vindicates him, still, unless it be a most flagrant case of illegal orders, such as seldom arises, he may find that his legal tri- umph has impaired his reputation as a willing, obedient soldier. 660. No wonder that courts, when they pass judgment in such cases, yield a willing ear to the promptings of humanity, and place, so far as possible, responsibility for violations of the law upon superiors who initiate them, rather than upon subor- dinates whose actions, in carrying into execution the orders of those whom the law has placed over them, are whoUy invol- untary. "!^xcept in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal," said the court in Mc- Call V. McDowell, "I cannot but think that the law should excuse the military subordinate when acting in obedience to the orders of his commander- Otherwise he is placed in the dangerous dilemma of being liable in damages te third parties for obedience to an order, and to the loss of his commission and disgrace for disobedience thereto.'" 661 . The court further remarked in this case that it was not necessary to the ends of Justice that the subordinate or soldier should be responsible for the illegal order of a superior ; that in any case the party injured can have but one satisfaction, which might and should be obtained from the really responsible I. Deady, J., i Abbott, pp. 212-229. RESPONSIBILITY OF SUBORDINATES. 563 party — the ofijcer who gave the illegal order. In civil life the rule is well settled otherwise, but the circumstances of the two cases are entirely different. In civil life the two parties are equal in the eye of the law; the subordinate, unlike the soldier, does oot act upon compulsion, but is a free agent and at liberty to exercise his judgment in the premises. 662. As a result of the law as thus expounded, Captain Douglass, a co-defendant who kept plaintiff, a citizen, in prison under an illegal order of McDowell, the superior, was declared not liable in damages, and given his costs and expenses in the suit. McDowell was held responsible; but the rule was laid down that although plaintiff was entitled to some damages, they were to be compensatory only, and not vindictive or ex- einplary, unless it could be shown that the illegal order was issued with evil intention or from bad motive.' 663. This opinion of a learned and experienced judge de- serves careful consideration. The principle upon which it pro- ceeds conserves at once the public interests by maintaining discipline in the Army and the private rights of the citizen by holding to a just responsibility those who invade them. The case is this: On hearing, at San Francisco, California, of the assassination of President Lincoln, one McCall, it was al- leged, publicly gave expression to feelings of rejoicing, and was arrested therefor under a,n order published by General McDowell, commanding that military departrrient. The dis- trict was riot under marti^-l lavy. Having been confined in Fort Alcatraz upon arrest, where Captain Douglass com- manded, McCall, upon release, brought suit against both these miUtary officers for his illegal arrest and imprisonment. The court, in disposing of the case, ruled: (i) That the order was illegal; (2) that plaintiff was entitled to recover; (3) that the order sprang not from improper, but good motives, involving the public peace and safety; (4) that consequently only com- pensatory damages were recoverable; (5) that for ill-treat- I. See also to same effect as to damages, Milligan v. Hovey, 3 Bissell, p. 13 564 MILITARY GOVERNMENT AND MARTIAL LAW. ment at Akatraz, unless it could be traced directly to Douglass, McDowell was responsible; (6) that Douglass, acting under or- ders, was not liable for the arrest and imprisonment. 664. Like other principles of the law, the rule of responsi- bility applicable to military subordinates who tread the thorny path of obedience to the illegal orders of their superiors, has re- ceived the impress of an advancing and refining civilization. The older rule of the English law made no distinction between the civil obligations of soldiers and other citizens at any time.' Nor can the rule even now be said to be otherwise firmly estab- lished, although the reasoning and conclusions of the court in the case just referred to indicate a change towards more liberal judicial ruUngs. 665. The reasoning of the Supreme Court of the United States in Martin i;. Mott, and the conclusions as to the duty of obedience drawn therefrom, were much to the same effect.^ This was a case where a drafted militiaman had refused to be mustered into the service of the United States, because, as he alleged, the President had made the order in a case of contem- plated by the law under which he professed to act. The court held that the President had a right to determine when the mil- itia should be called out, and this decision was conclusive upon all other persons. The service required was military, the com- mand of a military nature. In such cases every delay and every obstacle to an efficient and immediate compliance neces- sarily tended to jeopardize the public interests. "While sub- ordinate officers and soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services," it remarked, "the hostile en- terprise may be accomplished without the means of resist- ance. If a superior officer has a right to contest the orders of the President upon his own doubt of the exigency having arisen, it must be equally the right of every inferior officer and I. Lord Campbell's Lives of the Chief-Justices, Vol. 3, p. 91. 2. 12 Wheaton, p. 19. RESPONSIBILITY OF SUBORDINATES. 565 soldier; and any act done by any person in furtherance of such orders would subject him to responsibility in a civil suit, in which his defence must finally rest upon his ability to re-estab- lish the facts by competent proof. Such a course would be subversive of all discipline, and expose the best-disposed offi- cers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the President might decide that there is imminent danger of invasion might be of a nature not constituting strict legal proof, or the disclosure of the evi- dence might reveal important events of State, which the public interests, and even safety, might imperiously demand to be kept in concealment." 666. A subordinate stands in a different position from the superior when he obeys, and may be absolved from liability for executing an order which it was criminal to give. The question is. Had accused reasonable cause for believing in the necessity of the act which is impugned? and in determining this point a soldier may take the orders of the person in com- mand into view as proceeding from one who is better able to judge and well informed; and, if the circumstances are such that the command may be justifiable, he should not be held guilty for declining to decide that it is wrong, with the re- sponsibility incident to disobedience, unless the case is so plain as not to admit of a reasonable doubt. A soldier conse- quently runs little risk in obeying any order which a man of common sense so placed would regard as warranted by the circumstances.' In the case of a soldier, or guard, who shot and killed an escaping military prisoner, the United States Circuit Court said: "Under the common law an officer having custody of a prisoner charged with a felony may take his life if it become absolutely necessary to prevent his escape. The military code practically aboUshes distinctions between felonies and misdemeanors. The same principle applies to a soldier in the performance of his duty who, in .doing so, killed an escaping I. Hare, Constitutional I/aw, p. 920. 566 MILITARY GOVERNMENT AND MARTIAL LAW. prisoner. The sentinel could not be successfully prosecuted unless the act were manifestly beyond the scope of his au- thority, or were such that a man of ordinary sense and under- standing would know that it was illegal, and, if he acted in good faith and without malice, he would not be criminally liable."* ^ 65^. To the citizen who regards the maintenance of society under the protection of law as the great end and aiffl' of govern- ment, the principles of law here announced must be particularly gratifying. The soldier no longer here appears as the natural enemy of his country and mankind, bent only Upon rearing his fortunes upon the liberties of the people which he has pros- trated in the dust. On the contrary, he appears the friend as well as defender of the people. But discipline in any military establishment is indispensable. Obedience in all armies is the first rule of the soldier. And yet, neither the discipline of the Army nor the public safety seems, according to these enlight- ened views, to require the SELcrifice of subordinates whose only desire has been loyally to carry out orders of their superiors. 668. It is to be regretted that this question of responsibility for executing illegal military orders should, by conflicting ju- dicial decisions, be left in the least doubt. The reasonable rule, which at the same time absolutely guards the rights of the citizen, is that laid down in McCall's case. As there men- tioned, the citizen whose rights are assailed is entitled to but one satisfaction; that he may have against the superior who issued the illegal order, why not compel him to seek this means of redress? Such a rule, universally recognized, would foster a proper Spirit of discipline in the Afmy; ill this all classes, particularly the civil community and property-owners, are deeply interested; for, as experience has shOwn, an illy disci- plined military is a menace to government; a source of weak- ness, not of strength. Besides, it would fix responsibility cer- tainly and at all events, and obviate lukewarm prosecutions; for where both judge and jury feel that in equity if not ill law I. Federal Reporter, 31, p. 710. RESPONSIBILITY OF SUBORDINATES. 567 the wrong person is being prosecuted, justice is not apt to be zealously or even fairly administered. 669. It has been said that if the commands of the superior be illegal and obviously so, the inferior who obeys cannot avoid responsibility; if illegal, and not obviously so to the ordinary understanding, he will not be held liable for obedience ; if legal, and yet the inferior believes it to be otherwise and disobeys, he will be triable by court-martial; if legal, yet not obviously so, the subordinate is not answerable for disobedience.^ But it is apprehended that in the present state of the law as generally expounded, he who obeys an illegal order, whether obviously so or not, may, in the strict construction of the law, be held responsible. On the other hand, if the order be legal, and he assume to disobey, he may be held responsible not only for the military, but the civil consequences. In the latter case, that the subordinate doubted the legality is no defence what- ever. In the first instance, it is true that, from tenderness of feeling, courts are inclined to make a broad distinction between orders that are plainly illegal to the ordinary mind and those wherein the legality is doubtful, holding the subordinate liable in the first case, and in the other giving weight to every circum- stance that can operate in his favor, which, as a rule, amounts practically to immunity from liability. 670. "I do not think, however," said Mr. Justice Stephen, in his History of the Criminal Law, "that the question how far superior orders would justify soldiers or sailors in making an attack upon civilians has ever been brought before the courts of law in such a manner as to be fully considered and determined. Probably upon such an argument it would be found -that the order of a military superior would justify his inferiors in exe- cuting any orders for giving which they might fairly suppose the superior officer to have good reasons. * * * fhe doc- trine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel I. Lieutenant Young, Military!;. Mobs (1888). 568 MIUTARY GOVERNMENT AND MARTIAL LAW. by the orders of the captain, or in deserting to the enemy on the field of battle by the order of his immediate commander. * * The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds."' 671. Upon the same subject, Willes, J., remarked: "I hope I may never have to determine that difficult question. How far the orders of a superior officer are a justification? Were I com- pelled to determine that question, I should probably hold that the orders are an absolute justification in time of actual war — at all events, as against enemies or foreigners — and, I should think, even with regard to English-born subjects of the crown, unless the orders were such as could not legally be given. I believe that the better opinion is that an officer or soldier acting under the orders of his superior — not being necessarily or mani- festly illegal — would be justified by his orders."^ Commenting upon these views, Mr. Dicey, in his Introduction to the Study of the Constitution of England, observes: "A critic were rash who questioned the suggestion of a jurist whose dicta are more weighty than most considered judgments. The words, moreover, of Mr. Justice Willes enounce a principle which is in itself pre-eminently reasonable. If it be not ad- mitted, results follow as absurd as they are unjust; every sol- dier is called upon to determine on the spur of the moment legal subtleties which, after a lengthy consultation, might still perplex experienced lawyers, and the private ordered by his commanding officer to take part in the suppression of a riot runs the risk, if he disobeys, of being shot by order of a court- martial, and if he obeys, of being hanged under sentence of a judge. I,et it further be carefully noted that the doctrine of Mr. Justice Willes, which is approved by the criminal code commissioners, applies, it would seem, to criminal liability only. The soldier or policeman who, without full legal justification, I. Pp. 205-6. 2. Keightly t. Bell, 4 Foster & Finlason's Reports, pp. 763-90- RESPONSIBILITY OP SUBORDINATES. 569 assaults or arrests a civilian, incurs (it is submitted), even though acting under orders, full civil liability." ' 672. Yet the principle of immunity in such cases is not fully established; and though the weight of decisions is tending that way, the older rule of law, that he who under any circum- btances obeys an illegal order may be held responsible for the results, cannot be said to be reversed, though its strictness is impaired. In regard to the disobedience of a legal order, when it is not obviously so, the principle never can be admitted that the subordinate is not responsible for disobedience. Nowhere, in any military system, certainly not in that of the United States, is the idea for one moment tolerated that a subordinate can with impunity disobey a lawful order. The claim that it was not obviously legal to an ordinary understanding would be as unsoldierly as it would be unavailing.^ 673. Nor does it signify whether subordinates act singly or collectively; the rule of responsibility of members of martial- law tribunals, for instance, is identical with that of the indi- vidual. The reason for this is apparent. Such tribunals ex- ist by virtue only of an order issued by a military superior, who either has or assumes to have authority to convene them. The members of the court are, therefore, proceeding under military orders as certainly as though each member had re- ceived a distinct order to do a certain thing. The difference is, that here each has associated with him others in the allotted work given them by a common superior. Such tribunals be- long in the category of inferior courts in the sense that, when their authoi'ity is questioned, the person who has acted under it must be able to show that jurisdiction existed.^ All courts must have jurisdiction of persons and causes to render their proceedings valid. Superior courts of general jurisdiction are supposed by law to have this until the contrary be shown. Members of inferior courts, however, can only justify when he I. Appendix, p. 422. 