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Military  Government 


AND 


Martial   Law. 


BY 


William  E.  Birkhimer,  LL.B. 

Major,  General  Staff,  U.  S.  Army. 


THIRD  EDITION, 

REVISED. 


KANSAS  CITY,  MISSOURI,  U.  S.  A.: 
FliANKLIN  HUDSON  PUBLISHING  COMPANY. 

LONDON: 
KEGAN  PAUL,  TRENCH,  TRUBNER  &  CO.,  Ltd. 
1914. 


Entered  according  to  Act  of  Congress,  in  the  year  1892,  by 

William  E.  Birkhimer, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1904,  by 

HoDSON-KiMBEELT  Publishing  Company, 
Injtheloffice  of  the  Librarian  of  Congress,  at  Washington 


All  rights  reserved. 


0  wi 


35^ 


TO 

THE   MEMORY    OF   MY    FRIEND, 
LIEUTENANT-COLONEL 

ROBERT  NICHOLSON  SCOTT, 

THIRD   UNITED   STATES  ARTILLERY, 
>- 

^        WHOSE  GENIAL  NATURE  CAUSED  HIM  EVERYWHERE  TO  BE  BELOVED;  WHOSE 

— 

"*  PROFESSIONAL  LITERARY  LABORS,  IN  WHICH  HE  SACRIFICED 

Zj 

3=  HIS  LIFE,    FORM   AN   ENDURING    MONUMENT   TO   HIS   INDUSTRY, 

^  ABILITY,    AND   DEVOTION   TO   DUTY;   AND 

WHOSE   CONFIDENCE   IT   WAS  MY   PRIVILEGE  TO   ENJOY, 
THIS   WORK   IS 

AFFECTlONATElyY    INSCRIBED . 


a4G624 


PREFACE  TO  FIRST  EDITION. 


When,  in  1886,  the  writer  was  detailed  by  the  War  Department  as 
Acting  Judge-Advocate,  Department  of  the  Columbia,  he  found,  upon 
reporting  for  duty,  that  the  commanding  General  had  but  recently,  un- 
der the  President's  orders,  been  assisting  the  Governor  of  Washington 
Territory  to  put  down  an  uprising  against  the  Chinese.  The  more  ef- 
fectually to  do  this,  the  civil  authorities  being  powerless,  the  Governor 
had  deemed  it  necessary  to  proclaim  martial  law  in  the  most  populous 
city  of  the  Territory.  The  writer  found  also  that  both  these  officials  were 
being  proceeded  against  in  the  courts  for  illegal  violations  of  the  rights 
of  certain  citizens  on  this  occasion.  He  began  to  prepare  himself  as 
best  he  could  to  defend  his  chief,  the  commanding  General,  from  civil 
liability.  The  suits  were  soon  dropped,  it  being  evident  to  even  the 
plaintiffs  that  they  would  prove  futile.  Meanwhile,  however,  the  inter- 
est of  the  writer  having  been  attracted,  he  continued  to  pursue  his  re- 
searches after  the  cause  which  originally  inspired  them  had  ceased  to 
be  of  practical  importance- 
It  was  soon  seen  that,  under  the  term  "martial  law,"  two  distinct 
branches  of  military  jurisdiction — the  foreign  and  the  domestic — were, 
by  most  authorities,  hopelessly  confounded.  This,  perhaps,  was  not 
unnatural,  for  "martial  law"  may  with  no  great  impropriety  be  used  to 
signify  the  sway  of  arms  under  all  circumstances.  Yet,  because  of  the 
diverse  rules  of  responsibility  attaching  to  those  who  enforce  military 
jurisdiction  under  varying  conditions,  it  is  necessary,  not  only  to  avoid 
confusion  of  thought,  but  to  protect  officers  in  their  just  rights,  to  at- 
tach to  the  term  a  more  technical  meaning. 

When  operating  on  foreign  soil,  the  legal  obligations  of  the  domi- 
nant military  are  tested  by  one  rule ;  when  within  their  own  territory,  by 
a  wholly  different  rule,  having  regard  to  the  civil  and  property  rights  of 
the  inhabitants.  What  may  be  permissible  to  the  commander  in  the  ex- 
ercise of  his  authority  in  the  former,  with  no  responsibility  other  than 
his  military  superiors,  might,  in  the  latter,  subject  him  to  grave  civil 
responsibilities.  If  it  be  attempted  to  throw  around  the  officer  in  the 
latter  case  that  immunity  from  civil  liability  which  attaches  to  his  con- 
duct in  the  former,  the  people — his  fellow-citizens — might  with  well- 
founded  apprehensions  view  the  temporary  establishment  over  them,  for 
even  the  most  laudable  purpose,  of  the  rule  of  military  force.     If,  how- 


vi  pneFACE. 

ever,  it  be  understood  that  this  cannot  be  done ;  if  the  principle  be  estab- 
lished that  the  commander  who,  under  any  circumstances  whatsoever, 
assumes  to  enforce  superior  military  power  over  the  people  and  terri- 
tory of  his  own  country  does  so  under  ultimate  legal  responsibility  for 
his  acts,  military  rule  is  deprived  of  its  terrors,  and  the  law-abiding 
citizen  sees  in  it  nothing  except  the  firm  application  for  his  benefit  of 
the  powerful  military  hand  when  civil  institutions  have  ceased  either 
wholly  or  at  least  effectively  to  perform  their  appropriate  functions. 
Nor  as  to  this  does  it  signify  whether  temporary  military  supremacy 
results  from  efforts  ta  repel  jnvasion  or  to  suppress  insuirection-  The 
rule  of  liability  is  the  same  in  both  cases. 

It  is  evident,  therefore,  that  there  must  be  one  term  to  express  the 
fact  of  supreme  military  domination  over  the  community  abroad,  and 
another  for  the  same  thing  at  home, 

This  was  clearly  pointed  out  by  Attorney-General  Gushing,  in  1857, 
in  an  opinion  conspicuous  for  the  legal  acumen  which  characterizes  the 
professional  writings  of  that  distinguished  jurist.  But  at  that  time  the 
true  nature  and  limits  of  military  jurisdiction  had  not  in  this  country 
received  sufficiently  close  judicial  examination  to  admit  of  demonstration 
upon  recognized  principles  of  municipal  and  international  law.  This  it 
remained  for  the  Ghief -Justice  of  the  United  States  to  do  in  the  dissent- 
ing views  of  the  minority  of  the  justices  in  Ex  parte  Milligan,  after  the 
experiences  of  the  Givil  War  had  directed  attention  to,  and  thrown  a 
flood  of  light  upon,  the  subject.  The  truth  of  this  observation  is  wholly 
independent  of  the  conflicting  opinions,  regarding  the  correct  territorial 
limits  of  martial  law,  expressed  by  the  justices  in  that  celebrated  case. 
The  analysis  of  the  Ghief-Justice  is  masterly,  and  leaves  nothing  to 
those  who  follow  him  except  to  fill  in  the  details  of  the  plan,  the 
ground-work  of  which  he  so  ably  laid.  This  has  been  attempted  in  the 
following  pages.  How  imperfect  soever  the  execution,  it  may  result  in 
fuller  investigation  into,  and  exposition  of,  the  principles  involved,  and 
thus  prove  of  benefit  to  the  military  professon — to  serve  which  is  the 
writer's  only  ambition.  i 

Washington  Barracks,  D.  C, 
November  i,  1892. 


PREFACE  TO  SECOND  (REVISED)  EDITION. 


Since  this  work  was  published  (1892)  the  military  authorities  of  the 
United  States,  and  those  of  Great  Britain,  have  had  occasion  to  inaugu- 
rate and  enforce  military  governnient__on  ^n  extensive  scale  and  under 
varied  circumstances.  The  first  mentioned  did  this  in  Cuba,  Porto  Rico, 
and  the  Philippine  Islands;  the  last  mentioned  in  the  South  African  re-- 
publics.  While  it  is  not  practicable  to  meet  and  specifically  to  provide 
for  every  case  that  may  arise,  still  the  scope  of  the  work  has  proved  suf- 
ficiently comprehensive,  it  is  believed,  to  indicate  the  direction  in  which 
commanders  or  others  upon  whom  responsibility  rests  may  find  the  true, 
the  patriotic,  the  military  course. 

These  experiences  simply  confirm  previous  ones  in  this, — that  the 
true  rule  for  him  who  has  to  enforce  military  government  is  to  place  his 
■justification  upon  the  law  of  belligerent  rights  alone  without  compli- 
cating the  situation  by  appeal  to  civil  law.  By  so  doing  he  will  stand 
on  safe  ground.  If  he  depart  from  this  rule,  a  law  bureau  will  be 
needed  to  save  him  from  the  quagmires  of  litigation  or  legal  contention, 
and  such  bureaus  commanders  rarely  have  at  hand,  nor  are  they 
desirable. 

During  the  twelve  years  last  past  there  have  been  several  conspicu- 
ous instances  of  enforcing  martial  law  within  the  United  States.  In 
Idaho,  in  1899,  the  Governor  declared  Shoshone  County  to  be  in  a  state 
of  insurrection  and  jebellion,  and  instituted  martial  law  therein.  It  was 
officially  declared  that  this  state  of  insurrection  had  existed  in  that  com- 
munity for  several  years.  The  Governor  called  upon  the  President  to 
assist  with  the  national  military.  This  request  was  compiled  with,  and 
these  troops,  acting  in  cooperation  with  the  local  civil  authorities,  sup- 
pressed the  insurrection.  The  organized  militia  of  the  State  had  vol- 
unteered for  the  United  States  service  and  were  in  the  Philippines. 

In  1902  the  condition  of  affairs  was  such  in  Schuylkill  County, 
Pennsylvania,  that  the  Governor  called  out  the  organized  militiajo  put 
an  end  to  alleged_tiolence.  No  interference  whatever  with  the  militia 
in  the  performance  of  this  duty  was  permitted.  The  Supreme  Court  of 
the  State  upheld  the  Governor  in  this  course,  the  resulting  state  of 
affairs  being  what  it  styled  qualified  martial  law,  which,  it  remarked, 
government  must  have  a  right  to  establish  on  proper  occasion  or  perish. 
A  private  soldier,  posted  as  a^sentinel,  who  under  these  conditions  shot 
and  killed  one  who  was  wrongfully  coming  upon  his  beat,  was  held 
blameless  by  the  court.' 


viii  pre^Face;. 

In  Colorado,  by  proclamations  in  1903-04,  the  Governor  declared 
that  a  state  of  affairs  bordering  on  insurrection  and  rebellion  existed  in 
one  county;  in  another,  that  practically  the  same  condition  prevailed; 
while  in  a  third  they  had  risen  to  a  state  of  real  insurrection  and  rebel- 
lion. The  organized  militia  was  put  in  the  field,  in  some  cases  to  assist, 
in  others  to  act  independently,  if  need  be,  of  the  civil  authorities — at 
discretion  of  the  military  commanders. 

In  each  of  the  cases  just  mentioned,  wherein  State  authorities  en- 
forced martial  law,  appeal  was  made  by  the  opposition  to  the  judiciary, 
but  unavailingly.  The  fact  is  that  the  judiciary,  as  so  clearly  shown  by 
the  Supreme  Court  of  Pennsylvania,  in  the  decision  above  referred  to, 
understands  that  it  does  not  suffice  alone  that  courts  be  open  and  civil 
officers  pursuing  their  functions,  if  in  spite  of  this  a  condition  of  law- 
lessness prevails  that  renders  such  ordinary  agencies  powerless  in  fact 
properly  to  perform  their  functions  and  give  society  that  security  to  life 
and  property  that  government  was  intended  to  secure.  This  being  so, 
tiie  next  step  is  inevitable — when  ordinary  instrumentalities  do  not  suf- 
fice, the  extraordinary,  the  military,  must  be  called  in,  because  the  com- 
munity will  not  long  surrender  to  its  lawless  element. 

Nor  did  the  condition  of  affairs  at  Chicago  in  1894  vary  in  principle 
from  those  just  mentioned.  The  Governor  of  Illinois  at  the  time  would 
not  call  for  the  national  troops,  although  inter-state  commerce  and  the 
carrying  of  United  States  mails  through  that  city  were  effectually 
blocked  by  lawless  violence,  leading  to  loss  of  life  and  destruction  of 
property.  The  President  ordered  United  States  troops  to  the  scene. 
The  special  United  States  attorney  urged  that  martial  law  formally  be 
declared ;  and  although  this  was  not  done,  the  omission  to  do  so  was 
not  because  apparently  of  a  belief  that  this  would  be  illegal,  nor  did  it 
change  the  state  of  facts,  which  was  one  of  the  m.ilitary  dominating  all 
other  authorities.  The  Supreme  Court  of  the  United  States  sustained 
these  energetic  measures  in  the  amplest  manner. 

It  is  not  an  agreeable  fact  to  reflect  upon,  yet  it  is  true  that  the  in- 
stances are  not  diminishing  in  frequency  wherein  the  military,  either 
national  or  State,  are  being  put  in  requisition  to  preserve  order  when  the 
civil  authorities  fail  in  this  their  first  duty.  The  people  of  the  United 
States  rightly  pride  themselves  on  being  law-abiding,  yet  official  records 
show  that  more  than  half  the  Presidents  have  issued  proclamations 
warningjhe  people  against  the  commission  of  illegal  acts,  and  the  num- 
ber of  distinct  proclamations  has  exceeded  the  number  of  Presidents. 
This  does  not  complete  the  view.  In  this  there  must  be  comprehended 
numerous  instances  of  State  authorities,  legislative  or  executive,  treading 
the  same  path.     In  some  cases  here  referred  to,  martial  law  has  been 


PREFACE.  ix 

inaugurated  in  distinct  terms,  while  in  all  cases  this  has  been  the  partial 
effect,  more  or  less  complete,  depending  upon  the  heed  given  by  the 
lawless  element  to  official  warnings  and  thus  modifying  the  necessity 
for  the  establishment  of  martial  law  in  distinct  terms. 

Martial  law  was  established  in  the  rebellious  or  disaffected  districts 
of  Cape  Colony,  South  Africa,  in  1899,  and  at  vaiTous  times  was  modi- 
fied as  to  territorial  extent  down  to  the  final  triumph  of  British  arms  in 
the  Boer_VV^ar.     As  it  was  instituted  over  districts  in  reBellioinror  con- 

,  tiguous  to  territory  of  an  enemy  with  which  Great  Britain  was  conduct- 
ing war,  there  was  reason  in  adopting,  as  was  done,  ^he  laws  of  jwar  as 
the  basis  for  enforcing  martial  law  in  this  instance.  It  was  simply 
placing  all  those  who  had  to  be  fought,  whether  they  were  the  enemy  in 
line  of  battle,  or  the  less  easily  distinguishable  enemy — subjects  in  re- 
bellion— as  nearly  as  possible  on  the  same  footing.  Yet  they  were  not, 
in  the  theory  of  British  law,  placed  precisely  in  the  same  category  in 
two  important  respects.  First,  it  was  recognized  that  while  certain  acts 
of 'burghers-pthe  open  enemy — might  be  breaches  of  the  laws  of  war, 
yet  iF  rebel  subjects  did  the  same,  they  would  be  offenses  against  ordi- 
nary law,  such  as  treason,^  or  murder ;  second,  that  those  who  enforced 
martial  law  could  be  held  civilly  accountable  subsequently  by  alleged 
■  rebel  or  other  subjects  of  martial-law  districts,  hence  it  was  necessary 

/[to  secure  an  indemnity  act  to  shield  them;  whereas  such  agents  were 
answerable  for  this  conduct  to  the  open  enemy  only  according  to  the 
laws  of  war.)  From  this  it  v/ill  be  observed  that  there  was  nothing  in 
the  circumstances  of  inaugurating  martial  law  in  South  Africa  and 
scarcely  anything  in  the  incidents  attending  its  enforcement  there  that 
was  at  all  similar  to  martial  law  viewed  as  a  domestic  fact,  and  as  just 
illustrated  in  the  case  of  Idaho,  Pennsylvania,  and  Colorado.  In  truth 
the  rule  styled  martial  law  in  South  Africa  was  like  that  denominated 
military  government  in  this  work,  with  the  single  exceptiori  that  an  act 

■  o^indemnitv  was  necessary  in  certain  situations.  The  case  did  not 
arise  of  a  community  being  paralyzed  in  its  administrative  parts  by  the 
lawless  acts  of  vicious  elements  of  society,  so  that  the  military  is  called 
in  to  save  the  State  from  destruction  internally.  When  this  condition 
of  affairs  occurs  under  the  British  flag,  it  is  likely  that  the  martial  Jaw 
invoked  will  be  less  signalized  in  execution  by  appealing  to'  the  laws  of 
waEJthan  to  those  repressive^nieasures  thatjire  an  ejctension  of  the  po- 
lice powers  of  ^qyernrnent,  the  agent  for  giving  effect  to  which  has  be- 
come the  military. 

This  prefatory  note  cannot  better  be  concluded  than  by  the  follow- 
ing letter : 


X  PREFACE. 

"WAR  DEPARTMENT. 
"Office  of  the  Judge- Advocate  General, 

"Washington,  February  24,  1904. 
"My  dear  Major  Birkhimer, — I  am  very  glad  to  learn  that  you  have 
it  in  mind  to  bring  out  a  new  edition  of  your  'Military  Government  and 
Martial  Law,'  in  which  the  results  of  the  very  considerable  experience 
which  we  have  had  since  1898  in  the  field  of  military  occupation  will  be 
allowed  due  representation. 

"The  original  work  is  the  most  complete  treatise  on  the  subject  in 
the  English  language,  and  embodies  the  views  which  prevail  in  Anglo- 
Saxon  countries  on  the  subject  of  martial  law  and  military  occupation. 
I  have  had  constant  occasion  to  refer  to  it  in  connection  with  matters 
which  have  been  referred  to  this  office  for  opinion,  and  found  it  especially 
useful  when  the  character  of  the  operations  underta'cen  in  the  Philippine 
Islands,  with  a  view  to  suppress  the^nsurrection  against  the  authority 
of  the  United  States,  were  undergoing  investigation.  ' 

"I  hope  the  revision  will  appear  in  the  near  future,  so  that  the  work 
can  be  used  in  the  instruction  of  officers  of  the  Army  in  connection  with 
the  government  of  occupied  territory  and  the  restoration  of  order  in  com- 
munities in  which  militar)'^  force  has  been  employed  with  a  -xiew  to  secure 
the  execution  of  the  laws;  and,  I  remain, 

"  Faithfully  yours,  GEO.  B.   DAMS. 

'' Judge- Advocate  General^ 

This,  the  first  revision  of  the  work,  now  i?  given  to  the  profession  and 
the  world  in  the  hope  that  it  may  be  deemed  to  deserve  and  may  continue 
to  receive  the  favor  heretofore  accorded  it,  not  only  in  our  own,  but  in 
foreign  services  and  in  the  le^al  profession. 

San  Francisco,  Californi.\, 
July  I,  1904. 


When  the  manuscript  for  this  revised  edition  had  been  placed  in  the 
hands  of  the  publisher,  the  author  was  taken  suddenly  and  violently  ill 
and  was  confined  for  several  months  to  the  hospital.  In  this  dilemma. 
Major  Daniel  H.  Boughton,  U.  S.  Army,  LL.B.,  head  of  the  Law  Depart- 
ment of  the  Infantry  and  Cavalry  School  and  Staff  College,  obligingly  un- 
dertook the  onerous  task  of  revising  and  correcting  the  proof-sheets  and 
preparing  the  index.  The  great  merit  of  this  labor,  as  executed,  belongs 
exclusively  to  that  painstaking  and  capable  ofticer,  to  whom  the  author 
hereby  testifies  his  appreciation  and  returns  thanks  for  the  invaluable 
services  thus  rendered. 


CONTENTS. 


INTRODUCTION. 

Military  Government. 

I.  Military  jurisdiction  divided  into  two  branches.— 2.  Sphere  of 
miUtary  government. — 3.  Limit  of  martial  law. — 4.  Importance  of  the 
distinction. — 5.  Temporary  allegiance. — 6.  Efforts  to  ameliorate  hard- 
ships of  war. — -7.  Instructions  for  United  States  Armies  in  the  Field. — 8. 
Comparison  of  international  codes  with  the  Instructions. — 9.  Continuance 
same  subject. — 10.  Decisions  Supreme  Court  of  United  States  on  war 
powers. — II.  Practical  tendency  to  make  war  more  humane. — 12.  Duty 
of  the  militarily  governed  to  respond  favorably  to  this  sentiment. 

Martial  Law. 

13.  Instituted  in  friendly  territory  only  when  military  supersedes 
the  civil  power. — 14.  Military  and  civil  authority  may  assist  each  other. — 
15.  Foundation  for  distinct  martial-law  measures. — -16.  A  necessity,  met 
by  State  policies  in  different  ways. — 17.  Anglo-Saxon  and  Continental 
policies. — 18.  When  martial  law  invoked. — 19.  Danger  from  either  within 
or  without  the  State  limits. — 20.  Experience  shows  cannot  be  dispensed 
with. — 21.  Questions  preliminary  to  inaugurating. — 22.  First  one  consid- 
ered.— -2^.  Division  of  authorities  on  second  (luestion;  discussion;  right  of 
Congress  to  institute.^24.  Implied  powers  of  Congress. — 25.  Martial  law 
invoked  as  war  measure. 

PART  I.— MILITARY  GOVERNMENT. 

CHAPTER  L 

Power  to  Declare  War. 

I.  Scope  and  object  military  government. — 2.  Right  to  declare  war. — 
3.  Ways  in  which  war  originates. — -4.  Parties  in  public  war. — 5.  Necessity 
President  meeting  war  emergency. — 6.  War  may  exist  without  declaration 
by  Congress. — 7.  Powers  expressed  carry  others  necessarily  implied. — 
8.  Complete  war  powers. — 9.  Law  of  nations  recognized  by  Constitution 
— B  xi 


XU  CONTEXTS. 