2. Whiting, War Powers, loth edition, p. 182; Hall V. Howd, 10 Conn., p. 514. 3. 19 Johnson, p. 7; 20 Johnson, p. 343; 3 Cranch, p. 337. ,570 MILITARY GOVERNMENT AND MARTIAL LAW. who claims right or exemption under the decree or judgment shows jurisdiction affirmatively. 674. The tribunal .will decide whether or not it has jurisdic- tion. It may, indeed, happen that a question will arise on this point, as in rare instances has occurred. In such cases it is the duty of the tribunal to proceed with the business before it, under such orders as the convening authority may give. That is the rule laid down by the military authorities. It is a safe and proper rule, conducive to discipline and the prompt ad- ministration of justice through the instrumentality of military tribunals. It proceeds upon the principle that obedience to orders among military men is a first duty; that where a ques- tion arises upon the legality of the order, the subordinate dis- obeys at his peril; and that in matters which have been so carefully considered as those which deliberately and formally are referred to a military tribunal for its determination, the convening officer has had time and opportunity fully to pass upon the question of their legality, and in his decision the court should acquiesce without factious opposition.^ Of course this does not excuse the members if the matter referred to the court is one which, obviously, and without reflection, is seen to be beyond the cognizance of the court. We can scarcely conceive of such a case in an intelligently conducted service, yet if it arose, it would then be necessary for the court to de- cide whether or not it would proceed in a matter clearly be- yond its jurisdiction under all the responsibilities attached to such a line of conduct. 675. But it is not the question of jurisdiction which possibly may arise between commander and subordinates that now is being treated of; it is that question arising before the civil courts when military officers are called upon to vindicate liheir actions as members of martial-law tribunals. And here the rule of responsibility attaching to inferior courts applies. If the tribunal had apparent jurisdiction upon the facts bpread before it, after opportunity given all parties to be heard, the I. I Opinions of Attorney-General, p. 233. RESPONSIBILITY OF SUBORDINATES. 57 1 members are not liable because subsequently it might appear that there had been a mistake as to the facts. They can only judge of the facts laid before them, and if these give jurisdic- tion, they are not liable.^ Nor does it matter that the charges are not drawn up with that particularity which characterizes pleadings at common law, and which under the pressure of modern business requirements are being pruned of their ver- biage by statutes. Certainty is indeed esseritial. The time, place, who the offender is, and the character of his offence must clearly appear. But this may be set out in the baldest terms. ^ 676. Jurisdiction being had, members of military tribunals are not liable unless it can be shown that they acted mali- ciously; and the difficulty of making out such a case is hardly greater than the improbability that they have so acted. Such tribunals unite in themselves the functions of judge and jury. They decide upon the effect of evidence, and construe the law applicable to the case before them. The members are not liable because they form an erroneous judgment upon the facts proved, or as to what facts were proved, or the mode of proving. In common law, if a magistrate return a regular conviction, the matter being within his jurisdiction, it is good in law, although he was wholly wrong. On the other hand, to kill a convicted murderer is itself murder, unless done in the man- ner prescribed by law. In the case of Linford v. Fitzroy,^ the court remarked that no action would lie against a magistrate for anything done by him in the discharge of his judicial duty without proof of actual malice or ill-feeling, or bad evidence. And so in regard to military tribunals; if the proceedings are regular under the law and usage of the service, it does not add to the legal Uability of those who participate therein that after- wards it should transpire that the accused was innocent, unless bad motives on the part of the members be shown.* The law I. Lowthem. Lord Randor, 8 East's Reports, p. 173. 2. 5 Barnwall & Adolphus' Reports, p. 681 (1833); i Opinions of Attorney-General, p. 294. 3. 13 Queen's Bench Reports, p. 230. 4. Finlason, Martial Law, p. 99. 572 MIUTARY GOVERNMENT AND MARTIAL LAW. governing in such cases is similar to that applicable to actions for malicious prosecution. The true grounds for the latter ac- tions are the plaintiff's innocence, and the claim that it was not an honest prosecution of justice. Yet if the grand jury have found an indictment, the defendant in an action for malicious prosecution will not be found to show probable cause, but the plaintiff will be constrained to show malice and iniquity in the prosecution. And if the party were convicted, even though judgment were reversed on appeal, it is impossible for an action for malicious prosecution to succeed unless the trial court can be fixed with malice, and even then the prosecutor in the orig- inal cause must be fixed with it in order to render him liable. "^ I. Saville V. Roberts, i Lord Raymord's Reports, p. 374; Jones i). Gwyn, I Wilson's Reports, p. 91; Reynolds i). Kennedy, i Wilson's Re- ports, p. 232. CHAPTER XXIX. Bii prosecutions against other individuals on the allegations that they have given friendly information, aid, or assistance to the American forces. 14. For the ease and safety of both parties in all cities and towns occupied by the American Army, a Mexican police shall be established, and duly harmonized with the miUtary police of said forces. 15. This splendid capital, its churches and religious worship, its con- vents and monasteries, its inhabitants and property are, moreover, placed under the special safeguard of the faith and honor of the American Army. i6. In consideration of the foregoing protection, a contribution of $150,000 is imposed on this capital, to be paid in four weekly installments of thirty-seven thousand five hundred dollars ($37,500) each, beginning on Monday next, the 20th instant, and terminating on Monday, the nth of October. 17. The Ayuntamiento, or corporate authority of the city, is spe- cially charged with the collection and payment of the several installments. 18. Of the whole contributions to be paid over to this Army, twenty thousand dollars ($20,000) shall be appropriated to the purchase of extra comforts for the wounded and sick in hospital; ninety thousand dollars ($90,000) to the purchase of blankets and shoes for gratuitous distribu- tion among the rank and file of the Army; and forty thousand dollars ($40,000) reserved for other necessary military purposes. 19. This order will be read at the head of every company of United States forces serving in Mexico, and translated into Span-'sh for the in'ormation of Mexicans. SH MILITARY GOVERNMENT AND MAETIAL LAW. APPENDIX II. Instructions for the Government op Armies of the United States in the Field. Section I. Martial Law. 1. A place, district, or cdunlry occupied by n enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law. *ARTrci,E XI/II. Territory is considered occupied when it is acttially placed under the authority of the hostile army. The occupation applies only to the territory where such authority is estab- lished and in a position to assert itself. 2. Martial law does not cease during the h' s ile occupation, except by special proclamation, ordered by the commander-in-chief; or by spe- cial mention in the treaty of peace concluding the war, when the occu- pation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3. Martial law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or ter- ritory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity re- quires this suspension, substitution, or dictation. . The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. 4. Ma-tial law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not martial law ; it is the abuse of the power which that law confers. As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms .against the unarmed. Article L. No general penalty, pecuniary or oth • wise, can be in- Hicted on the population on account of the acts of individuals for which it annot be regarded as collectively responsible. *The articles in italics are from the Hague Conferenre Code, proclaimed by the President of the United States, April 11, 1902 (G. O., 62, A. G. O., 1902). APPENDIX II. 585 MilitaryiJurisdiction. 5. Martial law should be less stringent in places and countries fully- occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed— even in the com- mander's own country — ^when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion. To save the country is paramount to all other considerations. 6. All civil and penal law shall continue to take its usual course in the enemy's places and territories under martial law, 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 \ocal character, cease under martial law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader. 7. Martial law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government. 8. Consuls, among American and European nations, are not diplo~ matic agents. Nevertheless, their offices and persons will be subjected to martial law in cases of urgent necessity only: their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other in- habitant, and such punishment furnishes no reasonable ground for inter- national complaint. g. The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the dis'placed government; but the conquering or occu- pying power usually recognizes them as temporarily accredited to itself. 10. Martial law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the Army, its safety, and the safety of its operations. ArTiciower to re-establish and insure, as far as possible, public order and safety, Twhile respecting, unless absolutely prevented, the laws in force in the country. 592 MILITARY GOVERNMENT AND MAKTIAI, LAW. 42. Slavery, complicating and confounding the ideas of property (that is, of a thing), and of personality (that is, of humanity), exists accord-- ing to municipal or local law only. The law of nature and nations has- never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that "so far as the law of nature is concerned, all men are equal." Fugitives escaping from a country in which they- were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of Eu- ropean countries, even though the municipal law of the country in which. the slave had taken refuge acknowledged slavery within its own dominions. 43. Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection 'of jthe military- forces of the United States, such person is immediately entitled to the- rights and privileges of a freeman. To return such person into slavery- would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. More- over, a person so made free by the law of war is under the shield of the law of nations; and the former owner or state can have, by the law of postliminy, no belligerent lien or claim of service. Punishment of Crimes against Inhabitants of Hostile Country. 44. All wanton violence committed against persons in^he invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by- main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punish- ment as may seem adequate for the gravity of the oflfence. A soldier, officer or private, in the act of committing such violence,, and disobeying a superior ordering him to abstain from it, may be law- fully killed on the spot by such superior. 45. All captures and booty belong, according to the modern law of war, primarily to the government of the captor. Prize money, whether on sea or land, can now only be claimed under- local law. 46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offences to the contrary committed by commissioned officers will be punished with cashiering or such other punishment as the nature of the offence may require; if by soldiers, they shall be punished according to the nature of the offence. 47. Crimes punishable by all penal codes, such as arson, murder^ maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and APPENDIX II. 593 Tape, if committed by an American soldier in a hostile country against Its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. Section III. Deserters. 48. Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American Army; and if a deserter from the enemy, having taken service in the Army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation. Prisoners of War. 49. A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation. All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war. Article I. The laws, rights, and duties of war apply not only to ar- mies, but also to militia and volunteer corps, fulfilling the following conditions: 1. To he commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and ' 4. To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army.'' 50. Moreover, citizens who accompany an army for whatever pur- pose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such. The monarch and members of the hostile reigning family, male or female, the chief, and chief officers of the hostile government, its dip- lomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured on —38— 594 MIIylTARY GOVERNMENT AND MARTIAL LAW. belligerent ground, and if unprovided with a safe-conduct granted by the- captor's government, prisoners of war. ArXici,U XIII. Individuals who follow an army without directly belong- ing to it, such as newspaper correspondents and reporters, sutlers, contract- ors, who jail into the enemy s hands, and whom the latter think jit to detain, have a right to be treated as prisoners of war, provided they can produce a- certificate from the military authorities of the army they were accompanying. 51. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a. hostile arm}', rise, under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war. ArTicI/B II. The population of a territory which has not been occupied' who, on the enemy's approach, spontaneously take up arms to resist the in- vading troops, without having time to organize themselves in accordance with Article L, shall be regarded u belligerent, if they respect the laws and cus- toms of war. 52. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. If, however, the people of a country, or any portion of the same, al- ready occupied by an array, rise against it, they are violators of the laws, of war and are not entitled to their protection. 5,5. The enemy's chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American' Army, are not prisoners of war, unless the commander has reasons to- retain them. In this latter case, or if at their own desire they are allowed; to remain with their captured companions, they are treated as prisoners- of war, and may be exchanged if the commander sees fit. Article III. The armed forces of the belligerent parties may consist of combatants and noncombatants. In case of capture by the enemy, both- have a right to be treated as prisoners of war. Article XV. Relief societies for prisoners of war, which are. regularly constituted in accordance with the law of the country with the object of serving- as the intermediary for charity, shall receive from the belligerents for them- selves and their duly accredited agents every facility, within the bounds of military requirements and administrative regulations, for the effective ac- complishment of their humane task. Delegates of these societies may be ad- m.itted to the places of internment for the distribution of relief, as also to ilie- halting-places of repatriated prisoners, if furnished with u, personal permit- by tlie military authorities, and on giving an engagement in writing to comply- with all their regulations for order and police. APPENDIi II, 595 Hostages. 54. A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in con- sequence of a war. Hostages are rare in the present age. 55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit. 56. A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 57. So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offences. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies. 58. The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint. The United States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations. 59. A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory measures. Troops Tliai Give No Quarter. 60. It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter ; but a com- mander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners. 61. Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops. 62. All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none. 63. Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. 64 If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them 596 MILITAET GOVERNMENT AND MAKTIAL LAW. for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. 65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war. Article XXIV. Ruses of war^ and the employment of methods neces- sary to obtain information about the enemy ana the country, are considered •allowable. 65. Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be •ordered to suffer death if, within three days after the battle, it be discov- ■ered that he belongs to a corps which gives no quarter. 67. The law of nations allows every sovereign government to make war upon another sovereign state, and therefore admits of no rules or laws different from those pf regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. 68. Modern wars are not internecine wars, in which the killing of the enemy is the object. The desitruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful. 6q. Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has been issued to that effect. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. ArticlB XXIII. Besides the prohibitions provided by special con- tentions, it is especially prohibited — (a) To employ poison of poisoned arms; (b) To kill or wound treacherously individuals belonging to the hostile nation or army; (c) To kill or wound an enemy who, having laid down arms, or hav- ing no longer means of defence, has surrendered at discretion, (d) To declare that no quarter will be given; (e) To employ arms, projectiles, or material of a nature to cause superfluous injury; (f) To make improper use of a flag of truce, the national flag, or military ensigns and the enemy's uniform, as well as the distinctive badges of the Geneva Convention; (g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war. APPENDIX II. 597 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or en- courages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed. Booty on the Battlefield, 72. Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American Army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable, and is prohibited. Nevertheless, if large sums are found upon the persons of prisoners, or in their possession, they shall be taken from them, and the surplus > after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they have been placed in the private luggage of the prisoners. Prisoners of War ( Treatment of ). Article IV. Prisoners of war are in the power of the hostile govern-^ ment, but not in that of the individuals or corps who captured them. They must be humanely treated. All their personal belongings, except arms, horses, and military papers, remain their property. Article XIV. A bureau for information relative to prisoners of war is instituted, on the commencement of hostilities, in each of the belligerent states, and, when necessary, in the neutral countries on whose territory bel- ligerents have been received. This bureau is intended to answer all inquiries about prisoners of war, and is furnished by the various services concerned with all the necessary information to enable it to keep an individual return for each prisoner of war. It is kept informed of internments and changes,, as well as of admissions into hospital and deaths. It is also the duty of the information bureau to receive and collect alt objects of personal use, valuables, letters, etc., found on the battlefields or left by prisoners who have died in hospital or ambulance, and to transmit them to those inteiestei. Article XVI. The information bureau shall have the privilege of free, postage. Letters, money orders, and valuables, as well as postal parcels des- tined for the prisoners of war or dispatched by them, shall be free of all postal, duties, both in the countries of origin and destination, as well as in those they pass through. 598 MILITARY GOVERNMENT AND MARTIAL LAW. Gifts and relief in kind for prisoners of war shall be admitted free of aU duties of entry and others, as well as of payments for carriage by the goverii- ment railways. 73. All officers, when captured, must surrender their side-arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguished bravery or appro- bation of his humane treatment of prisoners before his capture. The captured officer to whom they may be restored cannot wear them during ■captivity. Article XVII. Officers taken prisoners may receive, if necessary, the full pay allowed them in this position by their country 9 regulations, the amount to be repaid by their government. 74. A prisoner of war, being a public enemy, is the prisoner of the government, and not of the captor. No ransom can be paid by a pris- oner of war to his individual captor or to any officer in command. The government alone releases captives, according to rules prescribed by itself 75. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The con- finement and mode of treating a prisoner may be varied during his cap- tivity according to the demands of safety. Article V. Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed limits; but they can only be confined as an indispensable measure of safety. 76. Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity. They "may be required to work for the benefit of the captor's govern- ment, according to their rank and condition. Article VI. The state may utilize the labor of prisoners of war ac- cording to their rank and aptitude. Their tasks shall not be excessive, and shall have nothing to do with the military operations. Prisoners may be authorized to work for the public service, for private persons, or on their own account. Work done for the state shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks. When the work is for other branches of the public service or for private persons, the conditions shall be settled in agreement with the military au- thorities. The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance. Article VII. The government into whose hands pri.';oners of war liave fallen is bound to maintain them. APPENDIX n. 599 Failing a special agreement between the belligerents, prisoners of war shall be treated, as regards food, quarters, and clothing, on the same footing as the troops of the government which has captured them. 77. A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be in- flicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape. If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authori- ties of the captors, whether in union with fellow-prisoners or other persons. 78. If prisoners of war, having given no pledge nor made any prom- ise on their honor, forcibly or otherwise escape, and are captured again in battle after having rejoined their own army, they shall not be pun- ished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement. Article VIII. Prisoners of war shall be subject to the laws, regula- tions, and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption, as regards them, of such measures of severity as may be necessary. Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment. Prisoners who, after succeeding in escaping, are again taken prisoners are not liable to any punishment for the previous flight. Article XVIII. Prisoners of war shall enjoy every latitude in the exercise of their religion, including attendance at their own church services, provided only th»y comply with the regulations for order and police issued by the military authorities. Article XIX. The wills of prisoners of war are received or drawn up on the same conditions as for soldiers of the national army. The same rules shall be observed regarding death certificates, as well as for the burial of prisoners of war, due regard being paid to their grade and rank. Article XX. After the conclusion of peace, the repatriation of pris- oners of war shall take place as speedily as possible. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. Article XXI. The obligations of belligerents inth regard to the sick and wounded are governed by the Geneva Convention of the 22nd August, 1864, subject to any modifications which may be introduced into it. 60O MILITARY GOVERNMENT AND MARTIAL LAW, 80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information. SecTiON IV. Partisans. 81. Partisans are soldiers armed and wearing the utiiform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the pris- oner of war. Armed Prowlers, Not Belonging to Hostile Army. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and vocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of. soldiers — such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. Scouts. I 83. Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. • Armed Prowlers. 84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hos- tile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. War-Rebels. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the author- ities established by the same. If captured, they may suffer death, wheth- er they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not pris- APPENDIX II. 60? oners of war; nor are they if discovered and secured before their con- spiracy has matured to an actual rising or armed violence. Section V. Safe-Conditct. 86. All intercourse between the territories occupied by belliger- ent armies, 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 miUtary authority. Contraventions of this rule are highly punishable. 87. Ambassadors, and all other diplomatic agents of neutral powers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military reasons to the contrary, and unless they may reach the place of their destination con- veniently by another route. It implies no international affront if the safe-conduct is decHned. Such passes are usually given by the supreme authority of the state, and not by subordinate officers. Spies. 88. A spy is a person who secretly, in disguise or under false pre- tence, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy. Article XXIX. An individual can only be considered a spy ij^ acting clandestinely or on false pretences, he obtains, or seeks to obtain, in- formation in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not in disguise who have penetrated into the zone of opera- tions of a hostile army to obtain information are not considered spies. Sim- ilarly, the following are not considered spies: soldiers or civilians carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise the individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory Article XXX. A spy taken in the act cannot he punished without previous trial. 6o2 MIIvITARY GOVERNMENT AND MARTIAL LAW. Article XXXI. A spy who, after rejoining the army to which he be- longs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage. 89. If a citizen of the United States obtains information in a le- gitimate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death. War-Traitors. 90. A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds inter- course with hhn. 91. The war-traitor is always severely punished. If his offence consists in betraying to the enemy anything concerning tlie condition, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death. 92. If the citizen or subject of a country or place invaded or con- quered gives information to his own government, from which he is sep- arated by the hostile army, or to the army of his government, he is a war- traitor, and death is the penalty of his offence. Guides. 93. All armies in the field stand in need of guides, and impress them if they caimot obtain them otherwise. 94. No person having been forced by the enemy to serve as guide is punishable for having done so. 95. If a citizen of a hostile and invaded district voltmtarily serves as a guide to the enemy, or offers to do so, he is deemed a war-traitor, and shall suffer death. 96. A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country. 97. Guides, when it is clearly proved that they have misled inten- tionally, may be put to death. 98. All unauthorized or secret communication with the enemy is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts, or with the inhabitants of the hostile country, so far as the military authority pennits, but no further. In- stant expulsion from the occupied territory would be the very least pun- ishment for the infraction of this rule. Captured Messengers.. 99. A messenger carrying written despatches or verbal messages from one portion of the army, or from a besieged place, to another portion APPENDIX II. 603 of the same army or its government, if armed, and in the uniform of his army, and if captured, while doing so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected with his capture must deter- mine the disposition that shall be made of him. 100. A messenger or agent who attempts to steal through the terri- tory occupied by the enemy, to further, in any manner, the interests of the enemy, if captured, is not entitled to the privileges of a prisorer of war, and may be dealt with according to the circumstances of the case. Deception Permissible or Otherwise. loi. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common Jaw of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them. 102. The law of war, like the criminal law regarding other offences, makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. 103. Spies, war-traitors, and war-rebels are not exchanged according to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, a great distance from it, by the chief commander of the army in the field. 104. A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous. Section VI. Exchange of Prisoners. 105. Exchanges of prisoners take place — ^number for number — rank for rank — wounded for wounded — with added condition for added condi- tion — such, for instance, as not to serve for a certain period. 106. In exchanging prisoners of war, such numbers of persons of in- ferior rank may be substituted as an equivalent lor one of superior rank as may be agreed upon by cartel, which requires the sanction of the gov- ernment, or of the commander of the army in the field. 107. A prisoner of war is in honor bound truly to state to the captor his rank; and he is not to assume a lower rank than belongs to him, in order to cause a more advantageous exchange, nor a higher rank, for the pu pose of obtaining better treatment. Offences to the contrary have been justly punished by the com- manders of released prisoners, and may be good cause for refusing to re- lease such prisoners. 6o4 MILITARY GOVERNMENT AND MARTIAL LAW. ArticI/B IX. Every prisoner 0} war, if questioned, is bound to declare his trtie name and rank, and if he disregards this rule, he is liable to a curtail- ment of the advantages accorded to the prisoners of war of his class. 