CHAPTER  II. 
Right  to  Establish  Military  Government. 
lo.  Government  war  powers  limited  by  laws  of  war. — ii.  Military 
government  foreign  territory. — 12.  Necessity  placing  military  gov- 
ernment on  certain  foundation  of  belligerent  rights. — 13.  Not  only 
a  right,  but  a  duty. — 14.  Power  of  President  as  Commander-in-Chief. 
— 15.  Illustrated  in  New  Mexico,  1846. — 16.  Civil  governments  there  legal. 
— 17.  AVellington's  occupation  south  of  France. — 18.  Characteristics  mili- 
tary government. — 19.  Right  to  establish  military  government  in  dis- 
tricts dominated  by  rebels  treated  as  belligerents. — 20.  Character  govern- 
ment decided  by  dominant  power. — 21.  Illustrated  in  Philippine  archi- 
pelago.— 22.  Military  occujmtion  of  districts  occupied  by  rebels  treated 
as  belligerents. — 23.  Insurrection  does  not  necessarily  loosen  bonds 
societv. — 24.  Proclamation  military  government  not  necessary,  but,  if 
issued,  the  effect  of. — 25.  Military  government  continues  till  legally 
supplanted. 

CHAPTER  III. 
Temporary  Allegiance  of  Inhabitants. 
26.  Allegiance  and  protection  reciprocal. — 2-.  Same  subject. — 28. 
Same  subject. — -29.  This  consideration  basis  of  society. — 30.  Principle 
applicable,  military  government. — 31.  Dc  facio  government  sufficient. — 
32.  Military  government  extends  no  furllier  than  can  defend  itself  and 
enforce  mandates. 

CHAPTER  IV. 
Territorial  Extent. 
33.  Extent  military  occupation. — 34.  What  legally  constitutes. — 35. 
Time  when  it  becomes  operative. — 36.  Same  subject. — 37.  Criterion  of 
conquest. — 38.  Conquest  limits  military  government. — 39.  Not  permanent 
until  confirmed  by  treaty. — 40.  Policy  United  States  establishing  military 
government  during  Civil  War. — 41.  Duty  inhabitants  under  these  con- 
ditions.— 42.  Similarity,  blockade  and  military  occupation. — 43.  Tacit 
submission. — 44.  Fundamental  principle,  military  occupation,  overpower- 
ing force. — 45.  Napoleon  in  Spain — guerillas. — 46.  Eft'ect  abandonment 
of  jurisdiction  by  expelled  State. — 47.  Seizure  rents,  Memphis,  Tenn. — 
48.  Effect  capture  Manila  as  to  ousting  Spanish  sovereignty. 

CHAPTER  V. 
Territory  Militarily  Occi;pieo — Enemy  Territory. 
49.  Military  occupation  renders,   for  time  being,   districts  occupied 
enemy  territory. — 50.   Authority  permanently  to  ac(|uire. — 51.   British  oc- 


CONTENTS.  Xlll 

cupation  Castine,  Maine. — 52.  Same  subject. — 53.  Case  of  rebels  treated 
as  belligerents. — 54.  Same  subject. — 55.  Attempts  to  avoid  reprisal  and 
retaliations,  civil  w^ars. — 56.  Principle  of  conquest,  British  government. 

CHAPTER  VI. 

Effect  of  Occupation  on  Local  Administration. 

57.  Important  consequences,  occupied  territory  regarded  as  foreign. 
— 58.  Case  Upper  California,  war  tariffs. — 59.  When  war  tariffs  end. — 60. 
Effect  rule  of  war  making  belligerents  enemies. — 61.  Only  laws  re- 
tained, will  of  conqueror. — 62.  Effect  municipal  laws. — 63.  Instance,  oc- 
cupation of  Cuba. — 64.  Same  subject. — 65  Positive  act  conqueror  nec- 
essary to  suspend  municipal  laws. — 66.  Same  subject. — 67.  Political  laws 
cease  on  occupation. — 68.  Conqueror  prescribes  the  laws. — 69.  Agent 
does  this,  usually  military  governor. — 70.  Law-making  power  of  State 
may  prescribe  laws. — 71.  Political  views  modify  powers  of  commander. 
— '/2.  Military  government  in  Spain. — 73.  Rule  of  military  occupation  in 
Cuba. — 74.  Same  subject.  | 

CHAPTER  VII. 

Agents  for  Carrying  Military  Government  into  Execution. 

75.  First  instance,  military  officers  enforce  the  occupation. — 76. 
Policy  establishing  civil  governments- — "/-/.  Same  subject. — 78.  Case  per- 
manent conquest  not  contemplated. — 79.  Instructions  for  supply,  Mexi- 
can war. — 80.  Foundation  of  policy. — 81.  Rule  occupation,  territory  of 
rebels  treated  as  belligerents. — 82.  Illustrated  at  New  Orleans. — 83. 
Same  subject- — 84.  Appointment  political,  so-called  military,  governors. 
— 85.  Disadvantage  two  sets  officials. — 86.  Same  subject. — 87.  Experi- 
mental political  governments. — 88.  Same  cause  friction,  President  and 
Congress. — 89.  Character  military  governrnent  in  Cuba. — 90-  Same  in 
Philippines. — 91.  Same  in  South  Africa. 

CHAPTER  VIIL 

All  Inhabitants  Enemies  ;  Levies  en  Masse. 

92.  Universal  theory,  all  subjects  are  belligerent  enemies  of  subjects 
of  the  other. — 93-  Not  all  necessarily  treated  alike. — 94.  Proclamation 
King  William,  entering  France. — 95.  Moderation  toward  conquered  not 
obligatory. — 96.  Rule  regarding  gentler  sex. — 97.  Responsibility  rests  on 
commander  of  occupation,  extreme  measures. — 98.  Rule  that  subjects  of 
belligerents,  mutually  enemies,  true  if  rebels  are  treated  as  belligerents. 
— 99.  Duty  non-combatants. — 100.  Same  subject,  illustrated  by  German 


Xiv  CONTENTS. 

practices  in  France. — loi.  Characteristics  banditti. — 102.  Guerilla  and 
predatory  bands. — 103.  Guerilla  warfare,  Philippines  and  South  Africa. — 
104.  Irregular  warfare  cannot  be  legalized. — 105.  Authorization  necessary 
for  combatant. — 106.  Distinction,  guerillas  and  levies  en  masse. — 107. 
Part  that  levies  en  masse  act. — 108.  Danger  in  levies  becoming  guerillas. — 
109.  Distinguishing  mark  necessary,  levies  en  tnasse. — 110.  State  may 
rely  on  levies  alone  for  fighting  force. — iii.  Character  of  military,  ques- 
tion State  policy. — 112.  Recent  discussions,  levies  en  masse. 

■       CHAPTER  IX. 
I.AWS  Obugatoky  within  Occupied  Territory. 

113.  The  law  of  war  prevails  in  occupied  territory. — 1 14.  Case  foreign 
army  pennitted  on  friendly  soil. — 1 1 5.  Three  classes  to  be  dealt  with. — 1 16- 
Laws  affecting  persons  and  property  of  conquered. — 117.  As  to  these, 
conqueror  should  lean  towards  mercy. — 118.  Instructions  for  American 
armies  on  this  point. — 119.  Courts,  such  as  conqueror  elects. — 120.  Judi- 
cial system  organized  in  New  Mexico. — 121.  Gen.  vScott's  judicial  system, 
Mexico. — 122.  Same;  its  advantages. — 123.   Local  judiciary,   within   ter- 
ritory of  rebels   treated   as  belligerents,   regulated   by  conqueror. — 124. 
Same. — 125.  Gen.   McClellan's  orders,   Peninsular  Campaign. — 126.  War 
Judiciary,    Memphis,    Tenn. — 127.  Authority    of    military    commanders, 
not  well  understood. — 128.  Same  subject,  as  illustrated  in  Memphis. — 
129.  Criminal  court  established. — 130.  Same  subject. — 131.  War  courts 
with  civil  jurisdiction. — 132.  War  courts  at  New  Orleans. — 133.   Principles 
for  military  government  city. — 134.  Military  commission,  criminal  juris- 
diction.— 135.  Provost  court,  general  jurisdiction. — 136.  Two  important 
points   decided. — 137.  Tlie   provost   court,    a   war   court. — 138.  Further 
vindication  President's  war  power. — 139.  War  courts  further  extended 
in  jurisdiction. — 140.  Provisional  court,  plenary  powers,  court  of  record 
appointed. — 141.  Plenary  power,  appoint  war  courts,  judicially  settled. 
— 142.  I^aws  of  occupation  applicable  to  soldiers  and  citizens  ctmquering 
State. — 143.  ,Soldiers  and  camp-followers  subject  to  laws  of  war. — 144, 
Provisions  Articles  of  War. — 145.   Articles  of  War  applicable  regardless 
theatre    operations.— 146.  Scope    of    this    code. — 147.  Applicable    unless 
under  statutory  restrictions,  to  all  crimes  and  misdeeds  of  military  and 
camp-followers. — 148.  Ex-niembers    army    not    generally    triable    under 
Articles   of   War. — 149.  Tribunals    of    invaded    country    no    jurisdiction 
over    members    invading    army. — 150.  Prolonged    occupation    does    not 
affect    rule. — 151.  Case   of   ElphinstOne  v.  Bedreechund. — 152.  Principle 
further  illustrated,   Coleman  v.   Tennessee. — 153.  Comprehensive   effect 
preceding    decisions. — 154.  Case    of  soldier,  alleged  nmrderer,  in  Cuba 
— 155.  Laws   applicable    to   citizens,    civilians,    members    of   conquering 


CONTENTS.  Xy 

State. — 156.  Certain  of  the  i\rticles  of  War  set  oat. — 157.  I  egal  constriic- 
tion  of  these  .\rticles  of  War. — 158.  Trials  under  63d  Article  of  War. — 
159.  Civilians,  citizens  conquering  State  subject  statutory  law  and  laws 
of  war. — 160.  When  civilians  triable  under  63d  Article  of  War. — 161. 
Trial  crimes  under  common  law. — 162.  Same  subject. — 163  Laws  ap- 
plicable to  neutrals  under  militar\  occupation. — 164.  Principles,  illu.s- 
trated. — 165.  Same  subject. — 166.  Trial  neutrals,  criminal  offences. — 167. 
Transitory  actions  accruing  to  neutrals. — 168.  Efficacy  judgments  supreme 
judicial  tribunal  deposed  State,  after  military  occupation  established. 

CHAPTER  X. 

Rights  Recording  Private  Property. 

169.  Amelioration  former  severe  rule  regarding  enemy  property. — 
170.  Right  to  seize  enemy  property  a  perfect  one. — 171.  Question  who  has 
light  to  appropriate  enemy  property  very  important. — 172.  Four  different 
ways  appropriating  private  property. — 173.  Conffscation  a  formal  legal 
process,  as  distinguished  from  summary  appropriation. — 174.  Views,  ele- 
mentary writers,  as  to  right  of  confiscation. — 175.  Property  rights,  in 
vanquished  State. — 176,  Right  to  confiscate  judicially  determined. — -177. 
Right  to  confiscate  not  based  on  crime,  but  on  relation  of  property  to  enemy. 
— 178.  Sam.e  rule  when  rebels  are  treated  as  belligerents. — 1 79.  Source  Con- 
gressional power  on  subject. — 180.  Nu  acts  confiscation  passed  by  Con- 
gi:ess  during  foreign  wars.  — 181.  Those  inaugurated  during  the  Civil  War. 
—182.  This  course  rendered  necessary,  obstinacy  of  war. — 183.  Principle 
further  extended. — 184.  Confiscation  only  upon  judicial  decision. — 185. 
Confiscation  laws  not  interfere  witli  laws  of  war.  but  military  commanders 
may  not  confiscate. — 186.  Illustration  from  decision  Supreme  Court. —  1S7 
Commanders  untrammeled  under  laws  of  war,  except  by  express  legislation. 
— -188.  Mistaken  policy  hampers  commanders  at  a  distance. — 189.  Mili- 
tary government  full  control  lands  and  immovable  private  property  of 
enemy,  even  to  fruits,  rents,  profits,  but  measures  generally  cease  in  legal 
effect  with  occupation. — 190.  Conspicuous  instance  of  contrary  ruling. — 
191.  Import  of  ruling  first  cited'. — 192.  Case  from  Franco-German  War. — 
193.  Case  Dagupan  Railroad,  Luzon,  Philippine  Islands. — 194.  Supplies 
for  subsisting  army  taken  as  of  right. — 195.  Measures  without  political 
significance  survive  the  military  occupation. — -196.  Booty.— 197.  Proper- 
ty taken  becomes  property  of  State.- — 198.  Instructions  for  taking. — 199. 
Arguments  of  Hagtie  Conference,  appropriating  pro])erty. — 200.  Distinc 
tive  rights,  property  captured  on  land  and  on  sea. — 201.  Taking  private 
property  as  coercive  measures.^202.  Instructions  for  Armies  in  the  Field 
regarding  these  principles. — 203.  Exceptions  to  rule  private  property 
may  not  be  taken. — 204.  Punishment  of  community  for  acts  of  one  of  its 


Xvi  CONTENTS. 

members. — 205.  Hague  Conference  on  this  practice. — 206.  Hostages  for 
good  behavior. — 207.  Contributions  support  of  destitute. — 208.  Mo  dis- 
tinction, real  and  personal  property,  but  distinction,  taken  for  use  or  for 
destruction. —  209.  Contributions  as  amelioration  ancient  right  enslave- 
ment.— 210.  Pillage  unlawful. — 211.  Contributions,  an  equitable  means 
to  support  army. — 212.  Effect  levies  en  masse,  exempting  property  from 
seizure. — 213.  German  theory  contributions. — 214.  Private  property  tak- 
en on  field  battle. — 215.  Instances  sacking  cities,  Spanish  Peninsula. — 
216.  Fourth  exception  rule  private  property  may  not  be  seized. — 217. 
Private  property  destroyed  as  well  as  appropriated. — 218.  Instances: 
principles  destruction  of  enemy  property. — 219.  This  under  military  gov- 
ernment, only  to  punish  rebellion. — 220.  Illustrations  of  patriotic  devotion. 
— 221.  Kinds  of  property  that  may  be  seized  or  destroyed. — 222.  No  con- 
fiscation Crimean  War. — 223.  State  never  confiscates  debts  due  to  enemy 
subjects. — 224.  This  rule  extended,  treaty  United  States,  Great  Britain. — 
225.  Rules  seizing  enemy  property  on  our  own  or  on  hostile  territoiy  not 
necessarily  same. — 226.  Same  subject. — 227.  Rights  of  military  occupation , 
enemy  property  found  there. — 228.  What  vests  title  in  movaVjle  private 
propert}^,  post  liminium. — 229.  Rules  of  corporeal,  same  as  of  incorporeal 
rights. — 230.  Effect  compulsory  payment  to  conqueror,  a  private  debt , 
if  debt  due  displaced  State. — 231.  Incorporeal  rights,  purely  personal, 
not  confiscable. — 232.  Parties  compulsory  absent  not  affected  decisions 
war-courts  — 233.  Case  of  Doroteo  Cortes,  Manila. — 234.  Military  occu  - 
pation,  not  if>w  facto,  affect  immovable  property. — 235.  Incorporeal  rights 
attached  to  immovable  property  may  be  seized. — 236.  Doctiments,  evi- 
dence incorporeal  rights,  give  no  right  to  attack  latter,  unless  the  property 
out  of  which  incorporeal  rights  sprung  are  reduced  to  possession. — 
237.  Purchaser  immovable  enemy  property  takes  at  his  own  risk. — 238. 
Conqueror's  title  extends  no  further,  lasts  no  longer,  than  his  possession. 
— 239.  Risks,  purchase  inmiovable  enemy  property. — 240.  Immovable 
property,  private  parties,  not  confiscable. — 241.  Unless  specially  for- 
bidden, private  property,  miltary  occupation,  may  be  alienated. — 242. 
Acts  de  facto  government,  regarding  property,  depend  for  validity  on  result 
contest. — 243.  Illustrated:  case  Thorington -y.  Smith. — 244.  Same  subject, 
purchases  under  Confederate  Confiscation  Acts,  property  in  Confederacy, 
owned  by  loyal  man,  inhabitant  loyal  State. — 245.  Instances  recent  wars, 
United  States,  illustrative.  States  under  military  occupation,  property 
both  corporeal  and  incorporeal. 

CHAPTER  XI. 

Rights  Regarding  Public  Property. 

246.  No    tenderness    shown,    seizure    State    property. — 247.  Seizure 
perfect  title  in  conqueror  to  movable  State  property  and  rights  attached 


CONTENTS.  XVU 

thereto. — 248.  Positive  law  sometimes  discriminates,  movable  and  im- 
movable property. — 249.  Conqueror  acquires  title  movable  property  by 
some  positive  act  alone. — 250.  Rights  conqueror  extend  no  further  than 
he  uses  paramount  force  to  enforce  them. — 251.  Same  subject. — 252.  Effect 
payment  to  new  government  of  debts  due  to  old  on  question  of  extinguish- 
ing the  debts. — -253.  Rights  old  State  revert,  government  military'  occu- 
pation disappears. — 254.  Case  Smith,  Bell  &  Co.,  Manila. — 255.  Effect 
military  occupation,  on  property  enemy  State  of  character  not  affecting 
contest. — 256.  Illustrated  in  Napoleon's  wars. — 257.  Results  at  end  these 
wars. —  258.  Seizure  works  of  art  allowable.  —  259.  Wanton  destruction 
public  property  not  allowable  under  laws  war,  unless  circumstances  pe- 
culiar.— 260.  Such  may  be  justified,  peculiar  cases. — 261.  Military  com- 
mander should  preserve  records  showing  title  to  property,  and  of  historical 
value. — 262.  Right  of  conqueror,  immovable  State  property,  extend  no 
further  than  asserted  by  paramount  force. — 263.  Ousted  government 
cannot  claim  revenues  derivable  from  property  within  military  occupa- 
tion.— 264.  Experiences  during  Philippine  insurrection. — 265.  Right  de- 
stroy property  enemy  vState,  same  as  to  appropriate. — 266.  Destruction 
magazines,  foundries,  war-like  stores. — 267.  Private  property,  such  cases, 
protected  from  unnecessary  destruction. — 268.  Same  subject. — 269.  Im- 
plied obligations,  conqueror,  may  be  difTerent,  private  and  public  prop- 
erty.— 270.  Case  civil  war  Government  determines  own  course. — 271. 
Military  commander  may  not  alienate  property  of  his  government,  except 
on  ground  necessity  sustain  army. 

CHAPTER  XII. 

Tr.\de  with  Occupied  Territory. 

272.  Trade  with  territory  militaril}^  occupied  illegal  except  under 
authority  dominant  power.-^273.  Same  subject. — 274.  Same  rule  applies 
to  allies. — 275.  Temptations  to  such  trade. — 276.  Rule  during  Crimean 
War. — 277.  Conduct  militarj^  governor,  this  respect,  controlled  by  home 
government. — 278.  Power  determine  military  policy  State. — 279.  Ex- 
pediency not  affect  inflexibility  rule  non-intercourse. — 280.  Same  subject; 
review  power  military  commander. — 281.  President  vested  by  law,  au- 
thority license  trade. — 282.  Still  further  change  policy,  conducted  through 
Treasury  Department. — 283.  Results  attempt  to  evade  trading  laws. — 284. 
Action  Supreme  Court  in  premises.— 285.  Existence  of  war  at  once  suspend 
intercourse. — 286.  How  existence  war  brought  home  to  people" — 287. 
Commercial  dealers  nmst  have  fair  warning  war  exists. — 288.  Warning 
must  be  of  unequivocal  nature. — 289.  Time  when  intercourse  becomes  il- 
legal.— 290.  Illegality  intercourse  extends  not  only  to  territory  proper  of 
belligerent,   but   to  all   reduced  into   his  military  possession. — 291.  En- 


Xviii  CONTENTS. 

trance  into  territory  of  military  occupation,  not  only  merchandise,  but  of 
persons  regulated  by  dominant  powers. — 292.  Exceptions  to  rule  war  of 
non-intercourse  with  enemy. — 293.  Precipitation  war,  not  avoid  existing 
contracts. — 294.  Case  trade  with  Sulu  archipelago. — ijgs.  Rule  war  of 
non-intercourse  founded  on  public  policy,  and  is  of  inflexible  nature. 

CH.A.PTER  XIII. 

Insurrection  against  Milit.\ry  Government. 

296.  Abstract  right  to  rebel  conceded;  question  one  of  expediency. 
— 297.  Same  subject. — 298.  Illustra^^ions. — 299.  Inefficacy  guerilla  war- 
fare against  regular  operations. — 300.  Wellington  in  France. — 301.  Ger- 
mans at  Strasburg. — 302.  Same  subject;  Instructions  for  Armies  in  the 
Field. — 303.  The  more  general  the  military  insurrection,  the  severer  re- 
pressive measures. — 304.  Policy  of  the  United  States  in  the  Philippines. 

CHAPTER  XIV. 

Responsibiuty  of  Commanders — Military  Government. 

305.  Authority  commander,  military  government,  limited  by  laws  war. 
— 306.  In  foreign  State,  no  necessity  complications. — 307.  If  on  territory 
reclaimed  from  rebels  treated  as  belligerents,  policy  a  local  one. — 308  . 
Army  and  Navy  officers  responsible  to  President. — 309.  States  responsible, 
approved  acts  of  subordinates. — 310.  Responsiljility  military  commander 
both  military  and  civil  in  nature. — 311.  Military  responsibility  considered. 
— 312.  Same  subject. — 313.  Conqueror  not  responsible  to  subjugated  peo- 
ple except  under  laws  of  war. — 314.  Legality  acts  those  enforcing  military 
government  may  be  inquired  into. — 315.  Sotmd  policy,  State  sustains  mili- 
tary officers. — 316.  Actions  either  ex  contractu  or  nx  delicto. — 317.  Military 
responsibility  to  neutrals,  also  to  subjects  of  own  State. — 318.  Actions  ex 
delicto;  case  Mitchell  v.  Harmony.  —319.  Remedial  legislation,  meet  hard- 
ships of  war. — 320.  Same  subject. — 321.  Organization  Court  of  Claims. — 
322.  Military  commander  entitled  ever>.'  intendent  in  his  favor. — 323. 
Law  responsibility  official  vested  with  discretion  in  determining  facts, 
and  exercising  judgment  thereon.—  324.  Military  government  essentially 
one  of  vigilance  and  prompt  action. — 325.  Rule  responsibility  of  subordin- 
ates.— 326.  Rule  responsibility  military  commander,  same  as  of  judges  on 
the  bench. — 327.  Same  subject. — 32S.  Same  subject. — 329.  Illustrations 
drawn  from  Civil  War. — 330.  Same  subject. — 331.  Same  subject. — 332. 
Rule  of  necessity,  enunciated  case  Mitchell  v.  Harmony,  examined. 