108. The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the payment of a stipulated sum of money, or, in urgent cases, of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. log. The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it cannot be demanded by either of them. No belligerent is obliged to exchange prisoners of war. A cartel is voidable as soon as either party has violated it. no. No exchange of prisoners shall be made except after complete capture, and after an accurate account of them, and a list of the captured officers, has been taken. Flags of Truce. 111. The bearer of a flag of truce cannot insist upon being admitted He nmst always be admitted with great caution. Unnecessary frequency is carefully to be avoided. Article XXXII. An individual is considered as bearing a flag of truce who is authorized by one of the belligerents to enter into communication with the other, and who carries a white flag. He has a right to inviolability, as well as the trumpeter, bugler, or drummer, the flag-bearer, and the inter- preter who may accompany him. Article XXXIII. The chief to whom a flag of truce is sent is not obliged to receive it in all circumstances. He can take all steps necessary to prevent the envoy taking advantage of his mission to obtain information. In case of abuse, he has the right to detain the envoy temporarily. 112. If the bearer of a flag of truce offer himself during an engage- ment, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engage- ment. Firing is not required to cease on the appearance of a flag of truce in battle. 113. If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever. 114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. APPENDIX II. 605 So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offence, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy. Article XXXIV. The envoy loses his rights of inviolability if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery. Flags of Protection. 115. It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement. 116. Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they may be spared. An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit. 117. It is justly considered an act of bad faith, of infamy or fiend- ishness, to deceive the enemy by flags of protection. Such act of bad faith may be good cause for refusing to respect such flags. 118. The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as much as possible. Section VII. The Parole. 119. Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole. Article X. Prisoners of war may he set at liberty on parole if the laws of their country authorize it, and, in such a case, they are bound, on their personal honor, scrupulously to fulfill, both as regards their own government and the government by whom they were made prisoners, the engagements they have contracted. In such cases, their own government shall not require of nor accept from them any service incompatible with the parole given. 120. The term "parole" designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 6o6 MILITARY GOVERNMENT AND MARTIAL LAW. Article XI. A prisoner of war can not he forced to accept his liberty on parole; similarly the hostile gdvernment is not obliged to assent to the prisoner's request to be set at liberty on parole. 121. The pledge of the parole is always an individual, but not a private act. 122. The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live in greater freedom within the captor's country or territory, on conditions stated in the parole. 123. Release of prisoners of war by exchange is the general rule; release by parole is the exception. 124. Breaking the parole is punished with death when the person breaking the parole is captured again. Accurate lists, therefore, of the paroled persons must be kept by the belUgerents. Article XII. Any prisoner of war, who is liberated on parole and recaptured, bearing arms against the government to whom, he had pledged his honor, or against the allies of that government, forfeits his right to be treated as a prisoner of war, and can be brought before the courts. 125. When paroles are given and received, there must be an ex- change of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 126. Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach. 127. No noncommissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individuals giving them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from their commands, have suf- fered long confinement without the possibility of being paroled through an officer. 128. No paroling on the battlefield, no paroling of entire bodies troops after a battle, and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is penhitted, or of any value. 129. In capitulations for the surrender of strong places or fortified camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again during the war, unless exchanged. 130. The usual pledge given in the parole is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. These APPENDIX II. 607 cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belhgerents unconnected with the paroling belhgerents, or to civil or diplomatic service for which the paroled officer may be employed. 131. If the government does not approve of the parole, the paroled officer must return into captivity, and should the enemy refuse to receive him, he is free of his parole. 132. A belligerent government may declare, by a general order, whether it will allow paroling, and on what conditions it will allow it. Such order is communicated to the enemy. 133. No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belligerent. 134. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them. , Section VIII. Armistice — Capitulation. 135. An armistice is the cessation of active hostilities for a period agreed between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties. 136. If an armistice be declared, without conditions, it extends no farther than to require a total cessation of hostilities along the front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any •express condition, the armistice may be declared null and void by the other. Article XXXVI. An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not fixed, the belligerent parties can resume operations at any time, provided always the enemy is warned within the time agreed upon, in accordance with the terms of the armistice. 137. An armistice may be general, and valid for all points and lines of the belligerents ; or special, that is, referring to certain troops or certain localities only. 6o8 MILITAEY GOVERNMENT AND MARTIAL LAW. An armistice may be concluded for a definite time ; or for an indefinite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other. Article XXXVII. An armistice may be general or local. The first suspends all military operations of the belligerent states; the second, only those between certain fractions of the belligerent armies and in a fixed radius. 138. The motives which induce the one or the other belUgerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no way affect the character of the armistice itself. 139. An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive official information of its existence. ArTiclB XXXVIII. An armistice must be notified officially, and in good time, to the competent authorities and the troops. Hostilities are sus- pended immediately after the notification, or at a fixed date. 140. Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases as soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for. 141. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabit- ants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated, the intercourse remains suspended, as during actual hostilities. ArTiclB XXXIX. It is for the contracting parties to settle, in the terms of the armistice, what communications may be held, on the theatre of war, with the population and with each other. 142. An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties. 143. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this subject that the besieger must cease all extension, perfection, or advance of his. attacking works as much so as from attacks by main force. But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or to erect new works of defence within the place during an armistice, this point should be de- termined by express agreement between the parties. APPENDIX II. 609 144. So soon as a capitulation is signed, the capitulator has no right to demoUsh, destroy, or injure the works, arms, stores, or ammuni- tion in his possession, during the time which -elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. Article XXXV. Capitulations agreed on between the contracting parties must be in accordance with the rules of military honor. When once settled, they must be scrupulously observed by both the parties. 145. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it. Article XL. Any serious violation of the armistice by one of the parties gives the other party the right to denounce it, and even, in case of urgency, to recommence hostilities at once. Article XLI. A violation of the terms of the armistice by private individuals acting on their own initiative only confers the right of demanding the punishment of the offenders, and, if necessary, indemnity for the losses sustained. 146. Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice. 147. Belligerents sometimes conclude an armistice while their plen- ipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without any abatement. Section IX. Assassination. 148. The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen or a subject of the hostile gov- ernment, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewa ds for the assassination of enemies, as relapses into barbarism. Section X. Insurrection. 149. Insurrection is the rising of people in arms against their gov- ernment, or a portion of it, or against one or more of its laws, or against 39— 6lO MILITABY GOVERNMENT AND MARTIAL LAW. an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view. Civil War. 150. 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. Rebellion. 151. The term "rebellion" is applied to an insurrection of large ex- tent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegi- ance to it and set up a government of their own. 152. When humanity induces the adoption of the rules of regular war toward rebels, (vhether 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 and 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. 153. Treating captured rebels as prisoners of war, exchangirig 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 w.tk them extending beyond the limits of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties. 154. Treating, in the field, the rebellious 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. Loyal Citizens. 155. All enemies in regular war are divided into two general classes. — that is to say, into combatants and noncombatants, or unarmed citi- zens of the hostile government. APPENDIX II. 6ll , The military commander of the legitimate govermnent, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be cla'ssified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto. 156. Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war as much as the common misfortune of all war admits. The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fideUty to the legitimate government, he may expel, transfer, imprison, or fine the re- volted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government. Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has the right to decide. Treason, 157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason. The Articles of the Hague Conference Code enumerated below are not precisely apposite to any of the sections of the Instructions for the United States Armies in the Field : Articiictionaire de la Conversation, article State of Siege). APPENDIX V. 623 Extract from the Decree of the 24th December, 181 1, Rela- tive to the Organization and Service of the MiUtary Staff of Fortresses. Chapter I. — General Provisions. Article L. Fortified places shall, in regard to their service and police, be considered under three relations — ^viz., in the state of peace, in the state of war, and in the state of siege, in accordance with Articles V.-XII. of sub-head i of the law of July 10, 1791, and subject to mod- ifications established in the following: * * * * Art. LIII. The state of siege is determined by a decree of the em- peror, by investment, by an attack in force, by a surprise, by an insur- rection, or, finally, by mustering troops within the radius of investment without the authority of the magistrates. In the case of a regular attack, the state of siege ceases only after the works of the enemy have been destroyed and the breaches put in a state of defence. In these diiferent cases the duties and obligations of commanders of troops are subject to the rules laid down further on. Chapter IV. :le :(! :): :fi 4= ^ 4: Chapter IV. — The State of Siege. Article CI. In places in a state of siege, the authority with which the magistrates were clothed for the maintenance of order and police passes in its entirety to the commander of troops, who exercises it or dele- gates to them such part of it as he thinks proper. Art. CII. The governor or commanding officer exercises this au- thority or causes it to be exercised under his supervision and in his name, within the Umits determined by the decree, and if the place is invested, within the radius of investment. Art. cm. For all crimes which the governor or commandant has not judged proper to leave to the cognizance of the ordinary courts, the duties of police justice are performed by a military provost, selected as far as possible from among the officers of the gendarmerie and the ordinary tribunals are superseded by the military tribunals. Art. civ. In the state of siege the governor or commandant deter- mines upon the service of the troops of the national guard and that of all the civil and military authorities, following no other rule than his secret instructions, the movements of the enemy, and the works of the besieger. 624 MILITARY GOVERNMENT AND MABTIAL LAW. Constitutional and Organic Laws Relating to Public Powers. ******* State of Siege Can be declared only in case of imminent danger and by the Assembly only, except in case of prorogation. Tl^aw of gth August, 1849, Articles I., II., and III.] In the colonies and in Algeria the declaration of the state of siege may be made by the governor. In fortified towns it may be made by the military commander. [Law 9th August, 1849, Articles IV. and V.; decree 29th April, 1857, Article X.] The state of siege has as a result the transfer to the miUtary authori- ties of the powers with which the civil authorities are clothed for the maintenance of order and police. [Law 9th August, 1849, Article VII. j Only the Assembly has the right to raise the state of siege when it has been declared or maintained by it. Nevertheless, in case of prorogation, this right belongs to the President of the Republic. [Law 9th August, 1849, Article XII.^ Law Regarding the State of Siege of gth August, 1849. ChapTBr I. — Cases in which the State of Siege May be Declared. ARTict turbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigor- ous war. Any pressure on the population of occupied territory to take an oath of allegiance to the hostile power is prohibited. 687. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. 688. Commanders, whenever admissible. Inform the enemy of their Intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it Is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a. necessity. 689. When a commander of a beslBged place expels the non- combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender. 690. The attack or bombardment of towns, villages, habitations", or buildings known to be not defended, is prohibited. 