CONTENTS.  Xix 

CHAPTER  XV.         ; 

Military  Government — Tribunals. 

333-  War-court,  as  distinguished  from  court-martial. — 334.  Early 
instances  in  U.  S.  services,  of  invoking. — 335.  Conduct  General  Scott, 
Mexico,  in  this  regard. — 336.  Absence  of  statutes,  customs  of  war  gov- 
ern, proper  cases. — 337.  Responsibility  of  commander  who  appoints  mil- 
itary commission. — 338.  Responsibility,  members  war-courts. — 339.  Mili- 
tary commissions  under*  autthority  either  statute  or  custom  war. — 340. 
Rule  of  responsibility,  members  war-court. — 341.  Jurisdiction  war-court 
as  to  persons. — 342.  )War-court,  cognizance  all  proper  causes,  except 
statute  has  otherwise  provided. — 343.  Experience  British  in  South 
Africa, 

CHAPTER  XVI. 

When  Military  Government  Ceases. 

344.  Necessity  determining  when  military  government  ceases. — 345. 
Conqueror  may  be  expelled,  hold  territory  permanently,  or  surrender  by 
treaty. — 346.  If  permanently  held,  ceases  with  establishment  civil  govern- 
ment.— 347.  Illustration. — 348.  Same  subject. — 349.  Same  subject. — 350. 
Rights  people  then,  such  as  dominant  government  concedes. — 351.  Pol- 
icy of  the  United  States. — 352.  Case  of  States  after  Civil  War. — 353. 
Dates  termination  Civil  War. — 354.  Though  active  hostilities  cease,  state 
of  war  exists  till  peace  fully  established. — 355.  If  country  be  j)ermanent- 
ly  held,  military  government  ceases  at  pleasure  of  authority  that  insti- 
tuted it. — 356.  Recent  illustrations. 


CONTENTS. 


PART  II.— MARTIAL  LAW. 

^  CHAPTER  XVII.  1 

Martial  Law  Distinguished  from  Military  Law. 

357.  Definition  of  martial  law. — 358.  Domestic  and  ordinarily  un- 
written.— 359.  War  power,  or  extensive  police  power,  depending  on  cir- 
cumstances.— 360.  Erroneously  confounded  with  military  law. — 361.  Ori- 
gin martial  law  in^  English  jurisprudence. — 362.  Same  subject. — 363.  Or- 
iginally meant  the  discipline  of  the  camp. — 364.  Same  subject. — 365.  Sup- 
plements short-comings  of  the  civil  law. — 366.  Can  now  apply  to  soldiers 
and  civilians  alike. — 367.  Martial-law  practice  under  Charles  I. — 368. 
Scope  of  martial  law. — 369.  Implied  powers  of  Executive. — 370.  Expe- 
riences martial  law,  Southern  Confederacy. — 371.  Rights  of  few  give  way 
to  preservation  of  the  many. — 372.  Not  necessary,  martial-law  theater 
that  of  active  w  ar. — 373.  Legal  w^hen  civil  authorities  fail  in  functions. — 
374.  Those  who  enforce  martial  law  answerable  before  the  courts. — 375. 
Must  be  limitted  to  time  and  place  of  necessity. — 7,7^-  Resort  to  martial 
law  a  common  practice. — 2>77-  View  of  it  as  belligerent  right. — 378.  Mil- 
itary in  first  instance  judges  of  necessity. — 379.  Invoked,  suppress  local 
disturbance. — 380.  As  belligerent  right,  based  on  laws  of  war  alone. — 
381.  Principle  of  civic  responsibility  the  characteristic  of  domestic  mar- 
tial law. — 382.  Parliamentary  martial  law  in  Ireland. — 383.  The  great 
desideratum,  reconcile  necessities  of  government  with  security  to  per- 
sonal rights. — 384.  Instances  during  times  of  peace  in  United  States. — 
385.  Principles  relating  to  the  instituting  and  execution  of  martial  law 
maintained  in  this  treatise. 

CHAPTER  XVIII. 

Martial  Law  under  English  Jurisprudence. 

386.  Scope  martial-lawr  authority  varies  under  different  governments. 
— 387.  Under  British  government  is  regarded  as  inaugurating  war  condi- 
tions.— 388.  Experiences  in  Ireland. — 389.  Distinctive  features,  martial- 


CONTENTS.  XXi 

law  statute. — 390.  Import  of  these  principles. — 391.  British  colonial  ex- 
periences.— 392.  Prosecutions  at  home  for  martial-law  acts  in  colonies. — 
393.  Question,  vital  importance,  if  offences  after  active  disorder  ceased,  to 
be  tried  by  martial-law  courts. — ^394.  This  experience  contrasted  with 
some  in  the  United  States. — 395.  Character  of  British  martial-law  tribu- 
nals.— 396.  Martial  law  not  affect  those  subject  Mutiny  .A.ct. — 397.  Viewed 
as  branch  of  the  royal  prerogative. — 398.  Distinction,  martial  and  mil- 
itary law. — 399.  In  theory  not  part  of  British  jurisprudence. — 400.  In 
practice  has  become  so  from  necessity. —  401.  Notwithstanding  Peti- 
tion of  Right,  great  exigencies  during  peace  have  rendered  martial  law 
necessary,  and  therefore  legal. — 402.  A  condition  of  war  may  exist  with- 
out actual  war;  then  martial  law  finds  its  place. — 403.  Instances  from 
English  history. — 404.  If  unknown  to  English  jurisprudence,  known  to 
English  experience. — 405.  Idle  fears,  military  domination. — ^406.  True 
test  of  justification,  failure  civil  administration. — -407.  vSame  subject. — 
40S.  Principles  announced  for  enforcement. — ^409.  These  principles  exam- 
ined.— 410.  Same  subject. — 411.  Same  subject. — 412.  Same  subject. — 413. 
Same  subject. — 414.  Who  judges  of  necessity. — 415.  Remarks  on  civil 
responsibility  military  officer. — 416.  Principle  same  case  civil  official. 
— 417.  Inequality  situations  military  and  civil  officers  more  apparent 
than  real. — 418.  Courts-martial  rules  advisable  for  martial-law  courts. — 
419.  Method  enforcing  martial  law  varies  with  circumstances. 

CHAPTER  XIX. 

Tkbory  of  Martial  Law  in  the  United  States. 

420.  Diverse  experiences,  caused  diverse  views  martial  law,  American 
and  British  practice. — 421.  Attorney-General's  definition  martial  law. — 
422.  His  view,  function  officer  executing. — 423.  Remarks  on  these  views. 
— 424.  View  that  abolishes  all  law,  substituting  will  military  commander. 
— 425.  Confounding  here  military  government  as  part  of  law  of  war  with 
martial  law  as  domestic  fact. — 426.  Error  considering  martial  law  as 
setting  ujj  irresponsible  officials. — 427.  \Mew  of  U.  S.  Supreme  Court, 
martial  law  sometimes  justifiable,  therefore  then  legal. — 428.  Court  de- 
cided martial  law  not  legal  when  civil  adn:inistration  unobstructed. — 429. 
State  judge  of  necessity  martial  law  within  own  limits,  case  defiance  own 
authority. — 430.  Martial  law  legally  established,  acts  to  give  it  effect 
justifiable  under  legal  responsibility  for  abuse  power. — -431.  This  the 
common-law  rule,  official  responsibility. — 432.  Fears  of  early  patriots  of 
abuse  of  military  power  not  confirmed  by  centur}^'s  experience. — 433. 
Deep-seated  respect  of  Uijited  States  military  officers  for  civil  institutions 
and  authority. — 434.  Necessity  martial  law  New  Orleans,  1814-15. — 435. 


XXU  CONTENTS. 

Universality  of  demand,  military  and  civil  communities,  for  measure. — 436. 
Martial  law  here  a  war  measure. — 437.  In  the  United  States  martial  law 
is  deemed  an  offspring  of  real  necessity,  to  be  exercised  under  legal  re- 
sponsibility.— 438.  In  this  view  is  exercise  last  dormant  power  of  gov- 
ernment.— 439.  Experiences  in  Soivthem  Confederacy,  same  character  as 
in  United  States. — 440.  Same  subject. 

CHAPTER  XX. 

Martial  Law  Supplements  Common  Law. 

441.  Defect  in  common  law,  presupposes  always  available  armed  force 
adequate  preservation  public  peace  and  security. — 442.  Reliance  on  such 
force,  some  cases,  ilhisory. — 443.  I<ed  to  assumptions  power,  preserve 
peace. — 444.  Duty  ever\'  citizen  help  suppress  lawlessness. — 445.  Rule 
responsibility  case  of  accidental  killing. — 446.  Same  in  case  of  attempted 
felony. — 447.  Great  responsibility,  case  death,  caused  timidity  in  sup- 
porting lawful  authorities. — ^448.  Common  law  recognizes  the  customs  of 
war  in  emergencies. — ^449.  Martial  law  came  to  aid  of  the  common  law. — 
450.  Fears  that  might  be  cloak  for  usurping  authority. — 451 .  But  necessity 
to  meet  grave  exigencies  that  common  law  could  not  meet,  caused  accept- 
ance of  martial  law  as  the  last  resort. — 452.  Early  prejudices  in  American 
colonies  to  anything  savoring  of  military  rule. — 453.  Declaration  martial 
law  in  Boston  by  General  Gage,  1775. — 454.  Same  subject. — 455.  Cir- 
cumstances amply  justified  resort  to  martial  law. — ^456.  Colonial  authori- 
ties resorted  to  martial  law  as  war  measure. — 457.  Instances  of  all  power 
placed  in  hands  commander-in-chief. — 458.  The  trust  not  abused. 

CHAPTER  XXI. 

Nature  of  Necessity  Justifying  Martial  Law. 

459.  The  necessity  that  justifies  martial  law  is  overwhelming,  the  re- 
sult of  a  failure  of  civil  administration  to  perform  its  functions;  it  eschews 
expediency. — 460.  When  inaugurated,  the  military  authority  is  supreme. 
— 461.  New  York  city  mobs  in  1863. — 462.  The  justifying  necessity 
varies  with  circumstances. — -463.  Necessity  may  exist  for  instituting 
martial  law,  even  though  civil  courts  may  be  able  to  sit,  if  total  conditions 
are  such  as  to  defeat  ends  of  government. — 464.  Same  subject. — 465.  Dis- 
inclination officials  do  duty  may  cause  necessity  as  much  as  adverse 
physical  force. — 466.  Invasion,  and,  in  some  instances,  threatened  in- 
vasion, may  justify. — 467.  Same  subject. — 468.  Necessity  directing  all 
resources  country  repelling  invasion  may  warrant  martial  law. — 469 
Necessity    must    be    instant,    overwhelming. — 470.  Same    subject. — 471. 


CONTENTS.  XXUl 

Principles  upon  which  those  who  execute  martial  law  to  be  the  judges. — 
472.  Terror  and  civil  disorganization  accompanjdng  invasions  may  just- 
if\-. — 473.  Secret  machinations,  inertness  on  part  civil  officials,  may  just- 
ify.— 474.  Illustrations. — 475.  Same  subject. — 476.  Continued  at  New  Or- 
leans after  news  peace  received. — 477.  Proximity  of  enemy  caused  it  to 
be  instituted  and  maintained. — 478.  The  one  overwhelming  necessity  was 
repelling  invasion  by  every  means. — ^479.  To  repel  the  invader  at  the 
gates  overshadowed  all  other  considerations. — 480.  Self-defence  right 
of  courts,  legislatures,  communities.  States,  nations,  as  well  as  of  indi- 
viduals.— 481.  Under  this  principle  martial  law  is  justified. — 482.  Doubt- 
ful loyalty  large  part  people  Louisiana  justified  martial  law. — 483.  Com- 
mon law  not  suited  case  rebellion. — 484.  Riot  Act  an  attempt  to  meet 
this  difficulty. — 485.  Difficulty  uniting  law-abiding  elements  renders 
often  resort  to  military  a  necessity. — 486.  Instances  of  this,  Baltimore, 
1861. — 487.  Courts  of  justice  sat  unimpeded  this  case. — 488.  All-per- 
vading undercurrent  disloyalty  called  for  military  rule. — 489.  Same  sub- 
ject.— 490.  Opinion  Chief  Justice  Taney,  Merryman  case,  based  on  fallacy 
of  assumed  loyalty,  whereas  disloyalty  poisoned  all  sources  whence 
flowed  local  official  action. — 491.  Wisdom  of  President  Lincoln's  course. 
— 492.  Necessary  in  Kentucky  as  a  belligerent  measure. — 493.  Same  sub- 
ject.— 494.  Same  subject. — 495.  Wide-spread  active  disaffection  may  par- 
alyze courts  as  much  as  exertion  of  physical  force. — 496.  This  was  con- 
dition affairs  in  Kentucky,  i864J^ 

CHAPTER  XXII. 
Federal  Authority  to  Institute  Martial  Law. 
497.  Martial  law  may  be  invoked  by  either  Federal  or  State  govern- 
ment.— 498-  Early  theories,  employing  military,  domestic  disturbance. 
United  States. — 499.  When  local  authorities  fail.  President  authorized  by 
law  to  use  military  power. — 500.  Same  subject. — 501.  In  Federal  matters. 
President  independent  State  authorities. — 502.  Subordinates  may  be  en- 
triisted  to  enforce  President's  authority. — 503.  Commanding  officer  may 
extend  his  authority  over  environment  camp,  time  of  war. — 504.  Supreme 
Court  U.  S.  sustains  State  exercising  martial-law  powers. — 505.  It  met 
the  peril  of  armed  resistance  to  government. — 506.  Deceptive  nature  illus- 
trations, early  English  history. — 507.  Important  Supreme  Court  state- 
ment, martial,  law  constituted  a  state  of  war. — 508.  In  such  circumstances 
military  not  subordinate  to  civil  authorities. — 509.  Responsibility,  arrests 
out  of  martial-law  district. — 510.  Such  arrests  might  be  legal,  certain 
conditions. — 511.  INIartial  law  during  i-econstructiori  period  following 
Civil  War. — 512.  Suspension  privilege  writ  habeas  corpus  in  New  Mexico. 
— 513.  Privilege  of  habeas  corpus  in  Colorado. — 514.  Assumption  of  mill- 


XXiv  CONTENTS. 

tary  control  io  Arizona. — 515.  Martial  law,  State  of  Missouri. — 516.  Con- 
firmed by  the  President. — 517.  Fallacy  of  doctrine  that  martial  law  can 
not  be  exercised  if  no  physical  obstacle  exists  to  sitting  of  courts. — 
518.  Same  subject. — 519.  Martial  law  continued  as  military  necessity,  a 
belligerent  measure,  during  continuance  of  war. — 520.  Divisions  that 
grew  up  among  friends  of  the  Union  in  Missouri. — 521.  Principles  en- 
forcing martial  law  precisely  defined. — 522.  Civil  authorities  and  insti- 
tutions treated  with  greatest  respect. — 523.  Generous  policy,  mis- 
understood, led  to  more  drastic  measures.^524.  Martial  law  may  be 
justified  even  if  no  physical  obstacle  to  courts  sitting. — 525.  Martial 
law,  Baltimore,  1863,  on  principle  o.*"  belligerency. — 526.  Close  relation 
power  suspend  privileges  writ  habeas  corpus  and  to  order  martial  law.— 
527.  Martial-law  measures  taken,  case  evasion  of  draft. — 528.  Right  of 
arrest,  trial,  punishment,  carried  to  extreme. — 529.  Measures  of  President 
subject  to  Congressional  discussion. — 530.  Proclamation  President  Lincoln, 
September  15,  1863. — 531.  War  Department  orders  issued  defining  course 
of  affairs. — 532.  The  period  one  of  necessary  arbitrary  acts. — 533.  Bill  in 
nature  indemnity  act  passed  by  Congress. — 534.  Thus  secured  officers  a 
protection  against  persecutions  in  performance  of  military  duty. — 535. 
Courts  inclined  construe  law  strictly. — 536.  Easily  carry  commendable 
speculations  too  far. — 537.  President  revokes  martial-law  measures,  end 
Civil  War. — 538.  Military  control.  District  Columbia,  during  Civil  War. — 
539.  Same  subject.  ; 

CHAPTER  XXIII. 

CONGRESSIONAt,   M.\RTI.\L   L.\W. 

540.  View  of  Federal  martial  law  includes  power  to  Congress  to  estab- 
lish.— 541.  Congress  well-nigh  omnipotent  under  theory  United  States  Gov- 
ernment.— 542.  Reconstruction  Acts  created  what  in  fact,  if  not  in  express 
terms,  was  martial  law. — 543.  The  military  administration  created  by 
the  so-called  Reconstruction  Acts  was  that  of  martial  law  in  rigid  form. 
544.  Reluctance  administration  to  acknowledge  true  import  of  acts  led 
to  more  drastic  military  measures,  thus  emphasizing  martial-law  powers 
Congress. — 545.  Same  subject. — 546.  Latent  spirit  rebellion  throughout 
Southern  States  caused  these  military  measures. — 547.  Legislation  even 
pushed  to  questionable  Congressional  limits,  impugning  authority  Presi- 
dent.—548.  Authority  general  of  the  Army  greatly  augmented. — 549. 
Reconstruction  Acts  created  a  military  despotism. — 550.  The  military 
paid  every  proper  regard  to  the  civil  administration. — 551.  This  defer- 
ence to  civil  authority  part  of  the  United  States  regular  Army  system. — 
552.  A  great  measure  relief  for  military  when  predominant  in  community 
to  have  assistance  loyal  civil  authorities. — 553.  Same  subject. 


CONTENTS.  XXV 

CHAPTER  XXIV. 

Martial  Law  in  States  and  Territories. 

554.  Martial-law  authority  States  and  Territories  distinct  from  that 
of  Federal  power. — 555.  Guarantee  of  Art.  4,  Sec.  4,  Constitution. — 556. 
What  constitutes  republican  government  matter  of  Federal  cognizance. — 
557.  Same  true  when  United  States  moves  to  protect  State  against  invasion- 
— 558.  Case  of  domestic  violence  State  legislature  should,  if  practicable, 
apply,  if  necessary,  for  Federal  protection. — 559.  President  decides  what 
State  aixthorities  to  recognize. — 560.  Statutes  that  authorize  employment 
of  military,  execution  of  laws,  pay  proper  regard  to  civil  jurisdiction, 
State  and  Federal. — 561.  President  exercises  discretion  when  State  calls 
for  assistance. — 562.  President  determines  under  whom  military  sent 
into  State  shall  act. — 563.  Same  subject. — 564.  Same  subject. — 565. 
Limit  of  authority  Federal  jurisdiction  in  State. — 566.  President's  au- 
thority enforce  martial  law  on  State's  demand  for  protection,  seems  com- 
plete.— 567.  State  executive  martial-law  power  proper  occasion  of  neces- 
sity; illustrations. — 568.  Same  subject. — 569.  These  occasions  military 
placed  above  civil  authorities,  and  sustained  by  State  Supreme  Court. — ■ 
570.  Confederate  States  exercised  martial  law  without  hesitancy  cases  of 
necessity. — 571.  Martial  law  in  Territories  of  Union. — 572.  Same  subject. 
— 573-  Same  subject. — 574.  Same  subject. — 575.  Experiences  New  Mex- 
ico and  Arizona. — 576.  Apparent  increasing  number  of  occasions  when 
military  mvolved  in  civil  affairs  in  United  States. — 577.  Evidences  of 
reckless  spirit  abroad  in  land. — 578.  Exhibition  weakness  civil  authorities 
and  of  posse  comitatiis. — -579.  Failure  posse  comitafus  causes  resort  to 
military. — 580.  Declaration  martial  law  not  necessary  to  institute  and 
carry  into  eflfect. — 581.  The  law  of  the  camp,  in  so  far  as  necessary,  now 
extends  to  whole  community. — 582.  Necessity  the  keynote  martial-law 
situation. — 583.  English  rule  holding  to  responsibility  for  exercise  dis- 
cretionary authority  in  field. 

CHAPTER  XXV. 

Administr.\tion  of  Martial  Law. 

584.  Efficient  system  administering  martial  law  a  necessity. ^585 
Effect  martial  law  regarding  offences  and  methods  of  dealing  with  them. — 
586.  Acts  that  are  harmless  ordinary  civil  conditions  may  be  grave  of- 
fences under  martial  law. — 587.  Martial  law  justifies  necessary  force  to 
attain  its  ends. — 588.  Fact  illustrated  during  Civil  War. — 589.  Both 
President  and  Congress  exercised  power  suspend  writ  of  habeas  corpus. — 
590.  All  who  act  in  district  to  defeat  martial  law  may  be  arrested. — 591. 
Bill  of  rights  not  effective  time  of  war,  necessarily,  nor  cloak  for  license. — 


XXVI  CONTENTS. 

592.  Mr.  Webster's  view  of  martial-law  authority. — 593.  Commander 
must  assume  authority  of  acting  or  taking  initiative. — 594.  Authority  to 
be  exercised  same,  whether  danger  comes  from  open  resistance  to  laws 
or  secret  machinations. — 595.  Same  subject. — 596.  Change  in  judicial 
opinion  in  United  States  as  to  exercise  of  martial-law  powers. — 597.  Same 
subject. — 598.  Same  subject. — 599.  Untenable  attitude  of  judges  in  Lou- 
isiana case,  1814-15. — 600.  Same  subject. — 601.  Opinion  of  Louisiana 
judges  not  consistent  in  itself. — 602.  Attitude  of  courts,  recent  instances 
enforcing  martial  law. — 603.  Same  subject. — 604.  Courts,  recently,  firmly 
setting  face  against  lawlessness,  sustain  military  when  involved. 

CHAPTER  XXVI. 

Martial-Law  Tribunals. 