691. The law of war not only disavows all cruelty and all bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace and intended to remain in force in case of war betw^een the contracting powers. It disclaims all extortions and other transactions for individual' gain; all acts of private revenge, or of connivance at such acts. ' Offences to the contrary shall be severely punished — especially so If committed by officers. ' 692. A belligerent has no right to announce his intention to give' no quarter, nor can he' refuse to give auaftyr except in the case of some conduct of the enemy in gross violation of the laws of war, and then only In the way of retaliation'fRr similar acts. Under such extraordinary circumstances troops who, give no guarter still ijave no right to kill enemies already dif^abieci on the ground and who hav^ ceased fighting,' or prisoners f the enemy's territory who kill or rob, destroy bridges, roads, rail- rdads, or canals, rob or destroy the mall, or cut telegraph wires, are not entitled to the privileges of prisoners of war. WAR REBELS. 749. War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against th.i authorities established by the same. If captured, they may suffer death, whether they rise singly, in ^mall or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence. SECTION V Safe-conduct Spies. — War traitors. — Guides. SAFE-CONDUCT. 750. All Intercourse between the territories occupied by bellig- erent armies, whether by traffic, written or printed correspondence, cable, telegraph, telephone, or wireless telegraphy, or in any other way, ceases. This Is the general rule to be observed without spo- cial proclamation. ^i^ MILITARY GOVBRNMBNT AND MARTIAL LAW. Exceptions to this rule, whether by safe-conduct or by permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, or by other methods of com- munication, can take place only according to agreement approved by the government, or by sanction of the highest military authority. Violation of this rule of non-intercourse is highly punishable. 751. Ambassadors, and all other diplomatic agents of neutral powers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are mili- tary reasons to the contrary, and unless they can reach the place of their destination conveniently by another route. It implies no in- ternational affront if safe-conduct is refused. Such passes are usu- ally given by the supreme authority of the state, and not by sub- ordinate officers. SPIES. 752. A spy is a person who secretly, in disguise or under false pretences, obtains, or seeks to obtain, information in the zone of operations of a, belligerent with the intention of communicating it to the enemy. 753. Soldiers not In disguise who have penetrated into the zone of operations of a hostile army for the purpose of obtaining infor- mation are not considered spies. Similarly, soldiers or civilians car- rying out their mission openly, charged with the delivery of dis- patches destined either for their own army or that of the enemy, and likewise the individuals sent in balloons to deliver dispatches or to maintain communication between the various parts of an army or a territory, shall not be considered spies. 754. A spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in con- veying it to the enemy. A spy taken in the act shall not be punished until after trial and conviction. 755. Spies, war traitors, and war rebels are not exchanged ac- cording to the common law of war. The exchange of such persons would require a. special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. 756. A successful spy or war traitor, safely returned to his own army and afterwards captured as an enemy, Is not subject to pun- ishment for his acts as a spy or war traitor, but he may be held in closer custody as a person individually dangerous. 757. If a citizen of the United States, be he a military or civil officer or a private citizen, obtains information of military value and betrays it to the enemy, he shall, upon conviction, suffer death. WAR TRAITORS. 758. A traitor under the law of war, or a war traitor, is a pers-m In a place or district under military government who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him. APPENDIX VI. 647 759. A war traitor Is always severely punished. If his offence consists in betraying to the enemy anything concerning the condi- tion, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death. 760. If a citizen of occupied territory gives Information to his own government or its army, being separated therefrom by the hostile army, he is a war traitor, and, upon conviction, death is the usual penalty for his offence. 761. The law of war, like the criminal law regarding other of- fences, makes no distinction on account of the difference of sexes concerning the spy, the war traitor, or the war rebel. 762. All unauthorized or secret communication with the enemy is considered treasonable by the law of war. Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts,, or with the inhabitants of- the hostile country, so far as the military authority permits, but no fur- ther. Instant expulsion from the occupied territory would be the very least punishment for the Infraction of this rule. GUIDES. 763. All armies in the field stand in need of guides, and impress them if they can not obtain them otherwise. No person having been forced by the enemy to serve as guide is punishable for having done so. 764. If a citizen of a hostile and invaded district voluntarily serves as a, guide to the enemy, or offers to do so, he Is deemed a war traicor. and shall suffer death. 766. A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country. 766. Guides, when It is clearly proved that they have misled in- tentionally, may be put to death. SBCTIOX VI. — ^Exchange of prisoners, — Flags of truce. — ^Flags of protection. 767. Exchanges of prisoners take place number for number, rank for rank, wounded for wounded, with added condition for added condition — such, for instance, as not to serve for a certain period. 768. In exchanging prisoners of war, such numbers of persons (f inferior rank may be substituted as an equivalent for one of superior rank as may be agreed upon by cartel, w^hich requires the sanction of the government or of the commander of the army in the field. 769. The surplus number of prisoners of war remaining after an exchange has taken place Is sometimes released, either for the pay- ment of a stipulated sum of money, or. In urgent cases, of provisions, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. 770. The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it can 648 MILITARY GOVERNMENT AND MARTIAL LAW. not be demanded by either of them. No belligerent Is obliged to exchange prisoners of war. A cartel is voidable as soon as either party has violated it. 771. No exchange of prisoners shall be made except after com- plete capture, and after an accurate account of them, and a list of the captured officers, has been taken. FLAGS OF TRUCE. 772. An individual who is authorized by one of the belligerents to enter into communication with the other, and who carries a whice flag, is considered as a bearer of a, flag of truce. He has a right 10 inviolability, as well as the trumpeter, bugler, or drummer, the flag- bearer, and the interpreter who may accompany him. 773. The bearer of a flag of truce can not insist upon being admit- ted. He must always be admitted with great caution. Qnnecessary frequency is carefully to be avoided. 774. If the bearer of a flag of truce offers himself during an en- gagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle. 775. It the bearer of a flag of truce, presenting himself during nn engagement, is killed or wounded, it furnishes no ground of com- plaint whatever. 776. If it be discovered, and fairly proved, that a, flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a sp.v. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offence, great caution is requisite, on the other hand, in convicting the bearer of a, flag of truce as a spy. FLAGS OF PROTECTION. 777. Dressing stations, ambulance stations, and hospitals of what- ever description, or buildings temporarily used as such, whether ni besieged places, on or near the line of battle, or on the line of com- munications, are designated by hoisting the national flag and the rod cross flag of the Geneva Convention. Honorable belligerents will abstain from Inflicting intentional dam- age on establishments thus designated, and will be guided by such flags of protection as much as the contingencies of the fight will permit. 778. It is justly considered an act of bad faith, of infamy, or flendishness, to deceive an enemy by improper use of flags of pro- tection, especially of white flags and of the red cross flags reserved to designate medical establishments. Such acts of bad faith call for notification to the commander of the hostile forces and to his gov- ernment, and severe punishment of the responsible ofHcers. When in occupied territory treacherous use is made of such flags by inhabitants to convey infortnation to guerrillas or detachments of the enemy's forces, such act Is doubly reprehensible and justiflr.s instant application of severe measures. APPENDIX VI. 649 779. The besieging belligerent may request the besieged to des- ignate observatories, precious libraries, scientific museums, and buildings containing collections of works of art, so that their destruction may be avoided as far as practicable. SECTION VII. — The parole. 780. Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole. 781. The term "parole" designates the pledge of Individual good faith and honor to do, or to omit doing, certain acts after he who gives his parole shall have been released, or the conditions of his confinement modified. 782. The pledge of the parole is always an Individual, but not a private act. 783. The parole applies chiefly to prisoners of war whom the captor allows to return to their country, or to live m greater free- dom within the captor's country or territory, on conditions stated In the parole. 784. Release of prisoners of war by exchange is the general rule; release by parole Is the exception. 785. Breaking the parole is punished with death when the person breaking the parole Is recaptured after again serving in the em- my's forces. Accurate lists, therefore, of the paroled persons must be kept by the belligerents. 786. "When paroles are given and received, there must be an ex- change of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 787. Commissioned officers only are allowed to give their parole, and they can give it only with the permission of their superior, as long as a superior in rank is within reach. 788. No non-commissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not only void, but subject the individuals giving them to the punishment of death as deserters. The only aumlssible excep- tion Is where Individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled through an officer. 789. No paroling on the battle-field; no paroling of entire bodies of troops after a battle; and no dismissal of large numbers of pris- oners, with a general declaration that they are paroled, is permit- ted, or of any value. 790. In capitulations for the surrender of strong places or forti- fied camps the commanding officer, in cases of urgent necessity, may agree that the troops under his command shall not fight again dur- ing the war, unless exchanged. 791. The usual pledge given in the parole Is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts and can l>e 650 MILITARY GOVERNMENT AND MARTIAL LAW. visited with the punishment of death; but the pledge does not refnr to internal service, such as recruiting or drilling the recruits, forti- fying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service in which the paroled officer may be employed. 792. If the government does not approve of the parole, the paroled officer must return into captivity; should the enemy refuse to re- ceive him, he is free of his parole. 793. A belligerent government may declare by a general order whether it will allow paroling, and on what conditions. Such order is communicated to the enemy. 794. No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the. other hand, an act of choice on the part of the belligerent. 795. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them. SBCTION VIII. — ^Armistice. — Capitulation. 796. An armistice is the cessation of active hostilities for a period agreed upon between belligerents. The agreement must be in writ- ing and duly ratified by the highest authorities of the contend- ing parties. 797. If an armistice be declared without conditions, it extends no further than to require a total cessation of hostilities along "he front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party vio- lates any express condition, the armistice may be declared null and void by the other. 798. An armistice may be general, and valid for all points and lines of the belligerents; or special — that is, referring to certain troops or certain localities only. An armistice may be concluded for a definite time, or for an in- definite time, during which either belligerent may resume hostili- ties on giving the notice agreed upon to the other. 799. The motives which induce belligerents to conclude an armis- tice, whether it be intended as a preliminary to a treaty of peaoe or to prepare for more vigorous prosecution of the war, in no way affect the character of the armistice itself. 800. An armistice is binding upon the belligerents from the day of the agreed commencement; but the oflJoers of the armies are responsible from the day only when they receive official informa- tion of its existence. 801. Commanding generals have the right to conclude armistices binding on the district ovei!' which their comfnand extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it Is made known to the enemy that the armistice Is not ratified, even If a certain time for the elapsing between giv- APPENDIX VI. 651 ing notice of cessation and' the resumption of liostilities should have been stipulated for. 802. An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon iiy the parties. 803. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this sub- ject that the besieger must stop all extension, perfection, or advance of his works, as well as desist from attacks by main force. But as there is a difference of opinion among martial, jurists whether the besieged have the right to repair breaches or to erect new works of defence within the place during an armistice, the point should be determined by express agreement between the parties. 804. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it. 805. Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of armistice. The high.^st authority of the belligerent aggrieved may demand redress for the Infraction of an armistice. 806. Belligerents sometimes conclude an armistice while thfiir plenipotentiaries are met to discuss the conditions of a treaty of peace, but plenipotentiaries may meet without a preliminary armis- tice; in the latter case the war is carried on without any abatement. 807. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the in- habitants of the territories occupied by tne hostile armies shall be allowed, if any. If nothing is stipulated, the intercourse remains suspended, as during actual hostilities. 808. As soon as a capitulation is signed the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. SECTION IX. — Insurrection. — Civil war Rebellion. 809. Insurrection is the rising of people in arms against thair 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 coa- fined to mere armed resistance, or it may have greater ends in view. 810. Civil war is war between two or more portions of a country or state, each contending for the mastery of the Whole, and eaoh claiming to be the legitimate government. The term is also some- times applied to war of rebellion, when the rebellious provinces ■■•r portions of the state are contiguous to those containing the seat of government. 811. The term "rebellion" is applied to an insurrection of large extent, and is usually b, war between the legitimate government of 652 MILITARY GOVERNMENT AND MARTIAL LAW. a country and portions or provinces of the same who seek to throw ofE their allegiance to it and set up a government of their own. 812. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it in no way implies a partial or complete acknowledgment of their gov- ernment, if they have set up one, or of their existence as an inde- pendent and 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. 813. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agree- ments with them, addressing officers of a rebel army by the rank they may have in the same, accepting flags of truce, or, on the othf contest. 242, 243. 244, 245. Defeat, all who attempt to, martial law, may be arrested, 589. Defence, to civil authority by the mil- itary, 551. Despotism, military, reconstruction of, 549. Destructioi), or use of property creates distinction in payment, 208. Of private pronertv, as well as ap- propriation, 217. 218. Of private property as punishment, 219. 220. What property may be, 221. Wanton, when allowable, 259, 260. Right to, same as to appropriation, 265. Of warlike stores, 266. Private property, 267, 268. Dicey- on subordinates' rule, 671. Discipline, of camp, original martial law, 363, 364. Discretion, of President when State calls for assistance, 561. Of authority in the field, English rule, 583. Of military, in re rules of evidence, 625, 626. 628. Of authority, ortlcials to keep within, 631. Disinclination, of officials, cause for martial law, 465. Disloyalty, cause for military rule, 488. 489. Inimical to courts, 495. Disposition, on part of some to ques- tion legality martial law tribunals, 606. District, martial law, responsibility for arrest outside of, 509, 510. Of Columbia Civil War, military con- trol, 538, 539. Divisions, in Missouri, 520. Documents, rule for seizure of incorpo- real rights. 236. Domestic, martial law is, 358. Martial law, civic responsibility characteristic of. 381. Disturbances, military called in, in U. S.. 498. Violence, case of. Federal Government should be called in, 558. Dominant povrer, decides character of government, 20, 21. May authorize trade when, 272, 273. Regulates Introduction merchandise and persons, 291. Government concedes what rights, when, 350, 351, 352. Doroteo Cortes, Manila, case compul- sory absence, 233. Drafts, evasion of. martial law meas- ures taken, 527. • Drastic measure, martial law, 244, 245. Duty, of military government, int., 12, *2. , , Of citizens to suppress lawlessness, 444. Of ofHoers, protection, 533, 634. And patriotism, course for officers to pursue, 654. Of military, 689. 66o MIUTARY GOVERNMIJNT AND MARTIAI, LAW. Elfflclent system, in administering mar- tial law, 584. EUpblnstone vs. Bedreecbund, 151. Kmergency, in case of, common law recognizes customs of war, 448. In case of. officers to have consider- ation, 653. Elnemy, territory and military occupa- tion, 49 to 56. Rule in re property of, 169. Right to seize property of, 170. "Who has right to seize property of. Debts not confiscated, 223, 224. Property of, rule for confiscation, 225, 226. Property of, under military occupa- tion, 227. Property of, at purchaser's risli, 237, 239. Property of, right to destroy, 265. Exception to rule of no trade with, 292. Proximity of, cause for martial law, 477. Enforcement, of military governmert, 75 to 91. Martial law, court's attitude, 602, 603. 604. Elnglisli iuTlspradence, origin martial law, 361, 362, 363, 364. Bills of indemnity, 677. Bnglisli history, deceptive nature of, 506. Bnglish rule, responsibility in the field, 583. Einslavement, property taken instead of, 209. B-raslon, of draft, martial law meas- ures, 527. Evidence, rules of, before military tribunals, 624. Rules of, not part of business of mil- itary officer, 625, 626, 628. Rules of, British, 627. Bvidences, ot lawless spirit in the land, 577. Ex contractu, actions, 316. Ex delicto, actions, 316. Actions, case of Mitchell vs. Harmo- ny, 318. Executive, implied powers of, re mar- tial law, 369. State, martial law, occasion neces- sity, 567. 568. Executive officers, to be sustained, 635. Consideration for, emergency; 653. Exempting property from seizure and levies en masse. 212. Exemplary damages, not assessed if superior acts in good faith, 663. Exercise of military authority, not cause for alarm, 688. Ex-members army, where triable, 148. Expediency, not affect rule non-inter- course, 279, 280. Expediency, right to rebel a question of, 296, 297, 298. Martial law eschews, 459. Failure of civil administration creates necessity martial law. 459. Posse comitatus, resort to military, 579. Fears of early patriots re martial law. 432. That martial law, an assumption of authority, 450. Federal authority, to institute martial law, 497 to 539. Federal matters. President independ- ent, 501. Federal martial law, kjongress power to establish, 540. Distinct from that of States and Ter- ritories, 554. Federal cognizance, republican gov- ernment, 556, 557. Federal protection, to be called by State, 558. Federal, limit of, authority in State, 565. Federal cart, proper forum for trial Federal officers, 652. Felony, rule responsibility in case of attempted. 446. Females, treatment of, 96. Force, paramount, rights of conqueror, 250, 251. In re state property, 262. Force, armed, common law lacked, 441. Common law, 442. Force, physical, disloyalty as inimical to courts as, 495. Force, justified in attaining ends of martial law, 587. 588. Foreign territory, military govern- ment. 11. Foreign Trars, no confiscation by Con- gress, 180. Foreign state, no necessity to compli- cate state, 306. Foundries, right to destroy, 266. France, occupation of, 17. Proclamation King William, 94. German practices In, 100. Wellington in, 300. Franco-German War, ruling in re mil- itary government control, 192. Friendly soli, foreign army, 114, 115. Gen. Gage, martial law in Boston in 1775, 453, 454, 455. General of army, authority augmented, 548. Generous policies, when misunder- stood, B23. Germany, practices in Prance, 100. Germans, at Strasburg-, 301. German theory, of contributions, 213. INDEX. 66i Chtvemment, war powers, limit, '10. Defects, acts of, depend on what, 242, 243, 244, 245. | Debts due old government paid to new, 262. Military occupation, rights of old government revert, 253, 254, 255, 256. 257. , Ousted, claims of, 263, 264. Determines course in civil war, 270. Property of, may be alienated when, 271. Home, controls military governor in re trade. 277. Necessities of, and personal rights under martial law, 383, 384. Under different, martial law varies. 386. Power of, to exercise martial law, 438. Resistance to, met by martial law, 505. United States, power of Congress, 541. Great Britain, U. S. treaty, in re con- fiscation, 224. Guarantee, of Art. IV., Sec. 4, Constitu- tion, 555. Guerillas, military occupation, 45. 102. And levies en masse, 106 to 112. Guerilla warfare, 103. Inefficient against regular opera- tions, 299, 302. H Habeas corpus, suspension of, in New •Mexico, 512. Privilege of, in Colorado, 513. Close relation in power to suspend and martial law, 526. President and Congress exercised power to suspend, 58S. Hagrue Conference, appropriation. 199. On punishment of community for act of one, 205. Hampton, McConnell -vs., 642. 643. Not a precedent to-day, 645. Hardship of Tvar, relieved by legisla- tion, 319, 320. HaxdsUp anbordlnate rule, modified, 660, 661, 662. Harmless acts, under civil conditions, may be offences martial law, 586. Harmony, Mitchell vs., 318, 332. Hostages, 206. Hostile territory, rule for confiscation. 225, 226. Hostilities, active, war may exist though, cease, when. 354. Human tendencies, int., 11. Ignorance, of laws of evidence by mil- itary men, 625. niegal, orders of superior executed by subordinates, 660, 661, 662. Implied obligations, of conqueror to private and state property, 269, 270. Immunity, in customs of war, 636. Incorporeal rights, rule same as to corporeal, 229. Purely personal, not confiscable, 231, "What may be seized, 235. Rule for seizure, isae. Individuals, have right of self-defence, 480. Indemnity bills, 677 to 690; see Bills of indemnity. Indemnity Act, passed by Congress, 553, 654. Inertness of officials, may justify mar- tial law, 473, 474, 475. Inhabitants, all enemies, 92 to 112. Initiative, taken by commander, when, 593. Ireland, Parliamentary martial law in, 382. Martial law in, 388. Irresponsible officials, martial law, not to set up. 426. Institutions, treated with respect, 622. Instructions for Armies in the Field, 118, 302. Insurrections, and duty of society, 23. Against military government, 296 to 304. Measures to take in case of, 303. Policy of U. S. in Philippines, 304. International codes, comparisons, int., 8. 9. Intendment, construed favor command- ers, 322. Intercourse, of trade stopped by war, 285. Time when, and where, becomes il- legal, 289, 290. Exceptions to rule in re enemy, 292. Restrictions, a rule of war, founded on public policy, 295. Invaded country, tribunals of, have no jurisdiction over members of in- vading army, long occupation does not change this rule, 149, 150, 161, 152, 153, 164. Invading army, not subject tribunals of invaded country, long occupa- tion does not change this rule, 149, 150. 151, 152, 153, 154. Invasion, may justify martial law, 466, 467, 468. 469, 470. Justification for martial law, 478, 479. Of State, Federal Government assists, 557. Invoking, of martial law tribunals, 620. Jamaica, martial law courts of, roy.al commission, 618. Judicial opinion, in U. S. re martial law power, 596, 597, 598. 662 MILITARY GOVERNMENT AND MARTIAL LAW. Judicial decisions, confiscation, 184. Judicial system, in New Mexico, 120. Of Gen. Scott in Mexico, 121, 122. Judicial tribunal, of deposed state, ef- ficacy of judgment after military occupation, 168. Judiciary, local, in territory of rebels as belligerents regulated by con- queror, 123, 124. Judiciary Tvar, Memphis, Tenn., 126. Judges, officials acting as, have discre- tionary powers, 323. Responsibility of commanders same as, 326, 327, 328, 329, 330, 331. Of necessity for martial law, Eng- land, 414. Of necessity for martial law, state, when, 429. Those who execute martial law to be, of principles, 471. In Louisiana case, 1814 and 1815. 601, 601, 602. Judgments, efficacy, supreme judicial tribunals of state, when, 168. Judgments, in peace and in turbulence, 649. Jurisdiction, military, int., 1. Effect of abandonment by expelled state, 46. Of war courts extended, 139. Civil, of war courts, 131. Criminal, military commission, 134. General, provost courts, war courts, 135, 136, 137. Of tribunals of invaded country no control over member of invading army, long occupation does not change rule, 149, 150, 151, 152, 153, ■154. Of war court as to persons, 341. Limit of Federal, in State. 565.- Martial law courts, depend on, what, 612. Martial law courts, territorial limil;, 614. Limit in re time of offence,^ 615. Of military tribunals, malicious acts, 676. Justice, substantial, the end of martial law courts, 621. Justification, of martial law, 439 to 496. Of martial law, 462. Terror may be a, for martial law, 472. 473, 474, 475. Self-defence a. for martial law, 481. Attitude of people Louisiana, neces- sitated martial law. 482. Martial law, when, 524. Of official and private citizen. 632. K Kentucky, Lincoln's course In, 492, 493, 494. Conditions In, in 1864, 496. Keynote, martial law, necessity, 582. King; William. Prance, proclamations, 94. Land and sea, property captured on, 200. LaTy, of nations, 9. Will of conqueror is, when, 61. As to l)ersons and property, 116. Martial, 357 to 690. Military, 360. All, abolished, will of commander, 424. Strictly construed, what and how, 533, 534, 535. Governing those interfering with martial law, 646. Of the camp, 581. LaTTS of evidence, 624, 625, 626, 627, 628. LaYvs, applicable to neutrals, when, 163, 164, 165. Political, cease on occupation, 67. Of occupation, to whom applicable, 142. LaTTs of Tvar, limit government war powers, 10. In occupied territory, 113 to 168. Those subject to, 143, 159. Commanders under, 187. Confiscation law shall not interfere with, 185. Destruction under, when, 259, 260. Limit commanders, 305. Direct responsibility of commanders, 313. Basis of martial law^, belligerents, 380. Military government as part of, con- founded with martial law, 425. Military commission based on. 609. I^aTrlessness, duty of citizen to sup- press. 444. Frowned upon by courts, martial law, 604. Latent spirit of rebellion, martial law measures, 546. Legal life, military government, 25. Legal construction, of Articles of War, 157. Legality, of military occupation, 34, 35. 36. Of acts of government officers may be inquired into, 314. Martial law tribunals questioned, 606. Martial law tribunals, 607. Legislation remedial, to meet hard- ships of war, 319, 320. Legislation, impugning power of Presi- dent, 517. Legislative martial law, what indem- nified, 678. Legislature, has right self-defence, 480. Levies en masse, guerillas, 106 to 112. Exempted property, 212. License, President power to, trade, 281. Bill of rights not a cloak for, 591. INDEX. 663 Limit, of authority Federal jurisdiction in State, 665. Of authority, officials to act within, 631, Jurisdiction, in re time of offence, 615. Lilmltaticms, of military government, 32. Lincoln, course of, in re Rebellion, 491. Course of, necessary in Kentucky, 492, 493, 494. Proclamation of, September 15, 1863, 530. Local administration, effects of occu- pation on, 57 to 74. Local disturbances, martial law in- voked In, 379. Local autborltles fall. President to call in the military, 499, 500. Loyalty, donbtfnl, ot people Louisiana necessitated martial law, 482. Louisiana case, 1814-1815, attitude of judges, 600, 601, 602. M Magazines, right to destroy, 266. Manila, capture of, sovereignty Spain, 48. Doroteo Cortes, compulsory absence, 233. Smith, Bell & Co., reverting rights, 254. Martial lavr, limit, int., 3, 4, Int., 13 to 25. Part II., 357 to 690. Definition, 357. Domestic and unwritten, 358. Confounded with military law, 360. Origin, 361, 362, 3631 364. Supplements civil law, 365. Applies to soldiers and civilians both, 366. Practice under Charles I., 367. Scope of, 368. Implied powers of executive re, 369. Southern Confederacy, 370. Theatre of, not necessarily of war, 372 Obtains when civil authority fails, 373. Those who enforce, answerable be- fore courts, 374. When to be invoked, 375. Resort to, a common practice, 376. As belligerent right, 377. Who judges of necessity for, 378. Invoked to suppress local disturb- ance, 379. As belligerent right based on laws of war, 380. Domestic, what characteristics, 381. Parliamentary in Ireland, 382. Necessities of government and rights of people under, 383, 384. Times of peace in TJ. S., 384. When to be invoked, 385. Martial law, under English Jurispru- dence, 386 to 496. Varies under different governments, 386. Under British Government, war con- ditions, 387. In Ireland, 388. Features of, statute, 389, 390. In British colonies, 391. Acts in colonies, prosecuted at home, 392. Courts, to try offences after active disorder, 393, 394. British tribunals, character of, 395. British, military act, those subject to, 396. British, royal prerogative, 397. British, distinction, military law, 398. British, English jurisprudence, 399, 400. British, In time of peace, 401. British, may obtain, when, 402, 403. Unknown to British jurisprudence, though not experience, 404. British, idle fears of domination of, 405. British, obtains on failure of civil ad- ministration, 406, 407. British, principles for enforcement of, 408, 409, 410, 411, 412, 413. British, who judges of necessity, 414. British, civil responsibility of mili- tary officer of, 415, 416. British, rules of courts -martial, to be used in, 418. Methods of enforcing, vary, 419. Theory of, in U. S., 420 to 440. In U. S., in England, 420. Attorney-General's definition of, 421, 422, 423. Function of officer executing, 422, 423. Confounded with military govern- ment, etc., 425. Not setting up irresponsible officials, 426. View of Supreme Court, 427, 428. Held illegal when, 428. Legally established, and abuse of power, 430. Necessity for martial law in 1814-15 in New Orleans, 434. Universal demand dictates measures, 435. A war measure in U. S.. 436. Offspring of necessity in U. S., 437 to 440. Experience of Confederacy and U. S , 439, 440. Supplements common law, 441 to 458. Came to aid of common law, 449. Fears of, usurping authority, 450. Inadequacy of common law, credited the, 451. In Boston, by Gen. Gage in 1775, 453, 464, 455. 