605.  Martial-law  tribunals  correspond  to  offences  of  this  unusual 
time. — 606.  Disposition  some  to  question  legality  martial-law  tribunals. — • 
607.  All  lawful  authority  not  necessarily  on  statute;  the  duty  being 
lawfully  imposed,  all  necessary  power  to  accomplish  is  lawful. — 608. 
Same  principle  authorizes  summary  military  tribunals. — 609.  Military 
commissions  based  alike  on  statutory  law  and  common  laws  of  war. — 610. 
Commanding  general  authority  to  appoint. — 611.  Martial-law  courts  not 
to  interfere  with  courts-martial. — 612.  Jurisdiction  depends  on  custom, 
statute,  orders  of  convening  authorities. — 613.  Court-martial  responsi- 
bility attaches  to  martial-law  courts. — 614.  Theory  as  to  territorial 
limits,  jurisdiction  of  martial-law  courts;  correctness  of  these  views 
questioned. — 615.  Limit  jurisdiction  regarding  time  when  offence  com- 
mitted.— 616.  Procedure  should  follow  rules  of  courts-martial. — 617.  In 
determining  responsibility,  those  who  exercise  martial  law,  great  weight 
due  to  customs  of  military  service. — 618.  Character  martial-law  courts  in 
Jamaica  examined  by  royal  commission. — 619.  Not  same  precision  in 
charges  required  in  civil  courts,  nor  limit  of  sentences  same. — 620.  In  United 
States  only  grave  cases  warrant  invoking  martial-law  tribunals. — 621. 
Martial-law  courts  adjust  procedure  to  attaining  substantial  justice. — 622. 
Militar}'^  authority  over  civil  community  instinctively  disagreeable  to  mil- 
itary men. — 623.  Only  on  or  adjacent  to  theatre  of  war  is  martial  law  initi- 
ated by  military  men;  elsewhere  by  the  civil  officials. — 624.  Rules  evidence 
before  martial-law  tribunals;  common-law  rules  not  necessarily  applicable. 
— 625.  Ignorance  as  to  rule  of  laws  of  evidence  by  military  officers;  not  pari 
of  their  business. — 626.  The  simplest  of  these  only  followed  in  military 
courts,  and  at  discretion  of  courts. — 627.  Same  rule  British  service. — 
628.  Military  courts  by  this  process  arrive  at  substantial  justice;  as  much 
so  as  civil  courts  by  more  elaborate  system. — 629.  Civilians  generally 


CONTENTS.  XXVll 

but  not^necessarily '  turned  over  to  civil  courts ;  but  this  depends  on  cir- 
cumstances. 

CHAPTER  XXVII. 

Responsibility  of  Commanders — Martial  Law. 

630.  Necessity  of  martial  law,  also  conduct  officials  enforcing,  may 
be  inquired  into  by  courts. — 631.  If  official  keeps  within  limits  of  discre- 
tionary authority,  not  responsible  except  maliciously  abuse  authority 
632.  Rule  of  justification  of  official  more  liberal  than  case  of  private  cit- 
izen who  assumes  to  act. — 633.  Case  of  Captain  Wilkes,  U.  S.  Navy. — 634. 
Great  importance  of  decisions  supreme  Federal  tribunal  sustaining  offi- 
cers in  performance  of  duty. — 635.  Necessity  sustaining  executive  officers 
peculiarly  important. — 636.  Imnmnity  flowing  from  customs  of  war 
equally  efficacious  with  statute. — 637.  Officers  entitled  to  every  consider- 
ation due  to  peculiarly  trjdng  situations. — 638.  Rule  of  responsibility 
more  generous  in  ancient  times. — 639.  Instances  in  War  of  18 12. 
Reading  of  Articles  of  War  in  those  cases. — 640.  These  articles  construed 
practically  during  Civil  War. — 641 .  Caution  w^ith  which  commanders  should 
proceed  against  civilians. — 642.  Case  of  McCoimell  v.  Hampton. — 643. 
Erroneous  principles  involved  in  this  decision. — 644.  Civil  courts  should 
remember  that  martial-law  measures  alone  may  have  enabled  them 
to  sit. — 645.  McConnell  v.  Hampton  not  a  precedent  of  the  law  at  the 
present  day. — 646.  Statement  of  law  governing  such  cases  at  this  time. — 
647.  So  long  as  officers  keep  within  proper  jurisdiction,  deserve  and  gen- 
erally receive  support. — 648.  Officers  must  be  governed  by  customs  of 
war  in  absence  of  statute. — 649.  Judgments  of  courts  in  quietness  may 
differ  from  decisions  of  executive  officers  in  times  of  turbulence.  —  650. 
Protection  of  officers  by  statute. — 651.  Great  importance  of  Supreme  Court 
decision  in  case  of  In  re  Neagle. — 652  United  States  officials  triable  for  of- 
ficial acts  in  Federal  forum. — 653.  Executive  officers  deserve  consideration 
for  difficulties  that  attend  their  situation  in  great  emergency. — 654.  On 
such  occasions  the  firm  course  is  that  of  duty  and  patriotism. — 655.  The 
civil  judicature  must  ultimately  decide  question  whether  preser\'ation  of 
rights  of  all  may  justify  temporary  sacrifice  rights  of  few. — 656.  Military 
in  suppression  of  disorder  in  manner  appointed  by  law,  rights  and  obliga- 
tions those  of  war.     Military  duty  must  be  done  in  military  way. 

CHAPTER  XXVni. 

Responsibility  of  Subordinates. 

657.  Cheerful  obedience  to  lawful  orders  of  military  superiors  the  vital 
principle  of_.'niilitary  system. — 658.  Subordinates  cannot  interpose,  if  prose- 
C— 


XXviii  CONTENTS. 

cuted,  the  unlawful  orders  of  superiors. — 659.  Apparent  severity  of  this 
rule  said  to  be  necessary  to  protect  community  from  arbitrary  acts. — 660. 
Hardships  of  strict  rule  has  led  to  courts  modifying  in  tenderness  to 
subordinates. — 661.  Same  subject. — 662.  As  a  result,  the  superior  who 
orders  now  responsible,  unless  orders  manifestly  illegal  to  man  of  ordi- 
nary understanding. — 663.  If  superior  acted  in  good  faith,  for  public 
good,  not  to  be  assessed  exemplary  damages. — 664.  Rule  of  military  re- 
sponsibility greatly  ameliorated  in  modern  times. — 665.  Rule  of  obedi- 
ence laid  down  in  Martin  v.  Mott. — 666.  The  situation  of  subordinate 
as  to  responsibility  different  from  that  of  superior  who  gives  order — 
667.  Salutary  character  of  rule  justifying  act  of  subordinate  unless  pal- 
pably illegal. — 668.  Regrettable  circumstance  that  rule  of  subordinate's 
responsibility  should  be  left  in  the  least  doubt. — 669.  Special  rule  of 
responsibility. — 670.  Opinion  of  Mr.  Justice  Stephen. — 671-  Same  by 
Willes,  J.,  and  Mr.  Dicey. — 672.  Rule  of  responsibility  not  absolute ;  but 
nothing  excuses  disobedience  of  legal  order. — 672,-  Responsibility  of 
members  of  military  tribunals  same  as  if  distinct  order  to  individual 
officer. — 674.  Same  subject. — 675.  If  tribunal  had,  apparently,  jurisdic- 
tion, not  responsible  if  facts  afterwards  prove  otherwise. — 676.  Juris- 
diction had;' not  responsible  unless  prove  members  acted  maliciously. 

CHAPTER  XXIX. 

Bills  of  Indemnity. 

677.  Bills  of  indemnity,  after  martial  law,  customary  in  English  jur- 
isprudence.— 678.  Under  legislative  martial  law,  such  bills  only  indemnify 
for  acts  in  cases  of  customary  practices  under  martial  law. — 679.  Colo- 
nial bills  of  indemnity. — 680.  If  martial  law  legally  instituted,  and  con- 
duct proper  under  it,  bill  of  indemnity  adds  nothing  to  security;  only 
statute  of  repose. — 681.  Scope  under  this  view  bills  of  indemnity. — 682. 
Policy  involved  in  bills  of  indemnity. — 683.  Statutes  nature  bills  of  in- 
demnity after  Civil  War. — 684.  Same  subject. — 685.  Same  subject. — 686. 
Same  subject. — 687.  Same  subject. — 688.  Exercise  military  authority  over 
civil  community,  as  experience  has  shown,  in  emergencies,  not  cause  of 
alarm. — 689.  This  duty  not  attractive  to  the  military. — 690.  Absolutely 
necessary  that  military  be   sustained   in   reasonable  use  of  authority. 


CONTENTS.  XXIX 

APPENDICES. 
I. 

General  Scott's  Martial-law  Order,  published  in  City  of  Mexico. 

II. 

Instructions  for  United  States  Armies  in  the  Field,  and  Supplement 
(G.  O.,  loo,  A.  G.  O.,  1863,  and  G.  O.,  No.  3,  A.  G.  O.,  1892);  together 
with  corresponding  Articles  of  the  Hague  Conference  Code  of  1899. 

III. 

The  Brussels  Project  of  an  International  Declaration  concerning  the 
laws  and  customs  of  War. 

IV. 

Proposed  Code  of  the  Laws  of  War  adopted  at  session  of  Institut  de 
Droit  International,  Oxford,  September,  1880. 

V. 

State  of  Siege  in  France. 

VI. 

Instructions  for  the  Government  of  the  Armies  of  the  United  States 
in  Time  of  War. 


Military  Government  and  Martial  Law. 


INTRODUCTION. 
Military  Government. 

1.  Military  jurisdiction  is  treated  in  the  following  pages 
in  its  two  branches  of  Military  Government  and  Martial  Law. 
The  former  is  exercised  over  enemy  territory;  the  latter  over 
loyal  territory  of  the  vState  enforcing  it. 

2.  The  enemy  territory  over  which  military  government  is 
established  may  be  either  without  the  territorial  boundaries 
of  the  dominant  State,  or  comprise  districts  occupied  by  rebels 
treated  as  belligerents  within  those  boundaries. 

It  has,  however,  been  determined  by  numerous  decisions 
of  the  Supreme  Federal  Tribunal  that,  for  all  war  purposes, 
districts  thus  occupied  by  rebels  are  foreign.  From  a  bellig- 
erent point  of  view,  therefore,  the  theatre  of  military  govern- 
ment is  necessarily  foreign  territory.^  "Moreover,  military  gov- 
»ernment  may  be  exercised  not  only  during  the  time  that  war 
is  flagrant,  but  down  to  the  period  when  it  comports  with  the 
policy  of  the  dominant  power  to  establish  civil  jurisdiction, 
3-  On  the  other  hand,  martial  law  as  here  considered  is 
.  purely  a  domestic  fact,  being  instituted  only  within  districts 
j  which,  in  contemplation  of  law,  are  friendly.^  However  it 
may  be  brought  into  existence,  the  key-note  of  the  situation 
is  that  martial  law  is,  as  just  stated,  a  domestic  fact. 

4.  The  distinction"  is  important.     Military  government  is 
^    thus  placed  within  the  domain  of  international  law,  its  rules 
^k         I.  Pomeroy's  Constitutional  Law  (Bennett's  third  edition),  par.  712, 
Wfv-  595.     2.  Ibid. 
"^  21 


22  MILITARY    GOVERNMENT    AND    MARTIAl,    LAW. 

the  laws  of  war,  while  martial  law  is  within  the  cognizance 
of  municipal  law.  The  difference  between  these  two  branch- 
es of  military  jurisdiction  becomes  most  strikingly  manifest 
through  the  dissimilar  rules  of  responsibility  under  which 
officers  exercise  their  respective  powers  in  the  two  cases. 
With  rare  exceptions,  the  military  governor  of  a  district  sub- 
dued by  his  arms  is  amenable  according  to  the  laws  and  cus- 
toms of  war  only  for  measures  he  may  take  affecting  those 
found  there,  whatever  their  nationality;  whereas  he  who  en- 
forces martial  law  must  be  prepared  to  answer,  should  the 
legality  of  his  acts  be  questioned,  not  only  to  his  military 
superiors,  but  also  before  the  civil  tribunals  when  they  have 
jesumed  their  jurisdiction. 

5.  The  theory  of  temporary  allegiance  has  been  adopted 
as  most  aptly  descriptive  of  the  relations  borne  by  those  in 
the  occupied  district  toward  the  military  government  estab- 
lished over  them.  It  has  the  sanction  of  repeated  decisions 
of  the  Supreme  Court  of  the  United  States  with  reference 
both  to  our  own  people  temporarily  subjected  to  foreign  rule, 
and  enemy  subjects  when  brought  under  our  military  control. 
And  although  this  theory  is  rejected  by  some  respectable 
writers,  the  weight  of  authority  and  all  practice  favor  it.  Cer- 
tainly in  the  light  of  the  judicial  decisions  referred  to  it  is  en- 
titled to  great  respect. 

Not  only  does  this  theory  give  a  juster  conception  of  the 
relations  existing  between  the  ruler  and  people  ruled  under 
these  circumstances  than  any  other,  but  it  is  based  upon  con- 
siderations which  are  peculiarly  advantageous  to  the  latter. 
It  signifies  to  them  protection  to  person  and  property  in  so  far 
as  this  course  is  compatible  with  a  proper  prosecution  of  the 
war  by  the  dominant  power.  To  appreciate  its  beneficence 
we  have  only  to  recall  what  a  great  relaxation  this  is  from  the 
strict  rules  of  war. 

Formerly  adverse  military  occupation  vested  in  the  con- 
queror a  right  to  all  property  found  there  and  transferred  to 
him  the  sovereignty  of  the  subjugated  territory.     He  appro- 


INTRODUCTION.  23 

priated  the  former  without  stint,  nor  did  he  hesitate  to  press 
the  inhabitants  into  the  ranks  of  his  army.  That  was  the  rule 
from  earliest  times  down  through  the  Napoleonic  period.  It 
is  true  that  the  dissemination  of  learning  and  the  advances 
of  civilization  ameliorated  the  condition  of  the  conquered, 
yet  neither  Frederick  the  Second  nor  Napoleon  hesitated 
either  to  lay  violent  hands  upon  enemy  property  regardless  of 
military  necessities,  or  to  recruit  their  armies  from  the  people 
of  conquered  provinces  who  were  forced  into  the  service.  Wel- 
lington was  more  humane. 

Can  it  be  denied  that,  under  the  theory  of  temporary  alle- 
giance, the  position  of  those  who  are  subjected  to  military 
government  is  not  m-ore  eligible  than  that  here  portrayed? 

There  is  no  mystery  regarding  the  foundation  upon  which 
the  duty  of  temporary  allegiance  rests.  Upon  this  point  the 
language  of  the  Supreme  Court  is  very  emphatic.  When  the 
regular  government  is  driven  out  and  no  longer  can  secure  the 
people  in  those  rights  which  government  principally  is  insti- 
tuted to  maintain,  their  allegiance  is  for  the  time  in  abeyance> 
and,  in  a  modified  form,  is  transferred  to  that  government — 
even  though  it  be  founded  on  overpowering  adverse  military 
force — which  can  and  does,  either  wholly  or  partially,  secure 
them  in  those  rights.^  Nor  does  it  signify  that  the  inhab- 
itants do  not  by  visible  signs  join  with  their  military  ruler 
in  arranging  the  details  of  his  government.  Their  covenant 
is  implied;  but  it  is  none  the  less  binding  because  it  consists 
in  silent  acquiescence  in  the  new  order  of  things.  What  the 
conqueror  does  from  generosity  is  in  derogation  of  his  strict 
rights.  And  whatever  may  be  his  motives,  the  result  is  apt 
to  be  far  more  beneficial  to  the  conquered  than  to  himself. 
He  is  dictating,  they  accepting,  terms.  Happy  their  lot  that 
he  is  thus  willing  to  concede  to  them  many  immunities  from 
the  hard  fortunes  of  war.  From  any  other  than  a  humani- 
tarian view  it  is  a  matter  of  indifference  to  him  whether  or 


I.  4  Cranch,  211;  4  Wheaton,  453,  9  Howard,  603. 


24  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

not  they  are  protected  in  their  rights  of  life  and  property; 
to  them  it  is  a  matter  of  vital  importance.  He  is  there  to 
enforce  his  will  and  is  able  to  do  it;  they  must  accept  what 
he  offers.  By  remaining  with  their  property  in  territory 
which  he  alone  governs,  they  impliedly,  under  the  laws  of 
war,  accede  to  his  terms;  and  while  they  live  under  his  rule 
and  receive  the  benefits  of  that  law  and  order  which  he  insti- 
tutes and  maintains,  they  owe  to  him  that  transient  duty  of 
obedience  which  is  called  "temporary  allegiance." 

Nothing  could  be  more  disastrous  to  the  interests  of  inhab- 
itants of  occupied  territory  than  for  them  to  be  made  to  be- 
lieve that  the  invader  is  there  by  sufferance,  and  has  no  rights 
which  they  are  boimd  to  respect.  They  are  not  in  a  position 
to  assume  such  lofty  ground.  To  do  it  is  simply  to  court 
disaster.  Of  this  they  may  rest  assured:  the  military  gov- 
ernment, if  need  be,  will  enforce  obedience.  If  the  people — 
their  regular  government  evicted — proceed  toward  the  in- 
vader as  if  he  were  a  mere  intruder,  whom  they  may  treat 
with  contumely,  they  will  probably  have  cause  to  regret  their 
presumption.  It  may  cost  millions  of  dollars,  the  devasta- 
tion of  fair  provinces,  the  destruction  of  flourishing  towns, 
and  many  hundred  lives  to  bring  them  to  a  realizing  sense  of 
their  error,  but  the  experience  will  be  theirs,  and  one  which 
they  will  not  wish  repeated.  What  evidence  the  incidents  of 
the  Franco-German  War  of  1870-71  bear  to  this  fact!  Yet, 
that  was  the  "contest  of  force"  conducted  between  the  most 
refined,  enlightened  nations.  All  this  is  emphasized  by  Rus- 
sian experiences  on  the  soil  of  Turkey,  following  immediately 
after  a  conference  assembled  at  the  solicitation  of  the  Czar 
with  a  view  to  softening  the  inevitable  hardships  of  war,  and 
which,  as  hereafter  narrated,  recommended  an  international 
code  for  that  purpose  distinguished  for  its  precepts  of  mercy 
and  good -will. 

Equally  unfortunate  in  its  effects,  if  it  be  acted  upon,  is 
the  proposition  that  the  vanquished  State  retains,  with  refer- 
ence to  inhabitants  of  occupied  territory,  the  rights  of  sov- 


INTRODUCTION.  25 

ereignty  in  all  its  plenitude,  and  that  they  must  obey  its  man- 
dates. This  is  purely  chimerical.  They  are  under  no  ob- 
ligations to  recognize  the  authority  of  a  State  which  can 
only  command  their  services  -without  the  power  to  protect 
them  if  they  obey.  To  do  this  is  but  to  invite  severest  meas- 
ures of  repression  on  the  part  of  the  military  governmental 
authorities. 

It  is  not  proposed  in  this  treatise  to  sanction  doctrines  so 
fraught  with  melancholy  results  to  those  Vvho  are  so  unfortu- 
nately situated  as  to  be  for  the  time  subjected  to  the  enemy's 
arms. 

6.  During  the  last  half-century  there  has  been  a  great  rev- 
olution in  weapons  of  war.     This  has  not  been  confined  to 
the  arms  of  the  soldier,  but  extends  to  the  armament  of  works, 
the  use  of  mines,  torpedoes,  and  other  death-dealing  inven- 
tions.    While  attention  has  been  directed  to  this  branch  of 
the  miltary  art,  another  and  agreeable  spectacle  has  been  pre- 
sented in  efforts  of  humane   and   learned   men,  soldiers  and 
others,  to  reduce  the  laws  of  war  to  a  concise  code,  that  they 
may  be  better  and  more  generally  understood;  at  the  same 
time  inculcating  and  nurturing  a  sentiment  favorable  to  re- 
ducing  sufferings   engendered   by   war   as   much   as   possible. 
Those  who  have  been  conspicuous  in  these  labors  have  not 
belonged  to  a  class  who  indulge  Utopian  dreams  of  general 
and  perpetual  peace.     They  recognize  the  fact  that,  until  hu- 
man nature  changes,  wars  will  be.      Their  efforts  have  been 
directed  to  the  creation  of  an  universal  public  opinion  favor- 
able to  minimizing  the  evils  which  attend  the  prosecution  of 
hostilities. 

The  main  instrumentality  through  which  it  has  been  at- 
tempted thus  to  advance  the  cause  of  humanity  has  been 
conventions  of  an  international  character  in  whose  delibera- 
tions delegates  from  a  large  number  of  States  have  taken  part. 
The  declaration  of  Paris  of  1856  may  be  taken  to  have  given 
the  first  impulse  toward  such  concerted  action.  Then  came 
the  Geneva  Conventions  of   1864  and    1868,   respectively,  in 


26  MILITARY    GOVERNMENT    AND    MARTIAL   I,AW. 

the  proceedings  of  which  twenty-three  States  signified  their 
acquiescence,  and  which  considered  particularly  the  ameliora- 
tion of  the  condition  of  the  sick  and  wounded  and  protecting 
those  who  administer  to  their  welfare.  Next  in  order  was  the 
St.  Petersburg  Convention  of  1868,  participated  in  by  seven- 
teen States,  and  which  resulted  in  an  agreement  not  to 
use,  as  between  the  contracting  powers,  an  explosive  bullet 
below  400  grammes  weight  or  loaded  with  fulminate  or 
inflammable  material.  Then  followed  the  Brussels  Confer- 
ence of  1874,  which  indirectly  resulted  from  the  efforts  of 
certain  influential  persons  to  have  some  general  understanding 
entered  into  which  would  secure  prisoners  of  war  better  treat- 
ment. But  the  conference,  brought  about  finally  through 
the  efforts  of  the  Czar,  went  far  beyond  this  and  promulgated 
an  "international  declaration"  setting  forth  the  principles 
upon  which  wars  between  nations  should  be  conducted.  In 
1899  the  Flague  Conference  was  convened.  The  proposition 
was  initiated  by  the  C/ar.  It  looked  in  the  direction  of  sub- 
stituting arbitration  where  before  war  might  have  resulted 
from  certain  situations.  It  also  succinctly  and  very  clearly 
promulgated  many  of  the  laws  and  usages  of  war,  which  were 
signed  by  the  representatives  of  the  more  important  powers, 
and  afterwards  confirmed  by  the  proper  department  of  the 
latter,  thus  becoming  obligatory.^ 

7.  These  codes  followed  the  plan  marked  out  in  "Instruc- 
tions for  Armies  in  the  Field,"  prepared  by  Dr.  Francis  I.ieber 
and  published  in  April,  1863,  by  the  War  Department,  for  the 
guidance  of  the  land  forces  of  the  United  States,  being  the 
first,  as  it  has  proved  the  most  successful,  effort  to  embrace 
in  small  compass  the  general  principles  underlying  thejpresent 
laws  and  customs  of  war,  honoring  alike  the  political  philoso- 
pher who  digested  and  so  admirably  arranged,  and  the  military 
service  which  amidst  the  passions  of  civil  war  adopted,  them. 
In  a  particular  manner  they  embody  the  fundamental  rules 

I.  Appendix  II. 


INTRODUCTION.  27 

by  which  commanders  of  armies,  departments,  and  districts 
are  to  be  guided  in  their  treatment  of  inhabitants  subjected 
to  military  government.^ 

The  "Instructions"  were  obUgatory  upon  the  Army  of  the 
United  States  only.  In  this  respect  their  sphere  was  more 
circumscribed  than  either  that  of  the  Brussels  code  or  of  the 
Hague  Conference,  and  which  were  international  in  aspiration. 
In  another  respect  they  were  more  comprehensive,  for  they 
were  applicable  not  only  to  wars  between  independent  States, 
but  to  civil  wars  as  well,  while  the  others  referred  to  the  former 
only.  The  circumstance  of  this  dissimilarity  is  accounted  for 
by  the  diverse  experience  of  the  nations  promulgating  the  re- 
spective codes. 