664 MILITARY GOVEHNMENT AND MARTIAL LAW. Martial lavr, a war measure in Ameri- can colonies, 456. -Necessity overwhelming justification, 459. Military law supreme, 460. Necessity for, varies, 462. When necessity may exist, 463, 464. Disinclination of, civil officials cause for, 465. Justified by invasion, 466, 467, 468, 469, 470. Principles for judges of, 471. Justified by terror, 472. Justified by secret machinations, 47.S, 474, 475. At New Orleans after peace, 476. Proximity of enemy, cause for, 577. Inviasion the necessity for, 478, 479. Justified under right of self-defence, 4S1. In Louisiana, 482. By Federal authority, 497 to 539. Invoked by Federal or State author- ity, 497. U. B. Supreme Court on State exer- cising, 504, 505. U. S. Supreme Court held, a state of war, 507. Under, military not subordinate to civil authorities, 508. District, responsibility for arrest out- side of, 509, 510. During reconstruction, 511. State of Missouri, 515, 516. When may be exercised, 517, 518. Continued as necessity, during war. 519. Principles enforcing, defined, 521. Respect paid by, 522. Generous policy of, 523. Justified when, 524. Baltimore in 1863, 525. Close relation power to order, and suspension habeas corpus, 526. Measures taken in evasion of draft, 527. Right of arrest, trial, punishment, 528. Proclamation of Lincoln, September 15, 1863, 529. Measures revoked by President, Civ- il War, 537. Congressional, 540 to 553. Congress, power to establish, 540. Reconstruction. 542. Military administration of recon- struction. 543. Powers of Congress, emphasized, 544, 545. States and Territories. 554 to 583. In States and Territories, distinct from Federal, 554. Authority of President when called in State, 566. Necessity, Confederacy, 570. In Territories of Union, 571, 572, 573, 574, 575. martial lavr. New Mexico, Arizona, 575. Declaration of, not necessary to ef- fect, 580. Necessity, keynote of, 582. Administration of, 584 to 604. Should be administered efficiently 584. Offences and how dealt with under, 585. Offences under, and civil conditions, 586. Force to attain ends of, justified, 587, 588. . All attempts defeat, subject to ar- rest. 589. Authority, Webster's view, 592. Powers, change in judicial opinions in U. S., 596, 597, 598. Courts enforcing, 602, 603, 604. Tribunals, 605 to 629. Tribunals, correspond to offences of the times, 606. Tribunals, legality of, questioned. 606. Tribunals, power to accomplish pur- pose of, 607. Courts not to interfere with courts- martial, Gil. Jurisdiction of, depends on what, 612. Courts, responsibility courts-martial attach to. 613. Courts, territorial limits, jurisdic- tion, 614. Courts, follow procedure of courts - martial, 616. Responsibility, opinions of officers as to customs of war of great weight. 617. Courts of Jamaica, character, 618. Courts, not'same precision as in civil courts, 619. Tribunals, when invoked. 620. Courts, adjustment procedure, 621. Only instituted by rnilitary in thea- tre of war, 623. Tribunals, rules of evidence, 624, 625, 626, 627, 628. Responsibility of commanders, 630 to 656. Necessity for. may be inquired into by courts, 630. Measures, civil courts should remem- ber, 644. Bills of indemnity, 667 to 690. What indemnified. 678. Legally instituted, bill of indemnity statute of repose, 680, 681. Martin vs. Mott, rule of obedience in, 665. Malicious abuse of authority, officials guilty of, 631. Malicious acts, of members of tribun- als, 676. Measures, which survive military oc- cupation. 195. Measures of war, martial law in U. S., 436. INDEX. 66s Measure of war, martial law a, in American colonies, 456. Measures, martial lavr, evasion of draft, 527. Measures, of President subject to Con- gressional discussion, 529. Measures of relief, military supported by loyal civil autliorities, 552, 553. McClellau, Gen., orders in Peninsular campaign, 125. McCounell vs. Hampton, 642, 643. Not a precedent to-day, 645. Mercy, of conqueror, 117. Of American armies, 118. Mercliandise, entrance or, into terri- tory of military occupation, 291. Memphis, Tenn., seizure of rents, 47. War judiciary, 126. Instance of authority of commander, 128. Merryinan case, opinion Chief - Justice Taney, 490. Mexican War, instructions for supply, 79. Mexico, judicial system Gen. Scott, 121, 122. Conduct of Gen. Scott invoking war court, 335. Military, when judges necessity for martial law, 378. When necessary to resort to, 485, 486, 487. Employed in early U. S. to auell dis- turbances, 498. When, not subordinate to civil au- thorities, 508. Military, the, regard for civil adminis- tration. 550. Supported by civil authorities, 552, 553. Statute authorizing, to pay regard to civil jurisdiction, 60. President determines under whom, troops shall act, 562, 563, 564. Placed about State authorities, when, 669. Increase in demand for, 576. Resorted to on failure of posse com- itatus., 579. Upheld by courts, when, 602, 603, 604. Only institute martial law at theatre of war, 623. When have rights and obligations of war, 623. Exercise of martial law over civil community not attractive to, 089. To be sustained, Tvhen, 690. Military administration, of reconstruc- tion, martial law, 543. Military authority, supreme when, 4o0. Over civil community, 622. Military commission, criminal jurisdic- tion, 134. Based on statutor^^ law and laws of war, 609. Territorial limit, 614. Procedure, 615. Military control, assumption of, in Ari- zona, 514. District of Columbia, Civil War, 538, 539. Military domination, fears of, England, 405. Military despotism, reconstruction acts, 549. Military duty, officers protected in their, 533 534. Done in military way, 656. Military governor, prescribes the laws, 69. Appointment of, 84, 85, 86, 87, 88. Attitude of, in re trade, 277. Military government, int., 1 to 12, 13, 14. 1 to 356. Of cities, 133. Control of and exceptions, 189, 190, 191, 192, 193. Destruction of property under, 219, 220. Old State rights, when revert, 253, 254, 255, 256, 267. Authority of commander, limit, 305. Those enforcing, may be Investi- gated, 314. Vigilant and prompt, 324. Tribunals, 333 to 343. When ceases, 344 to 356. Confounded with martial law, as part of law of war, 425. Military law, 357 to 385. Confounded with martial law, 360. British, distinction between martial law and, 398. Military measures, in Southern States, 546. Military occupation, extent of legality when, operation, 33, 34, 35, 36. And blockade, 42. And tactics and by force, 43, 44, 45. Enemies' territory, 49 to 56. Laws of, to whom applicable, 142. Laws applicable to neutrals, 163, 164, 165. Efficacy of judgments, of courts of former government, 168. Measures which survive, 195. Enemy's property under, 227. Effect on property, 234. What not confiscable under, 241. Property purcliased under, 245. 'State rights revert after, 253, 254, 255, 256, 257. Rule in re merchandise taken into, 291. Military officers, enforce occupation, 75. State sustains, 315. Civil officers. British, 416, 417. Respect civil authori,tieS, 433. Protected by Indemnity Act, 533, 534. Military power, abuse of, 432. When to be invoked by President, 499, 500. 666 MIUTARY GOVERNMENT AND MARTIAL LAW. Military responialblilltT', 311. 312; see Re- sponsibility. To neutrals, to state subjects,- 317. Rule ameliorated in modern times, 664. Military mle, disfavored by colonies, 462. Disloyalty a cause for, 488, 489. MilltaTy system, demands obedience, 657. Military tribunals, summary authority, 608; see Tribunals. Responsibility ol member of, 673, 674. Missouri, martial law in, 515, 516. Divisions in, 520. Mitchell vs. Harmony, 318, 332. Mobs, New York city in 1863, 461. Moderation, to conquered not obliga- tory, 96, 96. Municipal laws, 62, 63, 64, 65, 66. Mutiny Act, British martial law, 396. N Napoleon in Spain, 45. JVapoleon, vrars of, propert-" 256. Nations,, have right of self-defence, 480. JVavy officers, responsible to President, 308. Necessity, rule of, in Mitchell vs. Har- mony, 332. Determining when military govern- ment ceases, 344. Of martial law, 375. Of martial law, who judges, 378. Of government and rights of people under martial law, 383, 384. Maltes martial law lart of English jurisprudence, 400. Of British martial law in times "f peace, 401. Of British martial law, who judges of. 414. For martial law, when State is judge of. 429. For martial law, in New Orleans in 1814 and 1816. 434. Cause of martial law in U. S., 437 to 440. Gave martial law acceptance, 451. Justification martial law, 459 to 496. Of martial law, varies, 462. When may exist, for martial law, 463, 464. Disinclination of officials, cause, mar- tial law, 465. Of repelling invasion cause for mar- tial law, 478, 479. When, for military, 486, 486, 487. Martial law continued as, during war, 519. Martial law, ■=""*- executive, 567, 568. Martial law. Confederacy, 570. Keynote martial law situation, 582. For martial law, may be inquired into by courts, 630. For sustaining officers, 635. Neasle, Supreme Court in re, 651. NcTv Mexico, President as commander in-chief, 15, 16. Judicial system, 120. Suspension of habeas corpus in, 512 Martial law In, 575. New Orleans, occupation of territori-. 82 War courts, 132. Martial law in 1814-1815, 434. Martial law, 476. New "roTlE city, mobs In 1863, 461. Neutrals, laws applicable to, under military occupation, 163, 164, 166. Their trial for criminal offences, 166 Transitory actions accruing to, 167. Responsibility to neutrals, 317. Non-combatants, duty of, 99, 100. Non-intercourse, expediency no effect on rule of, 279, 280. O Obedience, to lawful orders of supe- rior, 657. Rule of, in Martin vs. Mott, 665. Obligations and rights of Trar, to be followed by military, 666. Occupied territory, what law prevails. 113 to 168. Officers, entitled to every considera- tion, 637. Entitled to support, 647. Must be governed by customs of war. 648. Protected by statute, 650. Officers, Federal, triable in U. S. courts 652. Officials, disadvantage of two sets of 86, 86, 87, 88. State sustains military, -316. Responsibility of, in judicial matters, 323. Responsibility of. In British military law, 415, 416. Military and civil, British martial law, 415, 416, 417. Functions of, executing martial law. 422. Officials, Irresponsible, martial law not to set up, 426. Officials, responsibility of, in martial law extension of common law rule, 431. Disinclination of civil, njay be causa for martial law, 465. Protected by indemnity act, 533, 534. Responsibility, of martial law, 630, 631. Justification of, 632, 633. Sustained by Supreme Court, 634, 635 Offences, trial of neutrals, 166. After active disorder, martial law court, 393, 394. Under martial law, 585, 586. Under martial law, tribunals, 605. Time when, limit jurisdiction, 615. Omnipotence, of Congress under U. S. Government, 541. INDEX. 667 Open reatstance to Intra, authority of martial law, 594, 595. Operations, regcnlar, Inefficiency guer- illa warfare, 299-302. Opinion, In Louisiana case, 1814 and 1815, 600, 601, 602. P Parliamentary martial law, Ireland, Parties, In public war, 4. Compulsorily absent not bound, 232 233. Parties, private. Immovable property not confiscable, 240. Patriots, fear of martial law by early, Patriotism, proper course for officer, 654. Payment, to new government of debts due old government, 252. Peace, fully established before war ceases, 354. Peace, tunes of, martial law In U. S.. 384. Demand for martial law in England, 401. Armed force, 443. Martial law at New Orleans even after, 476. Peninsular campalsrn, Gen. McClellan's orders, 125. People, war brought home to the, 286. People snbjngated, responsibility of commander toward, 313. People, rights of, when civil govern- ment succeeds military, 350, 351, 352. Perseentfons, officers protected from, 533, 534. Persons and property, laws affecting, 116. Persona, in territory of military occu- pation, 291. Jurisdiction war courts as to, 341. Petition of rlgrht, w^hen martial law obtains in England, 401. Philippines, illustrating government, 21. V Character military government, 90. '" Guerilla warfare, 103. Insurrection, revenues claimed, 264. Insurrection policy of II. S., 304. Pillage, unlawful, 210. Plenary powers, provisional courts, courts of record, 140. Appoint war courts, judicially set- tled, 141. Political vietva, modify powers of com- mander, 71. Political goTcmments, experimental, 87, 88. Police power, depends on circum- Policy, foundation of, In occupation, 80. 81- Military, determined by whom, 278. Policy, of trade. Treasury Department, 282. Of tJ. S. in re insurrection in Phil- ippines, 304. Local, in re territory of rebels, 307. Of IT. S., as to rio-hts of people after military government, 351, 352. Generous, misunderstood, 523. Involved in bills of indemnity, 682. Possession, rule for seizure In, Incor- poreal rights, 236. Title of conqueror only on, 238. Posae comltatns, weakness of, 578. Failure of, 579. Post llminlum, what vests title, 228. Powers, express and Implied, 7. War, 8. What, determines policy, 278. PoTvers, implied, of executive in re martial law, 369. PoTvers, military, fears of, 432. POTrers of government, to exercise martial law, 438. PoTrers, all, placed In commander-in- chief, 457, 458. Prejudice, early, disfavored military rule, 452. Preservation, of rights of all, question, 666. President, meeting war emergency, 5. Powers as commander-in-chief, 14, 15. Political governments, 88. War power of, 138. Autnorlty to license trade, 281. Army and navy officers responsible to, 308. Authorized to call in the military. when, 499, 500. Independent in Federal matters, 501. Authority of, may be entrusted to subordinates, 502. Confirmed martial law In Missouri, 616. Subject to Congress, when, 529. Revokes martial law measures, end Civil War, 537. Authority of, impugned '--- Congress, 547. Decides what State, authorities to recognize, 559. Exercise discretion when State calls for assistance, 561. Determines under whom the military to act, 562, 563, 664. Authority of, complete, when called In by other State, 566. Exercised power to suspend habeas corpus, 588. President Lincoln, course of, in Rebel- lion, 491. Principles, applicable to military gov- ernment, 30. Applicable to martial law, by whom, 471. Enforcing martial law defined, 621. For enforcing British martial law, 408, 409, 410, 411, 412, 413. 668 MILITARY GOVKRNMgN* AND MARTIAL LAW. Procedure, military commission same as court-martial, 616. Of martial law courts, 621. Proclamation, not necessary, if issued, effect of, 24. , Of Lincoln, September 15, 1863, 530. Property, private, rights, 169 to 245. Appropriating, 172. Property rlgbts, in vanquished states, 175. Property, rule of enemies', 169. Right to seize enemies', 170. Who has right to seize enemies', 171. When belone-s to State, and how, 197, 198. On land and sea, 200. 