8.  In  one  particular  the  "Instructions"  have,  it  is  believed, 
an  advantage  over  all  succeeding  codes,  which,  without  ex- 
ception, have  been  based  upon  them.  The  former  are  wholly 
practical,  while  it  is  doubtful  if  more  recent  codes  in  all  re- 
spects are.  This  also  is  easily  accounted  for.  The  "Instruc- 
tions" w^ere  adopted  in  the  midst  of  a  great  war,  the  result  of 
which  none  could  foresee.  Before  being  adopted  they  were 
examined  by  a  board  of  eminent  military  officers  who  not 
only  understood  what  the  laws  of  war  were  theoretically,  but 
from  experience  in  the  field  knew  their  applicability  and  how 
they  were  to  be  carried  into  execution.  Moreover,  they  were 
adopted  under  grave  official  responsibility,  the  officers  who 
sanctioned  having  to  use  them  during  the  continuance  of  the 
war  as  their  rule  of  conduct  in  dealing  with  the  enemy.  Ex- 
amination will  evince  that  they  bear  the  deep  impress  of  this 
official  responsibility.  The  jdstness  of  this  statement  is  not 
impaired  by  the  fact  that  the  "Instructions"  were  adopted 
precisely  as  submitted  to  the  board;  this  circumstance  only 
furnishes  additional  evidence  of  the  thoroughness  with  which 
they  had  been  prepared  by  the  author.  While  they  attempt 
to  put  into  official  shape  the  humanity  of  the  land,  they  do 

1    Appendix  II. 


28  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

not  deprive  a  belligerent  of  all  fair  and  reasonable  means  of 
successfully  carrying  on  war.  His  hands  are  not  tied  by 
theories  regarding  the  rights  of  the  other  party  belligerent, 
or  of  the  inhabitants  of  territory  militarily  occupied.  Yet 
throughout  it  is  inculcated  that  the  law  of  war  imposes  many 
restrictions  on  the  modes  formerly  adopted  to  injure  the 
enemy  based  on  principles  of  justice,  faith,  and  honor.  It 
confidently  may  be  aihrmed  that  the  "Instructions"  form  a 
convenient  and  useful  code  of  the  essential  laws  of  war  on 
land;  and,  imbued  as  they  are  with  the  milder  precepts  of 
modern  warfare,  they  may  be  expected  successfully  to  with- 
stand the  mutations  of  time  until  at  least  the  present  moral 
sense  of  man  has  taken  a  long  step  in  advance.  The  predic- 
tion here  is  ventured  that,  modified  so  as  to  conform  to  stat- 
utes and  the  agreements  of  international  conventions,  they 
will  continue  to  be  the  rule  of  hostile  nations  when  crimina- 
tions and  recriminations  are  being  indulged  because  of  infrac- 
tions of  these  later  codes.  To  attempt  by  such  agreements 
unreasonably  to  restrain  the  actions  of  a  belligerent  regarding 
coercive  measures  to  be  used  against  the  enemy  is  only  to  in- 
vite their  utter  disregard  when  nations  join  in  deadly  strife. 
The  world  has  to-day  a  striking  illustration  of  this.  Both 
Japan  and  Russia  are  parties  to  the  Hague  code.  Yet  since 
the  Russo-Japanese  War  broke  out  the  other  signatories  have 
had  their  attention  formally  called  to  the  disregard  by  one  of 
the  belligerents  of  the  provisions  of  that  code. 

9.  On  the  other  hand,  both  the  Brussels  and  the  Hague 
codes,  and  also  that  agreed  upon  in  1880  by  the  Instifut  de 
Droit  International,  which  was  j^ublished  to  the  world  as  the 
best  modern  thought  on  this  subject,  have  the  disadvantage 
of  being  adopted  in  times  of  peace,  when  the  minds  of  men  in 
deahng  with  military  affairs  turn  rather  to  the  ideal  than  the 
practical.  It  is  not  meant  by  this  to  disparage  the  learning, 
abiUty,  and  zeal  of  those  who  digested  these  codes.  In  this 
they  stood  pre-eminent  before  the  world,  and  some  were  sol- 
diers of  great  experience.     The  proceedings  of  these  learned 


INTRODUCTION.  29 

bodies  show,  however,  that  the  propositions  of  each  State 
were  in  greater  or  less  degree  generally  rejected  by  the  others 
as  inadmissible,  and  the  final  result  was  a  compromise  be- 
tween conflicting  interests.  The}'^  may  be  expected  to  share 
the  fate  of  compromises  generally  which  are  without  a  binding 
sanction — be  broken  at  the  convenience  of  the  parties.  The 
great  powers  at  once  divided  upon  the  Brussels  code.  And 
here  it  may  be  observed  that  these  powers  alone  are  of  real 
importance  when  an  international  code  is  to  be  adopted;  if 
they  do  not  make,  they  unmake  them;  yet  in  all  conventions 
and  conferences  having  in  view  the  adoption  of  such  codes, 
the  smaller  States  are  conspicuous  by  the  part  they  take  in 
their  deliberations  and  published  conclusions. 

The  most  striking  feature  of  the  Brussels  Conference  con- 
sisted in  the  manner  in  which  the  smaller  were  arrayed  against 
the  larger  continental  States  upon  some  of  the  most  important 
topics  brought  up  for  discussion,  such  as  the  territorial  limits 
of  military  occupation,  and  the  right  of  the  people  to  rise 
en  masse  either  to  repel  or  drive  out  an  invader. 

There  were,  besides,  many  questions  regarding  the  laws 
of  war  which  the  conference  left  untouched,  as  it  v/as  known 
there  could  be  no  agreement.  Great  Britain  instructed  her 
delegate  to  take  no  part  in  discussions  which  seemed  to  bear 
on  principles  of  international  law  not  already  generally  ac- 
cepted, and  to  oppose  all  debates  on  the  laws  of  maritime 
warfare.  That  government  joined  hands  also  with  the  smaller 
continental  States  in  opposing  everything  which  would  facil- 
itate so-called  aggressive  wars  or  paralyze  the  powers  of  re- 
sistance of  an  invaded  people.  In  truth,  the  Brussels  Con- 
ference and  the  action  of  the  British  Government  relative  to 
the  code  it  promulgated  conclusively  demonstrated  that  those 
nations  who  maintain  large  standing  armies,  and  those  who 
do  not,  are  in  many  important  particulars  deeply  interested 
in  having  different  rules  recognized  as  the  laws  of  war.  How 
long  a  code  adopted  "ander  such  circumstances,  reluctant- 
ly'^ acquiesced   in   by  the   really  great  military  powers  with  a 


30  MILITARY    GOVERNMENT    Ax\D    MARTIAL   LAW. 

knowledge  that  they  may  stretch  its  provisions  when  con- 
venient, or  of  what  efficacy  it  will  prove,  remains  to  be  seen. 
Russia  soon  had  a  self-sought  opportunity  to  put  her  alleged 
generous  views  into  practice,  but  nothing  was  clearly  dis- 
cernible in  her  conduct  of  the  war  of  1877-78  which  would 
have  raised  the  suspicion  that  the  Czar  had  proposed  the 
Brussels  Conference  and  applauded  its  results.  Such,  when 
interests  of  States  intervene,  is  the  difference  sometimes  ob- 
servable between  promise  and  fulfillment.  It  is  an  interesting 
circumstance  that  while  during  the  last  half -century  successive 
Czars  have  stood  forth  initiators  of  international  measures 
looking  to  either  the  obviation  of  wars  or  an  amelioration  of 
their  effects,  no  other  first-class  power  has  been  engaged  during 
that  period  in  so  many  wars  of  great  magnitude  as  Russia. 

10.  In  addition  to  the  "Instructions"  mentioned,  and  the 
general  laws  of  war.  United  States  officers  have  for  their  guid- 
ance many  decisions  of  the  Supreme  Court  upon  the  meaning 
and  scope  of  those  laws.  The  latter  are  regarded  in  all  civil- 
ized countries  as  of  great  weight.  Those  which  arose  out  of 
the  incidents  of  the  Civil  War  are  particularly  valuable,  as 
they  make  clear  much  which  formerly  was  obscure  regarding 
belligerent  rights  and  the  multifarious  duties  of  officers  en- 
forcing military  government.  To  United  States  officers  they 
are  not  only  highly  instructive,  but  they  are  of  binding  effi- 
cacy as  well.  Hence  in  this  treatise  they  are  frequently  re- 
ferred to  and  given  prominence  in  keeping  with  their  import- 
ance, intrinsic  worth,  and  authoritative  character.  It  were 
not  possible,  perhaps,  in  the  decisions  of  any  other  tribunals 
to  find  the  subject  of  the  true  relation  of  all  within  the  sphere 
of  military  occupation  treated  in  so  copious  a  manner,  from 
the  elevated  standpoint  of  judicial  fairness,  as  in  the  published 
opinions  of  the  United  States  Supreme  Court.  They  are  of 
special  importance  in  an  international  view,  and  in  an  Ameri- 
can work  should  receive  every  consideration. 

11.  He  who  attentively  considers  the  past  and  present  of 
the  laws  of  war,  whether  prompted  by  curiosity,  or,  if  a  soldier, 


INTRODUCTION.  3! 

by  a  desire  for  professional  knowledge,  will  have  bis  attention 
arrested  by  the  agreeable  fact,  before  adverted  to,  that  there 
exists  among  civilized  nations  a  widespread  and  steadily 
growing  sentiment  in  favor  of  reducing  to  the  least  practicable 
the  evils  which  war  necessarily  entails.  Nowhere  else  is  its 
growth  healthier  than  in  the  military  profession.  This  senti- 
ment has  a  deep  foundation  in  the  kindlier  feelings  of  human 
nature. 

At  least  this  feeling  has  crystallized  itself  into  a  well- 
defined  proposition — that  neither  enemy  property  nor  life 
shall  be  sacrificed  imless  thereby  the  military  interests  of  the 
belligerent  are  proportionately  subserved;  in  other  words, 
that  parties  belligerent  shall  no  longer  permit  the  useless  en- 
tailment of  suffering  on  the  people  who  inhabit  the  theatre  of 
operations.  In  the  abstract  there  is  nothing  new  in  this 
proposition.  It  has  long  had  a  place  in  the  maxims  of  civil- 
ized warfare.  But  truth  forces  the  confession  that  often  it 
has  been  more  honored  in  the  breach  than  in  the  observance. 
That  which  is  new  about  it  now  is  the  apparent  determination 
on  the  part  of  the  leading  nations  to  make  the  lifeless  theory 
a  living  reality.  The  last  and  highest  development  of  this 
idea  is  in  the  Hague  code,  to  which  reference  has  been  made.^ 

12.  It  will,  however,  be  a  great  mistake  to  imagine  that  this 
benign  rule  of  conduct,  which  in  so  far  as  it  becomes  actively 
operative  detracts  from  the  extreme  rights  of  a  belligerent  in 
enemy  country,  will  ever  be  of  value  if  practical  effect  be  given 
to  the  behef  that  the  people  of  the  occupied  territory  who  have 
this  leniency  shown  them  owe  the  invaders  nothing  in  return 
therefor.  When  they  accept  this  milder  treatment,  they  must 
pursue  toward  their  temporary  ruler  a  course  which,  while  not 
impairing  their  permanent  allegiance  to  the  deposed  sover- 
eignty, will  not  prejudice  the  miUtary  interests  of  those  who 
establish  and  maintain  mihtary  government  over  them. 
They  cannot  in  war  serve  two  masters.     They  must  choose 

I.  Appendix  II. 


32  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

between  the  ousted  and  the  de  facto  government.  If  they 
elect  the  former,  they  must  join  and  cast  their  fortunes  with  it ; 
if  the  latter,  they  must  do  nothing  actively  to  injure  it.  If 
they  do,  all  claim  to  gentle  treatment  by  their  own  act  vanishes. 

Mx\RTIAL  LAW. 

13.  All  military  is  in  one  sense  martial  rule,  for  in  its  essence 
it  is  the  law  of  arms.  Still,  because  of  the  unusual  relation  of 
the  military  to  the  civil  power  when  for  the  time  being  in 
friendly  territory  the  latter  gives  way  to  the  sway  of  the 
former,  it  is  necessary  to  have  some  term  by  which  military 
rule  under  these  circumstances  shall  be  designated.  That 
selected  is  "martial  law."  This  law  is  invoked  as  an  extreme 
measure  which  pressing  necessity  alone  can  justify. 

14.  It  is  not  asserted  that  both  martial  law  and  the  munic- 
ipal law  sub  modo  may  not  be  enforced  over  the  same  territory 
at  the  same  time;  for  where  martial  law  is  instituted  by  leg- 
islative act  there  is  nothing  to  prevent  the  civil  administration 
from  being  retained,  although  the  military  is  m.ade  predom- 
inant, the  limits  of  each  being  defined.  Similarly  the  executive 
officer  who  enforces  martial  law  may  bring  the  civil  power  to 
his  assistance.  The  effect,  however,  of  martial  law  is  either 
to  supersede  the  municipal  law  wholly  or  the  latter  is  retained 
subordinate  to  the  former. 

15.  There  are  disagreeable  associations  connected  with  the 
term  "miartial  law"  which,  as  it  is  now  understood  and  used  in 
this  treatise,  should  not  attach  to  it.  This  arises  from  the 
fact  that  in  the  earlier  days  of  English  history  and  down  into 
the  Stuart  dynasty  resort  was  had  to  irresponsible  power  by 
the  sovereign,  sometimes  with,  oftener  without,  justification; 
and  this  assumed  prerogative,  which  because  it  was  uncon- 
trolled could  not  fail  to  be  abused,  was  called  "martial  law." 
If  its  bad  features  were  eliminated,  retaining  the  good,  none 
except  evil-doers  at  whom  its  strong  right  arm  was  directed 
ever  would  have  exclaimed  against  it;  and  this  result  govern-^ 


INTRODUCTION. 


33 


merits,  in  later  times,  have  sought  to  effect.  This,  not  by 
denying  that  it  ever  can  be  enforced  in  free  governments, 
when  the  experience  of  all  proves  the  contrary  to  be  true,  but 
by  regulating  its  exercise. 

1 6.  Happily  peace  and  good  order  is  the  rule  in  enlightened 
States.  But  history  teaches  that  this  desirable  condition  of 
society  is  liable  at  uncertain  periods  to  be  violently  disturbed. 
In  all  governments  of  laws,  as  contradistinguished  from  Asiatic 
despotisms,  it  is  the  practice  to  strengthen  the  arm  of  munic- 
ipal authority  sufficiently  to  suppress  ordinary  outbreaks  oi 
commotions.  When  the  exigency  rises  to  a  higher  point  of 
disturbance  some  other  power  must  be  called  in.  And  no 
government  has  existed  for  any  length  of  time  without  the 
necessity  arising  for  using  this  reserved  power,  which  in  every 
case  is  the  military.  In  some  States  this  force  of  last  resort 
acts  or  is  supposed  to  act  in  conjunction  with  or  in  subordina- 
tion to  che  civil  power,  although  the  fact  generally  is  the  re- 
verse; in  others  it  is  brought  in  requisidon  by  the  executive 
power — charged  with  the  duty  of  seeing  that  the  laws  are 
faithfully  executed — without  the  sanction  of  positive  law; 
while  in  others  still — when  it  is  thought  that  the  public  weal 
would  best  be  subserved  thereby — the  emergencies  justifying 
martial  law  are  anticipated  and  provision  is  made  by  statute 
for  superseding  on  such  occasions  the  civil  by  the  military 
power.  The  first  two  cases  are  often  illustrated  in  the  same 
State;  for  the  military  acting  in  strict  subordination  to  the 
civil  administration  has  seldom  if  ever  been  found  to  be  suffi- 
ciently energetic  to  meet  great  crises  in  municipal  and  gov- 
ernmental affairs  when  they  took  the  form  of  grave  disorder, 
insurrection,  or  rebellion;  and  the  result  generally  has  been 
that  the  military  commander  has  been  obliged  to  take  the 
reins  of  authority  in  his  own  hands.  Both  English  and  Amer- 
ican experience  furnish  numerous  illustrations  of  this.  On 
the  other  hand  it  is  on  the  continent  of  Europe  that  martial 
law — there  called  "state  of  siege" — has  been  provided  for  by 

3- 


34  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

laws  which  specify  under  what  particular  circumstances  the 
military  shall  supplant  the  civil  power. 

17.  Which  of  these  two  distinct  policies  is  the  wiser ;  whether 
to  permit  martial  law  to  spring  forth  the  creature  of  accident, 
as  generally  has  been  the  case  in  Great  Britain  and  the  United 
States,  or  whether  it  be  the  part  of  wisdom  to  accept  the  occa- 
sional happening  of  that  imperious  necessity  which  alone  jus- 
tifies resort  to  martial  law  as  an  established  fact  based  on 
experience  and  provide  for  its  regulation  by  law,  is  for  the 
legislature  to  decide.  The  soldier,  however,  is  not  in  this 
instance  concerned  with  what  the  law  ought  to  be,  but  with 
what  it  is.  He  has  in  either  case  only  to  act  when  the  emer- 
gency arises.  He  inquires  only  regarding  his  responsibilities 
and  the  duties  devolving  upon  him;  that  he  may  assume  the 
one,  and  faithfully,  intelligently,  and  impartially  perform  the 
other. 

18.  Every  independent  State  possesses  the  power  of  self- 
preservation.  The  power  is  inherent  in  the  Stace.  Neither 
State  nor  society  could  exist  without  it.  If  attacked,  each 
has  a  right  to  defend  itself.  Nor  does  it  signify  from  what  di- 
rection the  danger  comes  or  the  cause  thereof.  It  is  sufficient 
that,  in  fact,  a  necessity  exists  for  appealing  to  a  power  stronger 
than  the  municipal  to  meet  an  emergency  with  which  the  latter 
can  not  deal.     Then  it  is  that  martial  law  is  brought  into  play. 

19.  If  it  be  a  case  of  internal  discord,  the  State  at  such  times 
must  choose  between  anarchy  until  the  public  distemper  has 
worn  off,  or,  sacrificing  temporarily  certain  civil  rights,  invoke 
the  aid  of  the  military  to  bear  down  opposition  to  good  order 
and  re-establish  the  majesty  of  the  law.  If  the  danger  come 
from  without,  it  is  one  which  municipal  law  never  was  intended 
to  meet;  martial  law  in  the  threatened  district  then  may  be- 
come not  a  question  of  internal  polity,  but  of  military  necessity. 

On  principle  it  can  make  no  difference  whether  the  danger 
comes  from  without  or  within.  Martial  law  properly  may  be 
instituted  to  meet  either. 


INTRODUCTION.  35 

20.  It  may  be  asked,  Is  not  municipal  authority  always 
equal  to  such  emergencies?  We  have  only  to  point  to  the  ex- 
perience of  all  stable  governments  to  show  that  it  is  not.  If 
the  civil  administration  alone  be  depended  upon,  its  powers 
must  be  stretched  beyond  what  was  contemplated  in  the  or- 
ganization of  the  government.  In  this  there  is  far  more  danger 
than  in  the  alternative  course  of  calling  in  military  assistance, 
for  if  there  be  one  principle  above  all  others  important  to  the 
well-being  and  preservation  of  society,  it  is  that  civil  powers 
shall  not  be  usurped  under  color  of  legal  procedure. 

It  being  admitted  that  emergencies  sometimes  confront 
the  civil  power  with  which  it  can  not  successfully  contend, 
the  interests  of  society  are  not  subserved  by  denying  that 
martial  law  ever  can  be  exercised,  but  by  enforcing  it  and  then 
holding  to  accountability,  according  to  the  rule  before  men- 
tioned, those  who  then  may  be  entrusted  with  the  reins  of 
military  authority. 

21.  That  martial  law  lawfully  may  be  instituted  only  in 
case  of  justifying  necessity  is  conceded.  The  inroads  then 
made  on  the  rights  of  the  people  under  municipal  law  are 
such  that  an  emergency  alone  warrants.  There  are,  however, 
two  important  preliminary  questions  involved :  first,  What  cir- 
cumstances constitute  the  necessity?  second,  Who,  the  neces- 
sity having  arisen,  has  a  right  to  invoke  the  martial-law 
power? 

22.  The  answer  to  the  first  question  will  depend  upon  the 
facts  of  each  particular  case.  That  which  would  be  permis- 
sible under  some  would  not  necessarily  be  so  under  other 
conditions.  All  that  can  be  done  is  to  lay  down  some  genera] 
rules  for  the  guidance  of  those  upon  whom  responsibility  rests. 
Efforts  at  formulating  the  precise  circumstances  under  which 
martial  law  may  be  invoked  have  proved  unsatisfactory  for 
the  reason  that  such  are  just  the  times  when  there  should 
be  exercised  while  a  reasonable,  yet  a  wide,  discretion.  Even 
the  French  statutes  providing  for' the  "state  of  siege"  are 
general  in  their  terms,  reposing  a  confidence  in  the  judgment 


36  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

of  the  commander  who  has  actually  at  any  one  spot  to  enforce 
martial  law.  i  In  Part  II.  of  this  work  an  effort  has  been  made 
to  elucidate  this  subject. 