'Taking of, as coercive measure and exceptions, 201, '?n2, 203. Taken in lieu of enslavement, 209. Pillage of, unlawful, 210. By contribution, 211. Property, real and personal, no distinc- tion in taking, use or destruction is the distinction, 208. Property, exempted, levies en masse, 212. Taken on battle-fields, 214. Private, 4th rule, may not be seized, 216. Private, destroyed as well as appro- priated, 217, 218. Destroyed as punishment, 219, 220. Kinds that may be seized or de- stroyed, 221. Of enemy, rule for confiscation, 225, 226. Enemy's, under militar-- occupation, 227. Movable private, what vests title "post liminlum," 228. Rules of corporeal same as incorpo- real, 229. Immovable, under military occupa- tion not ipso facto, 234. Immovable, when may be seized, 235. Rule for seizure of incorporeal rights, 236. Purchaser of enemy's, at own risk, 237, 238, 239. Immovable, of private parties not confiscable, 240. Private, under military occupation may be alienated unless forbidden, 241. Private, acts of de facto government in re, 242, 243, 244, 245. Purchased under military occupa- tion, 245. Private, to be protected from unnec- essary destruction, 267. Private, obligation of conquerors, 269, 270. Public, 246 to 271. Of State, seizure, no tenderness, 246. Of State, seizure gives title, 257. Discriminates in movable and im- movable, ,248. Property, title acquired by conqueror how, 249. Reversion of rights in, when, 253, 254, 255, 266, 257; Public, wanton destruction, when, 259, 260. Of historical value, to be preserved. 261. Immovable state, paramount force, 262. Right to destroy same as to appro- priate, 265, 266. Public, obligation of conqueror, 269, 270. Government, to be alienated when, 271. Promptness, military government to exercise, 324. Prosecntlona, at home, for martial law acts in colonies, 392. Protection, and allegiance of inhabit- ants, 26, 27, 29, 30. To officers by Indemnity Act, 533, 53-1. Of State by Federal government, 558. Of officers by statute, 650. Provisional conrts, plenary powers, courts of record, 140. Provost conrts, general jurisdiction, a war court, 135, 136, 137. Proximity, of enemy, cause for mar- tial law, 477. Public policy, foundation, rule of non- intercourse, 295. Punishment, of community for act of one member, 204. Of community for act of one member, Hague Conference, 205. Punishment, right of, martial law, 528. Purchasers, at own risk, 237. Purchases, under Confederate confisca- tion acts, 244, 245. Under military occupation, 245. R Rebel, right to, one of expediency. 296. 297, 298. Rebels, territory of, treated as bellig- erents in local justiciary, 123, 124. Territory of, local policy. Rule of confiscation, 178. Rebellion, common law not suited to case of, 483. Lincoln's course, 491. Spirit of, cause for drastic measures. 546. Reckless spirit, abroad in the land, 577. Rcconstriction, Civil War, martial law during, 511. Act, amounts to martial law, 542. Military administration of, martial law, 543. Acts, military despotism, 549. Regular Army, deference to civil au- thority, 551. Relation, between power to suspends habeas corpus and to order mar- tial law, 526. INDEX. 669 Relief, for military, support of civil authorities, 552, 553. Reluctance, cause of drastic measures martial law, 544, 545. Remedial le^slatlon, to meet hard- ships of war, 319, 320. Rents, seizure of, 47. Repressive measures, in insurrections, 304. Reprisal and retaliations, attempts to avoid, 55. Republican government, what consti- tutes, matter of Federal cogniz- ance, 566, 657. Responsibility, of commanders, 305 to 332. Of Army and Navy officers, 308. Of subordinates, 309. Kind of, of commanders, 310. Military, 311, 312. Of conqueror, when and what, 31'' Military, to neutrals and subjects of dominant state, 317. Of official in judicial capacity, 323. Rule Cor, of subordinates, 325. Rule for, of commanders, same as of judges, 326, 327, 328, 329, 330. 331. Of commander appointing military commission. 33 1. Of members of war courts, 338. Rule of, members of war court, 340. Civic, characteristic of martial law, 381. Civil, of military officer of martial law, Bngland, 415, 416. For abuse of power, martial law, 430. Of official, common law rule, martial law, 431. For accidentoi killing, 445, 446, 447. For arrests out of martial law dis- trict. 509. 510. English rule for, in the field, 583. Court-martial attaches to martial law courts, 613. Of commanders, martial law, 630 to Of officials, 630, 631. 632. Rule of. in ancient times, 638. Of subordinates, 657 to 676. Military, in modern times, 664. Responsibility rule, of subordinate and superior. 666, Of subordinate, 667 and 668. Of subordinate special, 669. 670. 671. Of subordinate not absolute 627. Responsibility, of member of military tribunals same as orders to an in- dividual. 673, 674. Of tribunals, 675, 676. Revenues of property, in military oc- cupation do not belong to ousted government, 263, 264. Resistance to laws, authority martial law, 594, 595. Rigbt, to establish military govern- ment, 19, 22. Rigbt, of people when civil govern- ment succeeds military govern- ment,. 350, 351, 352. Of the few, gives way to preserva- tion of the many, 371. Of people, necessities of government under martial law, 383, 384. Of arrest, trial and punishment, martial law, 528. Rights and obligations, of the mili- tary, 656. Riot Act, attempt to quell rebellion, 484. Risk, purchaser takes at own, 237, 239. Royal prerogative, British martial law. 397. Rules of evidence, before martial tri- bunals, 624. Military officers, 625, 626, 62S. British, 627. Sacfclng:, cities of Spanish Peninsula, 215. Sacrifice, of rights of few, when, 655. Salutary character, of subordinates' rule, 667. Scott, Gen., Judical system in Mexico 121, 122. Conduct in Mexico, invoking war court, 335. •Secret machinations, may justify mar- tial law, 473, 474, 475. Authority martial law, 594. 595. Seizure, 4th rule private property, 216. "What may be subject of, 2Z1. When property may be subject of. 235. Of state propert-- 246. Grives title of state property. 247. Of works of art, 258. Self-defence, a right of courts and oth- ers, 480, Justification of martial law, 481, Severity, of subordinates' rule, 659. Smith, Bell & Co., Manila, old State rights revert. 254. Smith, Thorington vs., 243, Society, duties of, under insurrections, 23, Allegiance and protection basis of, 29, South Africa, character military gov- ernment, 91, Guerilla warfare, 103, British experience, war courts, 343, Southern States, snirlt of '■"'^ollion caused drastic measures, 546, Soldiers and citiaiens, laws of occuna- tion applicable to, 142, Solfliers and camp- foil OTvers, subject to laws of war, 143, Soldiers, amenable to' laws of war, 147, Soldiers jrnd civilians, martial law ap- plies to both. 366. Spain, oustine: severelgnty, capture of Manila, 48. 670 MILITARY GOVERNMENT AND MARTIAI< I,AW. Spain, military government in, 72. Spanish Peninsula, sacking cities, 215. Special, responsibility rule of subordi- nate, 669, 670, 671. Speculations, carried too far, 586. State, limits danger from within or witliout, int., 19. Policies and martial law, int., 16. Policies, character of military. 111. State, deposed, efficacy judgments, 168. State, vanquislied, property rights, 175. State, when property belongs to and how taken, 197, 198. State, property, seized without tender- ness, 246. State, riglits, revert when, 253, 254, 255. 256, 257. State, policy, determined by whom, 278. Law-making power of, may pro- _ scribe laws, 70. May rely on levies alone, 110. Responsible for acts of subordinates when, 309. Policy of, to sustain military officers, 315. Calls assistance. President exercises discretion, 561. President determines under whom militarv sent into, shall act, 562, 563, 564. Limit in, of Federal jurisdiction, 565. Demands protection of Federal Gov- ernment, President, 566. Subordinate to military, when, 569. Rights of people after Civil "War, 352. Judge of necessity for martial law, when, 429. Has right of self-defence, 480. Authority may invoke martial law 497. State subjects, responsibilit" to, 317. State, authorities, subordinate in Fed- eral matters, 501. State, martial lavr, distinct from Fed- eral, 554. State, In-raded, Federal Government as- sists, 557. State, legislature, when call on Federal Government, 558. State, authorities, President decides what, to recognize, 559. State executive, invokes martial law, occasion necessity, 567, 568. Statutes, in the absence of, customs of war control invoking of war courts, 336. And customs of war give authority to military commission. 339. War courts cognizant all cases ex- cept in provision of, 343. 344. Features of martial law, 389, 390. Authorizing the military to pay re- gard to civil jurisdiction, 560. Protection of officers 650. Of repose, bill of indemnity a, when, 680, 681. Statutes, bills of indemnity after Civil War, 683, 684, 685, 686, 687. Statutory law, those subject to, 159. Basis of military commission, 609. Stephen, Justice, on subordinates' rule, 670. Strasburg, Germans at, 301. Subjugated people, responsibility of commanders to, 313. Submission, tacit, to military occupa- tion, 43. Subordinates, State responsible for, when, 309. Rule for responsibility of, 325. May enforce authority of President, 502. Responsibility of, 657 to 676. If prosecuted, cannot set up unlaw- ful orders of superior, 658. Subordinates' rule, 659, 660, 661, 662. Salutary character of, 667, Left in some doubt, 668. Special, 669, 670, 671. Not absolute, 672. Subordinates and superiors, responsibil- ity of, 666. Summary, military tribunals, authority of, 608. Supplies, right of army to take, 194. Support, of officers within proper jur- isdiction, 647. Suppression of disorder, what rights and obligations of military, 656. Superiors, to have obedience, 656. Subordinates cannot set up unlawful orders of, 658. Responsible for subordinate, when, 662. Acting in good faith, no exemplary damages, 663. Superiors and subordinates, dilference in responsibility rule, 666. Supreme Court, on war powers, int., 10. On confiscation, 186. Action of, in evasion of trade laws, 284. On martial law, 427, 428. On State exercising martial law, 504, 505. Holding martial law a state of war, 507. Of State, when military above State, 569. Sustaining officers in line of duty. 634, 635. In re Neagle, 651. Surrender, of territory, when, 345. T Taney, Chief-Justice, Merryman case, 490. Tennessee, Coleman vs., 152. Territory, occupied, regarded as for- eign, 57. 58. Trade. 272 to 295. Territory, military, regulations in re merchandise, 291. INDEX. 671 Territory of rebels, treated as bellig- erents in local Justiciary, 123, 124. Territory, reclaimed from rebels, pol- icy of government local, 307. Held by conqueror, when, 345. Territory, held permanently, change of government, when, 34t), 347, 3iS, 349. Territories, martial law of, distinct from Federal, bo4. Martial law In, 571, 572, 573, 574. Territorial limits, martial law courts'. Jurisdiction, B14. Terror, may Justify martial law, 472. Theatre of operations, Articles of War apply, I45. Theatre of war, only place military in- stitute martial law, 623. Theory, of martial law in U. S. 20 to 440; see Martial Law. Of martial law courts, teruorial limits, 614. Thoringtou vs. Smith, 243. Title, post limlnium, to movable prop- erty, 228. Only on possession of conqueror, 23S. By seizure of conqueror of state property, 247. In removable and Immovable prop- erty, 248. Of conqueror acquired how, 249. Records of, to be -reserved, 261. Trade, with occupied territory, 272 to 295. President authority to license, 281. Policy of. Treasury Bepartment, 282. Trade, laws of, attempts to evade, 283. Attempts to evade, action of Su- preme Court, 284. Trade, stopped by war, 285. Trade intercourse, when and where il- legal, 289, 290. Exception to rule in re enemy, 292. Trade, case in Sulu Archipelago, 294. Restrictions of, in war, founded on public policy, 295. TBeaty, necessary to permanent mili- tary government, 39. Territory surrendered by, when, 345. Treasury Department, policy of trade, 282. Trial crimes, under common law, 161, 162. Trial, of neutrals, criminal offences, 166. Right of, martial law, 528. Trials, under 63rd Article of War, 158. Of civilians under 63rd Article of War, 160. Tribunals of invaded country, no Jur- isdiction over whom, 149, 150, 151, 152, 153, 154. Tribunals, military government, 333 to 343. British martial law, character of, 395. Tribunals, martial law, 605 to 629. Correspond to offences of the times. Legality questioned, 606. Tribunals, martial law, authority, 607. When invoked, 620. Tribunals, if had Jurisdiction, not re- sponsible for failure of facts, 675. Members of, acting maliciously, 676. Turbulence, Judgments in times of. 649. TJ Union, division of friends of, in Mis- souri, 620. United States, armies, instructions in the field, int., 7. United States Army system, deference civil authority, 555. United States, and the Confederacy, martial law, 439, 440. Early services in, invoking court- martial, 334. Great Britain, treaty in re confisca- tion, 224. Martial law in times of peace, 384; see Martial Law. Martial law, cases to be tried in, and in British, 393, 394. Martial law, theory, 420 to 440. Supreme Court on martial law, 427, Martial law in, offspring of neces- sity, 437 to 440. Supreme Court, on State exeroisina martial law, 504, 505. Increased demand for martial law, 576. Martial law, cases to be tried In, and in British, 393, 394. Martial law, tribunals invoked when, 620. Military officers, respect civil author- ity, 433. When military called in, 498. Moves to protect State from inva- sion, 557. Supreme Court, on sustaining offi- cials, 634, 635. Officials, triable in U. S. courts, 652. United States policy, in establishing, military government, 40. In Philippines in re insurrections, 304. After military government, 351, 352. Unlawful, orders of superior cannot be set up by subordinates, 658. Orders of superior executed by sub- ordinate, 660, 661, 662. Vanauished states, property rights in, 175. Vigilance, military government to ex- ercise, 324. Violence, domestic, in State, Federal Government called in, 558. W War, amelioration of hardships, int., 6. Tendency to make more humane, int., 11. Right to declare, 2. 672 MILITARY GOVERNMENT AND MARTIAL LAW. War, origin of, 3. Existence without declaration by Congress, 6. Complete powers, 8. Irregular warfare cannot be legal- ized, 104. Laws of, in occupied territory, 113 to 168. Laws of, those subject to, 143-159. At once suspends intercourse, 28B. How brought home to people, 286. Warning of, to dealers, 287, 288. Exceptions to rule of no trade with enemy, 292. Precipitated, not to avoid existing contracts, 293, 294. Rule of, non-intercourse founded on public policy, 295. Laws of, limit commander in mili- tary government, 305. Hardships of war ameliorated by legislation, 319, 320. Actual, may not exist, then mar- tial law, England, 402, 403. In time of, commander may extend authority, 503. State of, U. S. Supreme Court holds martial law a. 507. During, martial law, 519. During, bill of rights not effective, nor cloak for license. 591. War powers, decisions of Supreme OoUft, int., 10. Limited by laws of war, 10. Of Presidfent, 138. W^ar, custoius of, control invoking war court, 336. And istatutes give authority to mili- tary commission, 339. War, exists till when, 354. 'War power, an extension of the police power, 359. War, active, not necessarily theatre of martial law, 372. W^ar, laws of, basis of martial law, bel- ligerents, 380. W^ar condltrons, British Government, martial law, 387. W^ar judiciary, Memphis, Tenn., 126. War courts, with civil jurisdiction, 131. At New Orleans, 132. Jurisdiction extended. 139. Appointment, how, 141. Distinguished from courts-martial, 333. Early instances of invoking, 334. Conduct of Gen. Scott Invoking, 335. How invoked, o36. Responsibilities of members of, 338. Rule for responsibilities of members of, 340. Jurisdiction as to persons, 341. Of what cases cognizant, 342, 343. War Department, defining course of affairs, 531, 532. War einer-ency, President's duty. 5. War measures, martial law, int., 25. Martial law in U. S., 436. Martial law in colonies, 456. War tariffs, 58. War of 1812, Articles of War, 639. Weakness, civil authorities and posse comitatus. 578. Webster's view authority martial law, 592. Wellington, occupation south France, 17. In Prance, 300. Wilkes, case of, U. S. Navy. 633. Wllles, Justice, on subordinates' rule, 672. W^rit of habeas corpus, suspension of, in New Mexico, 512. Privilege in Colorado, 513. Power to suspend, and martial law. 526. KF 5063 B61 19li<- ia: Birkhimer, William Edward TMl Cm Military government and martial JLQ. W m