23.  Upon  the  second  question  authorities  are  divided. 
One  class  denies  that  Congress  lawfully  may  establish  martial 
law;  the  other  asserts  that  such  authority  constitutionally 
may  be  exercised.  So  far  as  the  national  authority  is  con- 
cerned, the  first  class  maintains  that  the  enforcement  of  martial 
law  and  its  inauguration  under  any  circumstances  is  a  matter 
exclusively  within  the  province  of  the  executive  branch  of 
the  government;  the  second,  while  conceding  this  authority 
to  the  executive,  asserts  that  it  may  be  matter  of  legislative 
cognizance  as  well.  In  this,  as  with  many  other  matters  of 
governmental  polity,  there  is  room  for  and  there  exists  honest 
differences  of  opinion.  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  spreid  of  a  conflagr  .tion  or  to  stamp 
out  the  germs  of  contagious  disease,  leaving  the  owner  remedi- 
less as  against  those  who  interposed  in  behalf  of  the  public 
welf -re.  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  arrest  of  suspected  individuals  and  holding  them  in  cus- 
tody until  the  enemy  is  repelled  or  the  rebellion  suppressed, 
or  they  m  ly  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  Kw.  The  exercise  of  this  authority  must  not  be  taken 
against  the  law,  but  under  it.  On  the  face  of  things  acts  like 
those  mencioned  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  irt 
view  of  the  public  safety.  And  he  takes  his  measures,  as 
before  remarked,  under  a  sense  of  possible  accountability 
before  the  restored  civil  cotirts. 

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  nacure  of  martial  law  has  sub- 
stantially been  taken.  1  "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, 

1.  Pp.  954-55.  Vol.  2  ,'  --       •■  _      _  i^  J 


34(>624 


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  remarking  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  property  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 
constHutional. 

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. 


INTRODUCTION. 


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  pursuant  to  martial  law  authority.  5 
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  usmg  force  follow  directly  from 
the  ideas  of  law  and  government.  The  Constitution  has  not 
left  this  matter  in  doubt.  It  states  that  the  President  "shell 
take  care  that  the  laws  be  faithfully  executed. "6  Of  these 
laws  the  Constitution  is  supreme.?  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.  11  Wallace,  268;  ibid,,  331;  18  Wallace,  510;  95  U.  S.,  438;  106 
ibid.,  315;  110  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  MILITARY  GOVERNMENT  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  corpus 
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  carrying  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  retail  the  terms  of  praise  in  which  the 
Supreme  Court  referred  to  the  provisions  of  the  law  thus  in- 
veighed against.  In  Beard  v.  Burts  the  defendant  had  shielded 
himself  behind  the  4ch  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,  457  et  seq. 


TNTRODUCTION.  4I 

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  court  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  Civil  War  and  the 
language  of  the  Supreme  Court  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,  2 1 ;  Hare,  Consti- 
tutional Law,  Vol.  2,  p.  971.  4.  Hare,  Constitutional  Law,  Vol.  2,  p.  970 
el  s'^q. 


42  MILITARY  GOVERXMENT  AND  MARTIAL  LAW. 

The  reasoning  of  the  Supreme  Court  in  Luther  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  natur*:;  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  remciked, 
"that  the  power  to  suspend  the  writ  c>f  habeas  corpus  and  that 
of  proclaiming  martial  law  include  one  another.  *  *  The 
right  to  exercise  the  one  power  implies  Jhe  right  to  exercise 
the  other."  2 

In  the  Reconstruction  Acts  of  1867  Congress  exercised  the 
martial-law  power.  The  authority  was  sustained  by  che  Su- 
preme Court  in  a  number  of  decisions.  3     In  Texas  v.  White  it 

I.  7  Howard,  45.  2.  9  Aiiier.  Law  Rejasler,  507-8;  Ex  parte  ¥ie\d, 
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  'S  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  d,  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  nature  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  effect  the  granted  powers.  The 
measures  to  be  taken  in  carrying  on  war  and  to  suppress  in- 
surrection arc  not  enumerated.  Thv  decision  of  all  '^uch 
questions  rests  wholly  with  those  to  whom  the  substantial 
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  MILITARY  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 — the  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  Executive 
Department  without  previous  legislative  sanction. 

I.   II  Wallace,  506;  12  Wallace,  534.     2.   12  Wallace,  544. 


PART  I. 

MILITARY   GOVERNMENT. 


CHAPTER  1. 
Power  to  Declare  War. 

1.  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  i_t_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 
i*  an  incident,  as  well  as  that  of  authorizing  retaliations,  re- 

4.S 


46  MILITARY  GOVERNMENT  AND  MARTIAL  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  Staces,  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  combined  would  be  powerless 
to  preserve  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  ours  in  a  remote  sea.  Several  engagements  oc- 
curred between  our  own  ships  and  Jiose  of  France  in  the  latter 
part  of  the  eighteenth  c  mtury ;  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  announced  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 

I.  Woolsey,  Sec.  125.  2.  Dana's  Wheaton.  p.  89,  Sec.  61.  3.  See 
Cobbett,  p.  iioet  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   DECLAEE  WAE.  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- 
smrection  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  Iq  w,  may 
be  thus  summarily  vStated:  "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."  1 

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 

I.  Prize  Cases,  2  Black,  666.     2.  Sec.  3,  Art.  2,  Constitution  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  foreign  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  INIexican  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  belUgerent 
rights.  The  same  rule  governs  if  the  attack  comes  from  a 
foreign  foe. 

I.  2  Black,  668.  ~ 


POWER   TO   DECLAEE   WAB.  49 

These  principles  have  been  settled  by  the  Supreme  Court 
of  the  United  Staces.  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  all  oth- 
ers necessary  to  render  those  conferred  effective  has  already 
been  adverted  to.  Constitutional  authority  is  not  given  in 
vain.  Hamil  ton  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  ^re  infinite, 
and  for  this  reason  no  constitutional  shackles  can  wisely  be 
imposed  on  the  power  to  which  the  care  of  it  is  committed. 
*  *  *  f  his  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  efficacy — 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  v:  White,  7  Wallace,  700.     2.  Fed 
eralist,  23,  pp.  95-6. 


50  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

Chief  Justice  Marshall,  speaking  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  out  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  Constitution,  does  not  import  an  absolute  physical  ne- 
cessity, so  strong  that  one  can  not  exist  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  intention,  are 
all  to  be  taken  into  view.  The  pcwers  of  government  are 
giveii  for  Jie  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  n  irrow  limits  as  should  not 
leave  it  in  the  power  of  Congress  to  adopt  any  which  might  be 
appropriate  and  conducive  to  the  end,  would  be  most  unwise 
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- 
latu'-e  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 -y.  Hunter's  Lessee,  i  Wheaton,  305. 


POWER   TO   DECLAEE    WAR.  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  that  they  bestowed  upon  che  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  che  laws  of  the  Union,  suppress 
insurrection,  and  repel  invasions;  and  on  military  principles 
invasion  may  be  repelled,  as  was  illustrated  by  our  experience 
in  the  war  of  18 12,  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,  5  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  constitutional  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.  1,  Constitution 


52  MILITARY  GOVERNMENT  AND  MARTIAL  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.  liluntschli,  I,  Sec.  40. 


CHAPTER  11. 
Right  to  Establish  Military  Government. 

10.  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 militery  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.  c^a; />ar<e  Milligan,  4  Wallace,  142.  2.  Maine,  p  179  3.  Whiting, 
loth  Ed.,  272. 

53 


54  MILITAEY  GOVEENMENT  AND  MAETIAL  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  should  be  the  supreme  law.  Con- 
stitutional and  civil  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  state 
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  hellica  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 
om-  own  territory  permanentl}^  occupied  by  the  enemy.  Cas- 
tine,  Maine,  was  occupied  by  the  British  September  ist,  18 14, 
and  retained  by  them  until  after  the  creaty  of  peace,  Feb- 
ruary, 1 8 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  v  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, 
110  U.  S.,  648;  Coleman  v.  Tennessee,  97  U.  S.,  p.  517.  6.  U.  S.  v.  Rice^ 
4  Wheaton,  246. 


RIGHT    TO    ESTABLISH    MILITARY    GOVERNMENT.  55 

14.  As  commander-ill-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  Tampico,  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  lO  the  fact  that 
California,  or  the  port  of  San  Francisco,  had  been  conciuered 
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  7;.  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 1:0  the  law  of  arms  and  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  his  possession  during  his  military  occupation.  1.  is 
a  powe^'  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,  acting  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.  Farris,  5  Coldwell,  426 


RIGHT   TO    ESTABLISH    MILITARY    GOVERNMENT.  57 

and  that  their  condition  shall  remain  as  eligible  as  is  compat- 
ible with  the  objects  of  the  conquest.  1 

When  in  the  House  of  Commons,  May,  1851,  it  was  said 
that  martial  law  had  been  established  by  the  British  com- 
mander in  18 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  r,  1851,  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  i:o  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. 

18.  In  Thorington  v.  Smith  the  Supreme  Court  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  governmenis  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  :he  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  ^.dminis- 
tered  directly  by  military  authority,  but  they  may  be  admin- 

I.  Johnson  v.  Mcintosh,  8  Wallace,  589 


58  MILITABY  GOVERNMENT  AND  MARTIAL  LAW. 

istered,  also,  by  civil  authority,  supported  more  or  less  direc-lly 
by  military  force. i  By  "rightful  gov'^ernm^ni"  is  here  meant 
that  to  which  the  permanent  allegiance  of  the  people  is  due. 

Such,  then,  is  the  puthonty,  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  }X)wer  to  establish  such  g®vernments 
within  States  or  districts  occupied  by  rebels  treated  ^s  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  legitimate  authoriliy.  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  occupying,  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.  1  In  carrying  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  se^l  on  his  success,  and  it 

I.  Texas  v.  White,  7  Wallace,  730.  2.  Coleman  i;  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  which  the  rebellion  interrupts,  the  right 
to  employ  force  for  the  purpose  indicated  might  be  thought 
to  cease  with  the  suppression  of  the  rehellion.  It  must  still, 
however,  be  in  the  discretion  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  ground  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  protecced,  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  insiwrectionary  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    ESTABLISH    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. 

1-  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.  1  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  our  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. 

differed.  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 
thereafter  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   GOVERNMENT.  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.  1  We  have  had  the  same  experiences 
in  Cuba,  Porto  Rico,  and  the  Philippines. 


Leitensdorfer  v.  Webl),  20  Howard,  186. 


CHAPTER  HI. 
Tp:mporary  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  natural- 
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. 

6i 


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  supremacy,  wisdom,  goodness,  and  power  are 
the  most  likely  to  be  found."  1 

28.  As  government  is  based  on  the  necessities  of  society, 
affording  the  only  practicable  means  by  which  the  rights  of  its 
members  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  MILITAKY  GOVERNMENT  AND  MARTIAL  LAW. 

tionary,  changeful  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  characceristic,  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  th?t  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  ic 
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  stabiliiy — 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    OF   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. 

31.  By  the  English  law  it  is  high  treason  to  compass  or 
imagine  the  death  of  the  king,  his  lady  the  queen,  or  their 
eldest  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 
other  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  usurpers,  still,  treasons 
committed  against  Henry  VI.  were  punished  under  Edward 
IV.  By  a  subsequent  scatute  all  persons  who,  in  defense  of 
the  king  for  the  time  being,  w?ge  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  MILITAEY  GOVERNMENT  AND  MARTIAL  LAW. 

of  mutuality  c^f  allegiance  and  protection.  In  this  regard 
mili+ary  government  is  on  the  same  fooiing  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,  i 

I.   182  U.  S.  Reports,  p.  i  et  ieq. 

Note. — Mr.  Hall  dissents  from  the  view  that  mihtary  government 
gives  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- 
gagement 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 


I 


TEMPORARY    ALLEGIANCE   OF   INHABITANTS.  69 

the  condition  that,  and  so  long  as,  they  obey  the  commands  which  he 
imposes  imder  the  guidance  of  custom."  He  remarks  that  recent  writers 
adopt  the  view  that  the  acts  which  are  permitted  to  a  beUigerent  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.) 

The  learned  writer  in  this  connection  calls  attention  to  the  significant 
fact  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  inhabitartn  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  imphedly  covenant 
that  they  will  not  pursue  a  line  of  conduct  or  entei  into  miHtary  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  miHtary  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  sacrifice 
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.  3c,  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  pares  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  quiet  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  Tyler  v.  Defrees.     "We  do  not  be- 

I.  Whiting,  loth  Ed.,  p.  262. 

70 


TERRTTORIAL   EXTENT.  7 1 

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."  1 

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- 
icy  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  dii,     Oj" 
trict  left  without  troops  ought  nevertheless  to  be  considered     \ 
as  occupied,  and  all  risings  there  should  be  severely  repressed.       j 

The  English  took  a  different  view  of  the  subject — that  / 
government  holding,  in  brief,  that,  to  be  militarily  occupied,  / 
a  territorv  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  dut  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  contentionjyf_a  powerjiaving  a  comparatively 
small  standing  army,  and  whose  policy  it  is  to  encourage  so- 

I.    II  Wallace,  331,  345. 


72  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

called  patriotic  risingg-Qf  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  niust  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  Manchtu-ia  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. 


1.  Woolsey,  Sec.   142;  Maine,  p.   178;  Manual,  p.  314.     2.  See  Ap- 
pendix II.     3.  American  Instructions,  Sec    i,  clause  i. 


TERRITORIAL   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  che  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 
mucual  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  1 


74  MILITARY  GOVERNMENT  AND  MARTIAL  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  submitted 
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  excent  of  military  government  can  not 
be  greater  than  that  of  conquest,  and  generally  will  be  coin- 
cident with  it.  Its  basis  being  overpowering  force,  ics  ability 
to  exercise  that  force  rnd  the  extent  to  which  that  ability  is 
recognized  by  the  people  of  the  disttict  occupied  determine 
the  limits  of  its  authority.  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 

I.  Maine,  p.  178. 


t 


TEP.RITORIAL   EXTENT.  75 

of   the  conqueror  so  long  as   ne  ie.:anis   the   possession   and 
government.  1 

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 
generfl  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  national  authority,  and  recognizes,  to  some 
extent,  the  conditioiis  ancPresponsibilities  of  national  citi- 
zenship." 3 

1.  9  Cranch,    195;  Amer.   Ins.  Co.  v.  Canter,    i  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 

f-  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.   U.  S.  V.  Rice,  4  Wheaton,  253.     2.  Vol.  i,  p.  144. 


TERRITORIAL   EXTENT.  77 

territory  as  refuses  to  submit  or  to  recognize  the  authority 
of  the  conqueror,  and  is  not  forcibIy^occupied~by~him,  can  not 
be  regarded  as  under  his  control  or  within  the  limits  of  his 

\     conquest;  and  he  therefore  can  not  pretend  to  govern  it  or 

^  to  claim  the   temporary  alle^ance  of  its  inhabitants,   or  in 

any  way  to  divert  or  restrict  its  intercourse  with  neutrals.     It 

""^^Temains  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,  i  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_onlv  whilg^the  victor  maintains-the 
exclusive  possession  of_the  conquered_country.  2 

44.  The  fundamental  rule  that  to  render  military  goyern- 
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  vSpain  upon  his  brother's  brow  in  1808.  The  Spanish 
people  repudiated  the  measure  en  masse,  and  no  sacrifice 
seemed  to  be  too  great  jn  manifestin£_their_displeasure.  The 
incidents  of  the  ensuing  war  show  how  really  formidable  guer- 
rilla tactics  may  become  when  properly  utilized  against  the 
best  Qf_:troo£S^  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  must,  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- 


i 


TERRITOEIAL   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  lit  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,  101  U.  S.,  pp.  617,  618;  Planters'  Bank  v.  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  Militarily  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  by  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.  v.  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  will  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  18 12,  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  MILITARY    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  boimd  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.  1 

52  The  case  of  Fleming  ■:;.  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  Scates  may 
extend  its  boundaries  by  conquest  or  treat)'  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  MIIvlTARY    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  limits  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.i 
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 

I.  9  Howard,  615-16.      2.   16  Howard,    191-92.      3.  Prize  Cases,  2 
Black's  Reports,  270. 


i 


TERRITORY    MILITARILY    OCCLTPIED,    ENEMY   TERRITORY.      85 

his  authority  as  commander-in-chief,  and  his  constitutional 
obUgations  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.  Bruffy,  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. 

understood;  that  though  the  late  war  [RebelHon  of  1861-65] 
wes  not  between  independent  nations,  but  between  different 
portions  of  the  same  nation,  5^et,  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  w?-s  chus  taken  out  of  hostile  possession. 
But,  until  the  power  of  the  rebellion  was  broken,  its  armies 
captured  or  dispersed,  and  national  supremacy  rendered  ev^ery- 
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  territory,  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  regidations 
of  military  government  over  conquered  provinces,  and  p  irtly 
to  the  sovereign  right  of  recalling  revolted  subjects  to  their  al- 
legiance. All  intercourse  with  the  revolted  territory  was  inter- 
dicted or  conducted  only  under  the  laws  of  war,  as  modified  by 
statutes  enacted  puisuant  to  the  same  policy.  3 

I.  97  U.  S.,  p.  517.  2.  Lamar  v.  Browne,  92  U.  S.,  195.  3.  Procla- 
mations, 19  April,  27  April,  10  May,  16  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  ag?inst  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  che  Parliament  of  Great 
Britain,  have  become  part  of  the  dominion  of  the  Crown.  No 
other  act  than  that  of  conquest,  when  Che  avowed  object  is 
that  of  annexation,  is,  under  English  If  w,  requisite  to  this  end. 
Submission  to  the  King's  authority  under  such  circumstances 
makes  the  inhabitants  his  subjects.  The  territory  is  no  longer 
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,  186.S,  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.  345,  Danas' 
Notes,  169;    2  Wallace,  271. 


I 


,  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  official 
notification  was  received  by  the  military  governor  of  the  rat- 
ification of  the  treaty  of  peace.  1 

59.  In  De  Lima  v.  Bidwell2  the  Supreme  Court  of  the 
United  States  held  that  goods  imported  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,  4  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. 

So 


90  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.  n  American  Law  Review,  p.  419. 
5.  J.  Q.  Adams,  House  of  Representatives,  April  14-15,  1842. 


i 


EFFECT  OF  OCCUPATION  ON  LOCAL  ADMINISTRATION.   91 

of  the  President  are  held  responsible  for  the  conduct  and  suc- 
cess of  military  movements.  As  Congress  has  power  to  de- 
clare war  and  raise  and  support  armies,  it  must  have  power 
to  provide  for  carrying  on  war  with  vigor.  Having  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  Cub?,  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.  3S4,  409,  410,  523;  Vol. 
23,  pp.  129,  427,  226;  Vol.  20,  p.  656;  Neel)'  v.  Henkle,  loo  U.  S. 
Reports,  120;  Magoon,  Civil  Government,  pp.  461,  481,  526,  584,  595,  603. 
2.  Magoon,  Civil  Government,  pp.  372-73.  3.  Coleman  v  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  the  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  che 
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 occurred  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- 
m  trily  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.  Thesfe,  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  presciibed  the  reciprocal  rights, 
duties,  r-nd  obligpaons  of  go\ernment  i.nd  its  citizens.  4  As 
the  State  has  n  ^t  been  able  to  protect  its  citizens,  they  cannot 
afterwards  be  punished  for  having  acquiesced  in  the  authority 
that  has  gained  control.  If  they  remain  quietly  as  non-com- 
batants, they  svill  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.  2>2,  Sec- 4;  Boyd's 
Wheaton,  Sec.  346  (e).     5.  4  Wheaton,  246;  8  Wallace,  1;  96  U.  S.,  189. 


EFFECT    OF    OCCUPATION    ON    LOCAL   ADMINISTRATION.         95 

pying  forces  has  9  right  to  require  of  the  inhabitants  an  oath  of 
fealty  to  him  not  inconsistent  with  their  general  and  ultimate 
allegiance  to  their  own  State.  1  He  may  require  them  to  do 
police  service,  but  not  to  take  arms  against  their  ow  n  country.  2 
Indeed,  in  the  absence  of  any  such  formal  promise,  it  is  under- 
stood in  modern  times  that  by  iaking  the  attitude  of  non- 
combatants  end  submitting  to  the  authority  of  the  conqueror, 
the  citizen  holds  himself  out  as  one  not  requiring  restrpint, 
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  lO  submit,  take  the  attitude  of  com- 
batants, may  be  placed  under  restraint  as  prisoners  ot  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  obeyed  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.  2.  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;  Bluntschli,  I.,  Sec.  35.  5.  Thorington  v.  Smith, 
8  Wallace,  9. 


I 


I 


96  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

the  people  of  Castine  as  citizens  of  the  United  States  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  duty  of  the  government  of  occupation  to 
provide  as  far  as  possible  for  the  security  of  persons  and  prop- 
erty and  the  f dministration  of  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  wa,s  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  protection  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  representative  of  the  conqueror.  Being  upon  the 
theatre  of  operations,  and  answerable  to  his  government  for 
the  success  of  its  arms,  he  has  superior  facilities  for  judging 
as  to  measures  best  calculated  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  Grapeshnt,  9  Wall,    132.     3.  Thorington 
v.  Smith,  8  Wallace,  11;    Williams  v.   Bruffy,  96  U.S.,  189;    Bluntschli, 
Laws  of  War,  I.,  Sees.  64,  122.      4.  Flemming  t;.   Page,  9  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.  1  This  power  would  be 
made  efifective,  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  instituted  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 
iiis  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  on  the  decails  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  with  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  themselves  deemed  best,  but  such  as 
comported    with   the   determination   of    the   Government   re- 

I.   Kent,  I.,  p.  93,  note.      2.   22  Wallace,  297. 


98  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  che  Union  forces  during  the  Rebellion  fiurnish  other 
illustrations  of  this  principle.  The  military  commanders  had 
a  duty  to  perform  in  conquering  the  rebellion,  but  their  course 
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,  i  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  proiiection  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  established  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  tire  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.,  276-77. 


I 


EFFECT    OF    OCCUPATION   ON    LOCAL   ADMINISTRATION.         99 

One  subject  seems  to  have  been  the  more  completely  to  bring 
forth  and  best  utilize  the  military  resoiu-ces  of  the  country. 
Further,  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  attempt  to  reduce  the  Spaniards  piecemeal  into  sub- 
jection with  a  view  to  the  subversion  of  their  kingdom.  1 

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  seciure  concessions 
from  the  yet  de  facto  but  expiring  sovereign ty.  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  ab  initio.  2 

It  was  the  disposition  of  the  military  government  to  up- 
hold all  Qon traces  entered  into  in  the  ordinary  course  of  busi- 
ness; to  ?void  interfering  with  vested  rights;  but  rights  that 
partook  of  the  nature  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  XL,  Chap.  11,  pp.  84,  85.     2.  Magoon,  p.  603,     3. 
Opinions  Attorney-General,  Vol.  22,  pp.  527-28. 


ICO  MILITAEY  GOVERNMENT  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 
I  ations,  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  four  departments ;  afterwards  a  su- 
preme court  was  established;  a  postal  code  was  published; 
the  jm-isdiction  of  the  criminal  courts  defined.  It  was,  the 
court  concluded,  wholly  for  the  politicfl  department  of  the 
Government  to  decide  when  our  troops  should  be  withdrawn 
from  Cuba,  i 

I    Neely  v.  Henkle,  i8o  U.  S.  Reports,  120 


CHAPTER  VII. 

Agents  for  Carrying  Military  Governmu;nt  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  training  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  allay  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  GOVERNMENT  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  pnd  prudent  to  continue  in  their  employment  all  such  of 
the  existing  officers  as  are  known  to  be  friendly  to  the  United 
States.     *     *    *    *    You  may  asstue  the  people  of  those  prov- 
inces that  it  is  the  wish  and  design  of  the  United  States  to 
provide  for  them  a  free  government,  with  the  least  possible  de- 
lay, similar  to  that  which  exists  in  our  Territories.     *     *     *     * 
It  is  foreseen  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  Court  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  pursued. 
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  annexation  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  FOR  CARRYING  INTO  EXECUTION.        103 

persons  are  required,  so  long  as  the  Territory  is  under  martial 
law,  to  be  in  their  houses  from  10  o'clock  at  night  undl  sunrise 
in  the  morning." 

Commodore  Stockton  was  succeeded  by  Commodore  Shu- 
brick,  U.  S.  N.  Meanwhile,  Genersl  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 
regulations  to  the  naval  authorities ;  while  to  the  military  au- 
thorities were  given  the  direction  of  the  operations  on  land 
and  the  administrative  functions  of  government  over  territory 
thus  occupied  by  their  forces.  Following  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. 


I 


AGENTS  FOR  CARRYING  INTO  EXECUTION.         1 05 

The  animosities  which  civil  war  engender  are  calculated  to 
prompt  to  the  exercise  of  these  rules  in  all  their  rigor.  On 
Ihe  other  hand,  nations  do  not  pursue  schemes  of  conquest,  in 
the  proper  sense  of  the  term,  against  revolted  subjects.  As 
against  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  nature  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  MILITAEY  GOVERNMENT  AND  MARTIAL  LAW. 

modified  by  the  conciliatory  policy  of  the  Federal  Government. 
An  important  feature  consisted  of  military  commissions  com- 
posed of  military  officers  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 
enlarged  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  patriotically  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 
thas  to  restore  (  ls  far  as  is  consistent  with  public  safety  and 
the  secure  tenure  of  conquest)  the  blessings  of  civil  liberty  and  a 
just  administrf  tion  of  laws — most  of  which  are  made  by  .hose 

I.  Rebellion  Records,  Series  I.,  Vol.  II.,  Part  III.,  p.  77;  Vol.  XIV., 
p.  334;  Vol.  XVI. I,  Part  II.,  p.  41;  Vol.  IV.,  p.  20.  2  The  Grapeshot, 
9  Howard,  132. 


. 


AGENTS  FOE  OAERYING  INTO  EXECUTION.        1 07 

on  whom  they  are  administeied — is  an  act  of  magnanimity 
worthy  of  a  great  people.  Such  a  government,  though  founded 
on  and  adrninistered  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  vvrongs.  It  can  not  fail  to  encourage 
end  support  the  friends  of  the  Union  in  disloyal  districts  b\ 
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  and  continuing 
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- 
t?ry  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.  Shepley  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  limics  of  his  State,  all  and  singular  the 
powers,  duties,  and  functions  pertaining  to  the  ofiice  of  military 

I.  Whiting^,  War  Powers,  loth  edition,  p.  265. 


Io8  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

governor  (inchiding  the  power  to  establish  all  necessary  offices 
gnd  tribunals  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  military  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  than  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,  great  i  s  might  be  the  desire,  tlu-Qugh 
the  instrumentalities  of  ciA'il  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 
governors  in  the  execution  of  undefined  civil  duties,  yet,  as  a 


AGENTS  FOR  CARRYING  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  cotild  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  ilso  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  tliird 
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. 


I 


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  officials  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  r. 
White,  7  Wallace,  730.     3.   Handlin  v.  WicklifT,   12  Wallace,   174. 


AGENTS    FOR    CARRYING   INTO    EXECUTION.  I  I  i 

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  insiiance  of  national  and 
disinterested  generosity  as  that  here  evidenced  towards 
the  embryo  Cuban  republic. 

The  military  governmenc  in  Porto  Rico  made  use  of  civil 
administration  only  as  ?  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  riational  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  MILITAKY  GOVERNMENT  AND  MARTIAL  LAW. 

turbulen  t  di  s  trie  ts .  The  solici  tude  of  the  National  Govern  men  t 
here  evidenced  to  lay  a  deep  foundation  in  the  affections  of 
the  Philippine  people  stands  without  a  parallel. 

91.  The  British  authorities  in  vSouth  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  subjects.  The  burghers  were  treated  as  public 
enemies  alone.  Over  the  former,  civil  jurisdiction  vv9s  main- 
tained as  far  as  practicable,  but  it  gave  wry,  at  the  first  touch 
of  conflict,  to  the  military  jurisdiction.  Effort  was  made 
to  ancicipate  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  course  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,  however,  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  sirictly  military 
principles.  1 


I .  Papers  relating  to  martial  law  in  South  Africa,  presented  to  Par- 
liament by  command  of  His  Majesty,  London,  1903. 


CHAPTER  VIII. 

All  Inhabitants  Enemies;  Levies  en  Masse. 

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;  Bluntschli,  I.,  Sec.  2.  2.  Kent,  i,  p.  55;  2  Black,  635. 
3    Bluntschli,  1.,  Sees.  21,  33,  38. 

"3 


114  MILITAET  GOVERJSIMEMT  AND  MAETIAL  LAW. 

is  lawful,  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 ;  as  are  in  fact  all  those  who,  though  tech- 
nically enemies,  cake  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;    LEVIES   EN    MASSE.  I  15 

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  Franco-German  War  it  was  a 
common  practice  for  the  Germans  to  arrest  and  retain  in  cus- 
tody influential  inhabitants  of  places  at  or  near  which  bridges 
were  burned,  railroads  destro3^ed,  etc.,  b)'^  unknown  parties 
within  occupied  French  territory. 

95.  But  moderation  towards  non-combatants,  how  com- 
mendable soever  it  be,  is  not  absolutely  obligatory.  If  the 
commander  sees  fit  to  supersede  it  by  a  harsher  rule,  he  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  belhgerent  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  BluntschU's  Laws  of  War,  1.,  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,  acang  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  chat  wc^men 
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  che 
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  justitied  in  treating  them 
more  rigorously.  Even  women  and  children  mny  be  held  under 
restraint  if  circumstances  render  it  necessary  in  order  to  secure 
the  just  objects  of  the  wa.r.  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  wiiihout 
being  justly  accused  of  violating  military  customs. 

97.  The  success  of  his  arms  is  the  first  object  of  che  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  n(;t  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;    LEVIES    EN    MASSE.  I17 

by  reasons  not  generally  known  or  which  it  would  be  easy  or 
wise  to  explain.  It  is  an  extreme  measure,  but  it  m?y  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  Sachet  to  force  the  Spaniards  to  sur- 
render the  citadel  of  the  fortress  of  Lerida,  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  daylight  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.) 

1.   Instructions  U.  S.  Armies  in  the  Field,  Sec,  i,  pars.  17,  18, 


1 1  8  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

has  been  affirmed  in  repeated  decisions  of  the  vSupreme  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- 
oughly 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  b}'  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;   LEVIES   EN   MASSE.  II9 

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  sufi'er  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  che  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."  1  Distinctions  between  the  loyal  and  disloyal  of 
rebellious  districts  will,  as  a  rule,  be  regulated  through  the  leg- 
islative action  of  the  legitimate  government.  While  the  power 
to  cfrry  on  war  carries  with  it  every  incidental  power  nec- 
essary CO  render  it  effective  sanctioned  by  the  law  of  nations, 
it  can  not  be  doubted  that  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  discrimina.te  between  sub- 
jects in  insurgent  territory,  generally  relate  to  property,  ap- 
propriating that  of  the  disloyal  while  so  far  as  practicable 
protecting  that  of  che  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.  Act  August  6,  1861,  12  Statutes  at 
Large,  319;  July  17,  1862,  ibid.,  591;  March  12,  1863,  ibid.,  820.  4.  In- 
structions U.  S.  Armies  in  the  Field,  Sec.  4;  Bluntschli,  Laws  of  War,  I., 
Sec.  134. 


I  20  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

tion  is  enforced  with  great  rigor  by  the  dominant  power. 
Inhabitants  of  the  country  miUtarily  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  governor-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  thit  all  houses  or  villages  affording  shelter  to 
franc-tireurs  would  be  burned,  unless  the  mayor  of  the  com- 
munes informed  the  nearest  Prussian  ofhcer  of  their  presence 
immediately  on  their  arrival  in  the  conmiunes.  All  communes 
in  which  injury  was  suffered  by  railways,  telegraphs,  bridges, 
or  canals  were  to  pay  a  special  contribution,  notwithstanding 
that  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;   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  legitimate.  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 

I.  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 : 

1.  All  the  houses  were  wanted  for  military  storage  and  occupation. 

2.  To  enable  a  contracted  line  of  defense  to  be  estabhshed,  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  extraordinary  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  MILITARY   GOVERNMENT   AND   MARTIAL   LAW, 

sanction  commit  hostilities  the  enemy  shows  them  no  mercy, 
but  hangs  them  up  es  he  woiild  so  many  robbers,  i 

I02.  It  is  a  well-established  military  principle  that  pred- 
atory pyrties  and  guerilla  bands  are  not  legally  in  arms.  The 
military  name  and  garb  which  they  may  have  essumed  cannot 
gi\e  exemption  to  the  crimes  which  they  commit.  2 

Some  writers  have  indeed  expressed  views  which  if  not  at- 
tentively examined  might  leqd  to  other  conclusions.  "An 
armed  party,"  remarks  Bluntschli,  "which  has  not  been  em- 
powered by  ?ny  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,  and  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  pursuits,  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.  5 


I 


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  coiu-se 
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  population,  were,  by  the  Prussian  laws  of 
war,  punishable  with  death.  The  policy  indicated  in  this 
noiiice  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  captured  or  nearly  dispersed  md 
irregulars  were  largely  depended  on,  to  melancholy  results. 
General  Chanzy,  a  gallant  French  officer,  wrote  to  the  German 
commander  at  Vendome  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  authorize  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 
annoying,  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 

I.  Instructions  Armies  in  the  Field,  Sec.  4,  clauses  2-4.  2.  Customs 
of  Wir   Tovey,  p.  75. 


124  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

hand  of  friendship  one  moment  and  shooting  from  point  of 
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  spart  from  500  to  3,000  yards,  requiring  on  an  av- 
erage 10  men  to  each  house,  or  50,000  soldiers  all  together; 
but  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  mere}  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  pcemptorily  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  pursuing  their  course 
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  illegidmate  crept  in. 


i 


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  legalized,  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  murder.  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 regularly  conducted.  To  do  this  would  be  to  confound 
all  distinctions  between  right  and  wrong.  No  n?tion  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  individucd.  "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  incorporated  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  regti- 
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  1  ,  Sees.  61,  6ia.       2.   Hall,  pp.  474-477. 


1 2b  MILITAKY    GOVEllNMENT   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  imprecticable,  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  thus,  levies  en  masse  must  conduct  hostilities  in 
accordance  with  the  laws  of  war.  They  can  not  be  soldiers 
one  day,  the  next  b^  engaged  in  the  peaceful  pursuits  of  life, 
and  the  day  after  agam  be  found  in  hostile  array.  Such  con- 
duce 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  diffi- 
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  ihera  long  successfully  Lo  keep 
the  fie'd.  Yet  it  is  necessary  that  they  conform  in  their  mil- 
icary  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  may  be  sum- 
marily 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    IN^HABITANTS   ENEMIES  J   LEVIES   EN   MASSE.  137 

to  do,  under  the  pressure  of  sustained  effort,  the  levies  break 
up,  disintegrate,  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  wr^r  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  power  of  the 
nation  rendered  subservient  to  the  plan  of  the  general-in- 
chief."  1 

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 


■j 


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  distinctive  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  a,s  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  common  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 

I.  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  ?  State,  if  it  so  desires, 
relying  for  its  fighting  force  upon  the  precarious  services  of 
levies  en  masse  rather  than  regularly  organized  armies.  1     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  pureh'^  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, 
?nd  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  plsced  in  the  field  in  time  of  war.     This  is  the  policy  of  the 
more  important  States  of  continental   Europe.     With  them 
levies  en  masse  are  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  small  standing  armies  or  have  not 
Jidopted  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  locks  no  further 
than  personal  interest. '   But  those  who  support  the  affirmative 

I.  Bluntschli,  Laws  of  War,  I.,  par.  89;  Instructions  Armies  in  Field, 
Sec.  3,  pars.  4,  5;  Hague  Conference,  Sec.  r,  Chap,  i.  Art.  II  (G.  O.  52, 
A.  G.  O.,  1902.) 


130  MILITARY   GOVERNMENT  AND  MARTIAL  LAW. 

of  the  question  have,  in  addition  to  self-interest,  this  cogent 
circumstance  in  their  favor,  namely,  the  fact  that  every  mil- 
itary n?  tion,  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  nation  has  hesitated  to  resort 
to  levies  from  conscientious  scruples.  And  on  principle  the 
right  to  employ  levies  en  masse  can  not  successfully  be  contro- 
verted. No  independent  State,  unless  it  be  agreeable  to  itself, 
is  obliged  to  keep  one  soldier  iii  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  curtail  her  natural  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  c?rry  on  hostilities  according  to  the  laws  of  war. 

III.  In  arriving  at  a  solution  of  the  problem  ?s  to  the  char- 
acter of  its  military  force,  che  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  unimpaired.  The 
question  is  how  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    E.N    MASSE.  I3I 

is  perfect.  Its  expediency  is  another  question.  In  deter- 
mining upon  this  the  great  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 
dme  when  they  ar^  most  needed,  more  dangerous  to  friends 
than  foes, — are  considerations  not  to  be  lost  sight  of  by  a  State 
which  depends  iipon  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),  that  in  order  to  insure  treatment  as  belhgerents 
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  b}'  the  enemy,  or  of  the  whole  country,  at 
the  approach  of  a  hostile  army,  rise,  under  a  duly  authorized 
lev>',  en  masse  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,  thev  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  Ginference,  Sec.  i,  Chap,  i,  Art.  I. 
(kn  O.  52,  A.  G.  O.,  1902.) 


CHAPTER  IX. 
Laws  Obugatory  Within  Occupied  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  civil  law  of  the 
conquering  country ;  it  is  military  law,  the  law  of  wan]  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. 3  "In  the  event  of  ?  military  occupa- 
tion," said  Maine,  "the  authority  of  the  regular  g  )vernment 
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.   Dow  v.  Johnson,  100  U.  S.,  p.  170. 

132 


LAWS   OBLIGATORY    WITHIN   OCCUPIED   TERRITORY.  1 33 

The  rule  of  military  occupation  has  relation  only  to  the  in- 
habitants of  the  invaded  country."  1 

114.  It  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  1  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  de?l  with  three  classes  of  cases : 
First,  those  affecting  the  persons  and  property  of  the  conquered, 
determining  their  rights,  duties,  and  obligations;  second,  those 
which  concern,  in  a  similar  manner,  citizens  of  the  conquering 
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?;. 
Tenn.,  97  U.  S.,  516.     4.  97  U  S.,  516-17;  100  U.  S  .  T70. 


134  MILIT.AJRY    GOVERNMENT    AND   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. 

1 1 6.  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  his  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 
p,t  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  greacly  ameliorated. 
These  modifications  are  elastic  and  their  practical  applica- 
tion characterized  by  more  or  less  severity,  but  in  their  general 
effect  lliey  are  regarded  as  obligatory  upon  commanding  gen- 
erds  in  the  exercise  of  belligerent  rights.  For  their  observance 
the  genenls  are  answerable  to  their  government,  and  the  latter 
to  the  fr.milv  of  nations. 


I.  Ante,  Chap.  6.  i.  Kimball  v.  Taylor,  Wood's  Reports,  2d  La. 
Dist.;  G.  O.  100,  A.  G.  O.  1863,  Sec.  2,  clause  17.  3.  Hague  Conference, 
Sec.  3,  Art.  XLHI.;  G.  O.  52,  A.  G.  O.,  1902;  97  U.  S.  Rep.,  509  ei  seq.; 
100  U.  S.  Rep.,  15S  et  scq. 

Note. — It  lias  been  osserted  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 


i 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TEREITORY.  1 35 

Immediately  upon  the  military  occupation  these  laws  cease 
that  pertain  co  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  frcm  an  independent  power  or  to  enforce  nation?! 
supremacy  against  rebels.  Wer  existing,  each  belligerent  has 
a  rght,  as  against  the  other,  to  do  whatever  he  finds  necessary 
to  the  attainment  of  the  end  he  his  in  view.  He  has  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  purpose.  But,  while  strictly  pursuing  this 
course,  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  ?buse 
his  power.  Right  goes  hand  in  hand  wich  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  assumption  of  control  by  the 
miUtary  authorities  of  the  invader,  they  contirue,  if  they  so  elect,  in  the 
full  execution  of  choir  duties  unless  tlie  conciueror  by  some  positive  act 
notifies  them  to  the  contrary,  or  in  some  unmistakable  maivner  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  [military  government], 
unless  interrupted  or  stopped  by  order  of  the  occupying  miUtary  power; 
but  all  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, 
^97;  Ante,  Chap.  6,  Sec.  67. 


136  MILITARY   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.  1 

"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  law  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  war  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.     2.  International  Law,  p.  431. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.  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;  buc  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 court  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  che  Supreme 
Court  of  the  United  States,  3 — the  principle  upon  which  the 
latter  court  proce'eded  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  GOVERNMENT  AND  MARTIAL  LAW. 

All  United  States  militarv  authon'ties,  wherever  their  con- 
quering arms  have  gone  since  the  beginning  of  the  Spanish 
War  in  1898,  have  acted  on  this  principle.  _    --" 

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  com-ts  of  the  country.  Trial  of  offences,  one 
party  being  Mexican  and  the  other  American,  was  referred  to 
military  commissions,  appointed,  governed,  and  limited,  as 
nearly  as  practicable,  in  accordance  with  the  law  governing 
courts-martial  in  the  United  States  service.  The  proceedings 
w>jre  recorded,  reviewed,  approved,  or  disapproved  and  the 
seiitences  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 
courts  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   OCCUPIED    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  it  en- 
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  capitaJ,  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  hostiUties,  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  vStates  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  miUtary  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 


I40  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  Cotut  of  the 
United  States  have  dispelled  whatever  doubts  at  one  time 
existed  on  this  subject.  That  they  should  have  existed  is  not 
stu-prising  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- 
tues  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  jurisdiction,  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  stj'le  of 
war  court  take  cognizance  of  all  offences  not  triable  by  courts-martial  or 
the  civil  courts  of  the  land.  We  have  profited  by  this  experience.  The 
council  of  war  has  dropped  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  sabction  not  only  of  executive,  but  of  legis- 
lative and  judicial  authority. 

I.  11  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  the  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  or  smaller,  ac- 
cording to  its  pleasure.  It  may  prescribe  the  rjevenues  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 
che  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  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

Premising  with  the  remark  chat  the  army  had  advanced  to 
its  then  position  for  the  purpose  of  compelling  submisssion  to 
the  laws  of  the  United  States,  and  that  extensive  mihtqry 
opera fions  were  found  necessary  for  the  suppression  of  rebellion, 
ths  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  the  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  ofhcers,  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  mIso  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;  provMed, 
that  all  punishments  under  military  commissions  shall  be  of  the 
description  generally  ifhxed  throughout  the  United  Staces  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.  Ths  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.  Arm>  Potomac;  R.  R.  S.,  I.,  Vol.  ii,  Part  III.,  p. 
77  ;  see  also  R.  R.  S.,  I.,  Vol.  12,  Part  I.,  p.  52. 


LAWS    OBLIGATORY    WITHIN   OCCUPIED   TERRITORY,  I43 

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  r^lwaj's  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  b}^  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  capture 


144  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

to  the  commander  of  the  Department  of  Mississippi:  "As  I 
am  without  instructions,  I  em  a  little  in  doubt  as  to  my  au- 
thority to  license  and  limit  trade,  punish  offences  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  fortunes  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,  coir 
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.  Gate?  v.  Goodloe,  loi  U.  S., 
616. 


LAAVS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.  1 45 

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  cognizable  by  courts- 
martial,  whether  committed  by  soldiers  or  others.  1 

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  might  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    K    S.,  I.,  Vol.  17,  Part  II.,  p.  294.     2.   R.  R.  S.,  I.,  Vol.  24.  Part 
III.,  p.  1067.     3.   22  Wallace,  p.  301  et  seq.;  Field  .).,  dissentient. 
10— 


146  MILITARY    GOVERNMENT    AND   MARTIAL    LAW. 

have  been  affirmed.  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  others  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  may  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 

T.  22  Wallace,  276;  12  Wall,  173;  15  Wallace,  384.  2.  6  Coldwell, 
39^;  7  Coldwell,  341;  contra,  12  Heiskell,  401.  3.  icx)  U.  S.,  15S;  9  Wal- 
lace, 123;  22  Wallace,  276;  20  Wallace.  3q4;  12  Wallace,  173;  15  Wallace. 
384. 


LAWS  OBLIGATOKT  WITHIN  OCCUPIED  TERRITORY.    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  aheady  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  jurisdiction.  2  So  far  as 
known,  no  question  arose  ?s  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  affairs  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  jmisdiction,  the  case 

1.  Ante,  Sec.  82.     2.  R.  R  S.,  I.,  \  ol.  6,  Part  1.,  p.  722. 


148  MILITARY   GOVEENMENT   AND   MAllTIAL   LAW. 

was  finally  appealed  to  Liie  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  court,  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  military  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.   A.rt.  III.,  Sec.  i.     2.  9  Wallace,  129;  20  Howard,  176. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.  1 49 

had  not  exceeded  his  powers.  The  Federal  question  involved 
in  this  branch  of  the  subject  was  w^hether  a  commanding 
general  could  give  a  provost  court  cognizance  of  civil  cases, 
and  that  question  was  decided  in  the  affirmative.  1 

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  Presi- 
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  court  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  Court  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  y€t  more  fully  vindicated  m  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  v.  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  jurisdiction  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 
governorof  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  fccilities  for  prosecuting  their  claims,  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  coiu-se  of  proceedings  and  practice  which  had  been  cus- 

I.  Dow  V.  Johnson,  loo  U.  S.,  159.  2.  Rise  and  Fall  of  the  Confeder- 
ate Government,  Vol.  2,  p.  289.  3.  Handlin  v.  WickUfi,  12  Wallace,  173 
Penny  wit  v.  Raton,  1 5  Wallace,  384. 


LAWS    OBLIGATORY   WITHIN   OCCUPIED   TERRITORY.  151 

ternary  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  cotuts  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,  18 12. 2  On  the  other  hand,  the 
Supreme  Court  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  by  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.5  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,  b)'  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  court,  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  courts  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  court  to  provide  for  the  transfer  of  cases  pending  in 
that  court  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  military  courts  are  not;  it 
became  the  duty  of  the  National  Government,  whenever  the 
insurgent  power  was  overthrown  and  the  territory  which  had 

I.  Chap.  3EO.,  Statutes  at  Large,  14,  344.  5.  9  Wallace,  133;  20 
Howard,  176;  13  Ibid.,  498;  16  Ibid.,  164;  a  Wheaton,  246. 


LAWS  OBLIGATORY  WITHIN  OOOUPIED  TERRITORY.    1 53 

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  during  war  the  territory  of  another 
belligerent.  1  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 

L41.  Thus  it  has  been  solemnly  determined  that  the  au- 
thority of  the  President,  and  of  commanders  under  him,  for 
the  establishment  of  com'ts  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.  115),  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  will  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. 
D>w  V.  Johnson,  100  U.  S.,  158;  Coleman  v.  Tennessee,  97  U.  S.,  509. 
4.  Sec.  1342,  R.  S.,  U.  S. 


154  MILITARY   GOVERNMENT  AND  MARTIAL   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  Gov^ernment  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  musL  be  held  to  applj 
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  certam  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  within 
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  good  order  and  military  discipline  with  which 
members  of  the  military  establishment  are  charged.  Specific 
crimes,  disorders,  and  neglects,  capital  and  otherwise,  ar.f  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  cotuts-martial  according 


I.  5  Opinions  Attorney-General,  58.     2.  Flemings.  Page,  9  Howard, 
615.    3.  Art.  I.,  Sec.  8,  clause  13.    4.  As  Arts.  LVL,  LVII. 


I 


LAWS   OBLIGATORY   WITHIN   OCCUPIED  TERRITORY.  1 55 

to  the  nature  and  degree  of  the  offence,  and  made  punishable 
at  the  discretion  of  such  courts.  1 

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  reflecting  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  order,  punish  crime,  and  protect  property  was  suffi- 
cient for  every  contingency.  Where  the  statutory  law  prov.id 
deficient,  or  was  supposed  to  be  so,  the  supplemental  code 
drawn  from  the  customs  of  war  supplied  the  deficiency.  4     The 


r.  IvXII.  Article  of  War.     2.  Scott's  Autobiography,  pp.  393.  54i- 
See  Winthrop's  Mil.  Law,  ist  Ed.,  Vol.  i,  p.  961.     4.  Appendix  1. 


156  MILITARY  GOVERNMENT  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 murdir  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- 

I.  100  U.  S.,  170;  97  U.  S.,  515;  Act  March  3,  1863,  Chap.  75  [LVIII. 
and  LIX.  Arts,  of  War];  Halleck,  Chap.  33,  Sec.  6.  2.  Title  7o,  Chap. 
3,  Sees.  5339,  534i,  etc.,  R.  S.,  U.  S.;  5  Opinions  Attorney  -  General.  55 
1  Kent,  Lecture,  16. 


>c., 


LAWS    OBLIGATORY    WITHIN   OCCUPIED   TERRITORY.  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.  1 

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  instructive  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  GOVERNMENT  AND  MARTIAL  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  wer'i  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  mts  and  of  others  not 
in  the  military  service — in  other  words,  in  order  that  the  ordin- 
ary puisuits  and  business  of  society  may  not  necessarily  be 
deranged — the  municipal  laws,  thai;  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  OBLiaATORY  WITHIN  OCCUPIED  TERRITORY.    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.  Thesa  remain  subject 
to  the  laws  of  war,  and  are  responsible  for  their  conduct  onlv  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  thac  of 
public  opinion  which,  it  is  co  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.  1 

151.  In  the  coiuse  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  seizvure  of  property ; 
that  is,  a  seizure  made  in  the  exercise  of  a  belligerent  right. 
In  chat  case  British  forces,  November  16,  18 17,  capcured  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  mem- 
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  t^'me 
there  were  no  hostilities  in  the  immediate  neighborhood,  and 
the  civil  coturts,  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.  loo  U.  S.,  p.  158  et  seq.      2,  i  Knapp,  Privy  Council  Reports,  p.  316. 


l6o  MILITARY  GOVERNMENT  AND  MAETIA.L  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  murder  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  enemy  country 

I.  97  U.  S.,  509,>/  seq.;  Proclamation,  August  16,  1861;  12  Statutes 
at  Large,  1262. 


LAWS    OBLIGATORY    WITHIN    OCCUPIED   TERRITORY.  l6l 

military  tribunals  had,  under  statutory  law  and  the  laws  of 
war,  exclusive  jurisdiction  to  try  and  punish  oflfences  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  application  of  the  principle. 
And  this  for  the  reason  that  the  laws  of  Tennessee  did  not 
apply  during  mihtary  occupation  to  the  defendant,  a  soldier  of 
the  United  States,  and  subject  to  the  articles  of  war.     He  was 

I.  Act  July  13,   1861,  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  f^om  motives  of 
convenience,  were  without  jurisdiction  to  deal  with  him. 

153.  These  decisions  conform  to  the  pri  iciples  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  mihtary  commission,  which  is  a  war-court,  convened  as  an 
incident  of  beUigerent  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- 

A*  '  ^-  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. 


LAWS    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  money,  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  Unlisted  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  mihtary  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  mihtary  government;  still  they  are 
applicable  to  such  persons.  For  the  taking  cognizance,  how- 
ever, of  all  crimes  committed  by  or  against  this  class  of  civiUans' 
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  not  limit  their 


164  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

applicability  as  to  persons.  "Whosoever"  is  a  terra  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  or  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   W]  et  seq 
2.  De  Hart,  22,  Benet,  33;  Ives,  60;  Digest,  48;    Winthrop,  Vol.  i,p.  118. 


LAWS   OBLIGATORY   WITHIN    OCCUPIED   TERRITORY.         1 65 

State.  But  criminal  laws  of  the  conquering  State  have  no 
vaUdity  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.* 

160.  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  I^aw,  p.  95.     2.  4  Blackstone,  303. 


1 66  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

consent  of  the  defendant.!  But  it  has  been  decided  by  the 
Supreme  Court  of  the  United  States  that  the  Federal  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  comraitteci  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  military 
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.  v.  Hudson 
&  Goodwin,  7  Cr.,  32;  U.  S.  v.  Bexans,  3  Wheaton,  336.  3.  Mostyn  v, 
Fabrigas,  i  Cowper,  161.  4.  McKenna  v.  Fish,  2  Howard,  411;  Gardner 
V.  Thomas,  4  Johnson,  134;  Glen  v.  Hodges,  9  Johnson,  67. 


I 


LAWS   OBLIGATORY   WITHIN  OCCUPIED  TEREITORT.  1 67 

in  other  cases,  jurisdiction  of  the  parties  being  first  had,  an 
action  may  be  maintained  in  the  proper  State  court.  1  What- 
ever, therefore,  may  be  the  natuie  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, 
scatutory  or  common,  or  the  courts  of  their  own  country,  fully 
protect  civilians,  citizens  of  the  conquering  State,  who  may  be 
sojourning  temporarily  subject  to  military  government. 

163.  Thirdly  :2  neutrals  residing  in  conquered  territory  ar^ 
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  at- 
tained he  has,  strictly  speaking,  a  right  to  use  every  proper 
means  for  its  accomplishment. 4  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 
thac  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,  theoretic?lly  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  custom  is  to  ex- 
empt certain  persons  frorfi  the  direct  effects  of  military  opera- 
tions. In  dealing  with  neutrals,  residents  of  the  conquered 
State,  the  conqueror  has,  in  addition  to  humane  constdera- 
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.     4. 
Wheaton,  International  Law,  Sec.  342. 


1 68  MILITARY   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  naturalized  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  have  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  Coiu-t  of  the  United  States  in 
the  case  of  the  ship  Essex.  3  On  the  12th  of  May,  1862,  after 
the  capture  of  New  Orleans  by  the  Union  forces,  the  President, 
having  become  satisfied  that  the  blockade  existing  against 

1  9  Howard,  61  j.  2.  Halleck,  Chap.  32,  Sec.  9.  3.  92  U.  S.,  520 
(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  i  st  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. 
Early  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  public  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. 


lyo  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

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  military 
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 
feh  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  beUeve,  and  did  be- 
lieve, were  contraband,  because  intended  for  use  to  promote 
the  rebelUon.  It  was  his  duty,  therefore,  under  his  instruc- 
tions, to  see  that  the  vessel  was  not  cleared  with  these  articles 


IvAWS    OBUGATORY   WITHIN    OCCUPIED   TERRITORY.         lyi 

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  obliged  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  military  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  military  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  rebellion,  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  thej^general  commanding 
the  invading  army  upon  the  establishment  of  military  govern- 
ment at  New  Orleans  in  1862  has  been  mentioned.     The  Su- 


I.  2  Wallace,  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  vStates  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 
responsibilities  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. 


LAWS    OBLIGATORY   WITHIN    OCCUPIED   TERRITORY.         1 73 

situations  of  these  two  classes,  both  of  which  owe  temporary 
allegiance  to  the  military  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  liberty  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  and  important  as  to 
what  e.^cacy  is  to  be  given  to  judgments  r  endered  in  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 

I.  Wharton,  Conflict  of  Laws,  Sees.  705,  707,  712;  McKenna  v.  Fish, 
1  Howard,  241;  Mitchell  v.  Harmony,  13  How.,  137;  Wharton,  Inter- 
national Law,  Sec.  113. 


J... 


174  MILITARY  GOVERNMENT   AND   MARTIAL   LAW. 

demanding  attention  in  all  the  territories  wrested  from  Spain 
in  consequence  of  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. 


f 


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. 

175 


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  if  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.  Law  of  Nation.-;,  p.   124.     2.  b  Crancb,  .10. 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  1 77 

war.  It"  is  in  this  view  of  the  case  that  the  Hague  Conference 
announced  that  private  property  cannot  b- confiscated.!  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  otf  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  e.^ercise  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  f  jr  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.  vSo  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  obcains  at  least  a  partial  indemnification, 
or  equivalent,  either  for  whit  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 

I.  Sec.  3,  Art.  XLVI.,  G.  O.  52,  A.  G.  O.,  1902.     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.i 

175.  "A  conquering  State,"  says  Manning,  "enters  upon 
the  rights  of  the  sovereign  of  a  vanquished  State;  national 
revenues  pass  to  tlje  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  po^ver  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    REGARDING   PRIVATE   PROPERTY.  1 79 

cially^condemned ;  further,  that  the  act  of  Congress  of  18 12, 
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 
enemy  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  Crunch,  no.  2.  vVlieaton,  Part  IV.,  Sec.  304,  Dana's  :jote,  1  ■^6 ; 
Kent,  1.,  60. 


l8o  MfLITARY   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 
subject  of  the  power  that  appropriates  the  property.  A  resi- 
dent of  a  hostile  country  whatever  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  v.  U.  S.,  11  Wall.,  pp.  305-06. 
3    Wheaton.  Part  IV.,  Chap    i.  Seo   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  d  right  to  confiscate 
in  case  of  foreign  wars  exists  in  full  force  when  the  war  is  do- 
mestic or  civil. 

179.  The  power  of  Congress  to  legislate  regarding  confisca- 
tion of  enemy  property  is  found  in  that  clause  of  the  Constitu- 
tion granting  thi  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  ?11  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.  During  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.  Bat  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 
measures  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. 11  Wallace,  305.     3.   1 3  Wallace,  1 36. 


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." 

r8i.  The  first  act  authorizing  the  confiscation  of  property 
was  that  of  August  6,  186 1.3  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 
dutv^  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  the  property  might  at  the  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  ?,gainst  the  govern- 
ment th  'reof,  or  aiding  or  abetting  such  rebellion,  and  not 
ceasing  so  to  do  and  returning  to  hi§  allegiance  within  sixty 

I  II  Wallace.  .p8.  2.  Chap.  105,  Sees.  5,  6,  12  Statutes  at  Large, 
pp.  590  91 


1 84  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

•days  after  proclamation  duly  made  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  court  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  rebjl 
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 
were  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  the  enemy's  cause 
they  cast  in  their  lot  with  his.     They  cannot  be  permitted  to 

I    Miller  v.  U.  S.,  ri  Wallace,  ?o8. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  185 

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 
the  property  of  a  non-combatant  resident.  This  is  the  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.  1 

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 
rebellion,  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  Miller  i;.  U.  S.,  11  Wallace, 
pp.  306-13;  U.  S.  V.  Anderson,  9  Wallace,  p.  64.  j 


1 86  MILITARY   GOVERNMENT    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  during  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  me;  sure  was  indeed  general  in 
its  terms,  protecting  alike  iW  loyal  owners  of  property  whether 
residing  North  or  South,  but  the  moving  Cc^use  prompting  to 
it  was  the  trying  situation  of  loyal  Southerners,  who,  amidst 
^eatest  difficulties,  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 
so  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  Large,  12,  820.       3.   9  Wallace,  p.  65. 


I 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  1 87 

ordnance,  ships,  steamboats,  or  other  water-craft,  and  the 
furniture,  forage,  miHtary  supplies,  or  other  munitions  of  war. 
This  last  description  of  property  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.  1 

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 
host'lities  was  subjected  to  seizure  and  sale.  3 

185.  The  duty  of  determining  what  enemy  property  is 
subject  to  confiscation  rests  exclusively  with  Congress;  still, 


»     6  Wallace,  p    56;  ibid.,  p.  531 ;    i^ibid.,  p.  138.      2.  Sec.  i8} ,  ante. 
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  lies  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  hello.  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 

t    Ante,  vSec.  24. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  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  exclusive.  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  officers  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  MILITARY    GOVERNMENT    AND   MARTIAL,   LAW. 

department  the  nation  has  confided  the  duty  of  conducting  all 
raiUtary  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,ia  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  most  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  Lou- 
isiana seized  the  private  property  of  one  of  the  inhabitants 
for  the  use  of  the  troops.  Suit  was  entered  against  the  ofBcer, 
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.   Fle-ningi;.  Page,  9  How.,  p.  615.      2.    100  U.  S.,  p.  167. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  191 

civilized   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  writirrg  him  essays  regarding  his  future 
military  operation^;.) 


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 
military  occupation,  and  therefore  the  military  mayor  and 
boards,  its  appointees,  had  no  authority  to  make  such  a  lease; 

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.  393;  2  Black,  p.  636;  3 
Wallace,  417;   6  ibid.,  p.  i. 


RIGHTS    KEGARDING   PRIVATE   PROPERTY.  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.  "  \\'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  expenditures  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  over  to  the 

13— 


194  MILITARY   GOVERNMENT   AND   MARTIAL   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  return  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  vvdth  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  on 
common  sense,  and  the  laws  of  war  are  a  branch  thereof.  3 
This  opinion  of  the  Supreme  Court  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. 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  1 95 

variance  with  the  better  thought  of  the  more  enlightened 
present,  it  is  not  only  allowable,  but  it  is  eminently  proper 
that  the  former  should  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  insurrectionary 
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  wha 
accept  benefits  flowing  from  public-spirited  enterprises.  1 

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- 
N^ention  of  nth  December,  1871,  a  declaration  to  that  effect^ 


I.  Opinions  Attorneys-General,  Vol.  23,  p.  562;  ibid^Vo).  22,  p.  543; 
tbid.,  Vol.  22,  p.  410. 


196  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

which  was  treated  by  the  Germans  as  conforming  to  correct 
principles.  1 

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  purposes.  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  turned  into 
the  national  Treastu-y,  everything  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 

1.  Page  1 4 1, -see  also  Hall,  p.  1-49  6/5-57.  2  Opinions  Att'y  Gen.,  Vol. 
23,  p.  181;  Magoon,  p.  179. 


EIGHTS    REGARDING   PRIVATE   PROPERTY.  1 97 

after  it  has  ceased.  This  is  true  of  administrative  acts  in  this- 
narrower  meaning — financial,  economical,  educational — as 
well  as  of  judicial  acts,  judgments  in  civil  and  criminal  pro- 
ceeding. As  the  law  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,  and  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  courts, 
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,  i 

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.  Bluatschli,  Laws  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  true  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  f.ll  its  barbarism 
and  demoralizing  influences. 

198.  The  practices  of  modern  times  have  tended  to  soften 
the  severity  of  warhke  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  usige 
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  captured  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, 
I.,  pp-92  93;  Woolsey,  Sec.  i.?6.  3.  G.  O.  109,  A.  G.  O.,  1862.  4.  Kent, 
I.,9'. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  199 

pitulation."  But  this  question  is  one  of  expediency  rather 
than  of  law.  i  The  appropriating  power  may  not  have  the 
funds  to  pay  for  suppHes.  It  may  have  come  to  that  point 
in  its  financial  affairs  when  the  rule  that  war  must  be  made 
to  sustain  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  fbove  quoted  order  in  the 
early  stages  of  the  Civil  War.  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  greet  cavalry 
raids,  which  have  become  a  prominent  feature  of  recent  w  irs, 
.vhere  large  mounted  foices  traversing  extensive  parts  of 
enemy  territory  essay  to  break  up  his  communications,  de- 
stroy his  sources  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  mTvements  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  ?11  familiar  vvith  the  practice 
of  armies  in  the  field,  as  well  as  the  views  of  writers  of  authority, 
that  the  Hague  Conference  of  1 899  extended  the  pi  inciples  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  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

200.  There  is  a  distinction  between  the  rights  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  results  of  such  efforts  manifest  themselves 
is  in  a  gr?dual  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  pioperty  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  determined  by  this ; 
the  rule  of  appropriation  is  left  to  vary  with  circumstances, 
and  yet  the  position  of  non-combatants  and  others  in  enemy 
country  hos  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  prefeiable  mode. 
The  taking  of  private  pioperty  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  capture.  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  either  of 
taxation,   contribution,   appropriation,   or   confiscation.     The 


RIGHTS    REGARDING   PRIVATE   PROPERTY,  20I 

policy  of  modern  times,  as  just  mentioned,  has  been  to  estab- 
lish the  rule  thit  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  unHmited  range  of 
places  and  objects  that  would  be  open  to  the  military,  and 
the  moral  dangers  attending  se?rches  and  captures  in  house- 
holds and  among  non-combatants.  2 

The  rule  extends  to  cases  of  absolute  and  unqualified  con- 
quest. Even  when  the  conquest  of  a  country  is  confirmed  by 
the  unconditional  relinquishment  of  the  sovereignty  of  the 
former  owner,  there  can  be  no  general  or  partial  tiansmutation 
of  private  propei  ty  in  vii  tue  of  any  i  ights  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  that  the 
United  States  acknowledges  and  protects  in  hostile  countries 
occupied  by  them  religion  and  morality,  strictly  private  prop- 
erty, the  persons  of  the  inhabitants,  especially  those  of  women, 
and  the  sacredness  of  domestic  relations.  Offenders  against 
these  rules  are  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,  ejipecially  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 
will  give  receipts  for  it  with  a  view  to  possible  indemnity. 

203.  To  the  most  generous  construction  of  the  rule  that 
priv^ate  enemy  property  is  not  to  be  taken  without  compensa- 

i.  Bluntschli,  I.,  Sec.  144;  Woolsey,  5th  ed.,  Sec.  126.     2.  Wheaton. 
Part  IV.,  Sec.  355,  Dana's  note,  p.  171. 


202  MILITARY   GOVERNMENT   AND   MARTIAL   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  joutth,  namely,  if  the  private 
property,  like  cotton  during  the  American  Civil  War,  forms 
one  of  the  main  reliances  of  the  enemy  for  procuring  war -like 
resources.  2 

?o4.  "In  the  /ir«/  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  secured  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  Comtn.,  III.,  p.  161;  IV.,  pp.  246,  293.    -^ 


A 


RIGHTS    REGARDING   PRIVATE    PROPERTY.  203 

it  the  interest  of  all  to  discover  the  ofifenders  and  deliver  them 
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."  1  It  remains  to  be  seen  how  well 
the  parties  to  that  conference  observe  the  rules  they  adopted. 
Their  departure  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 
canied  off  as  security  against  the  interruption  of  railway  com- 
munication. It  is  questionable,  because  it  places  peaceful 
inhabitants  in  the  most  serious  danger,  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 
security  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.  1. 


204  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

cation.  It  is  one  of  the  common  practices  of  war.  The  in- 
stances are  numerous  during  the  Civil  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 
ofifer  many  opportunities  for  the  display  of  this  trait  of  human 
weakness.  The  surest  way  to  cuib  this  is  to  have  it  well 
understood  that  the  cloak  of  the  many  affords  no  immiriit} 
for  the  transgression.-  of  the  few. 

207.  In  the  fal^  of  i86i,  as  large  numbers  of  Union  refugees 
were  driven  from  districts  of  the  State  held  by  rebels  into  St. 
Louis,  Missouri,  the  commanding  general,  9  distinguished 
soldier,  lawyer,  and  writer  on  intern  itional  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  equally  authorized 
whether  leqiiired  during  the  progress  of  the  war  for  the  sus- 
tenance and  transportation  of  the  conqueror's  army,  or  after 
the  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  government  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. 


RIGHTS   REGARDING   PRIVATE   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  territory,  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.  515. 


2o6  JIILITARY   GOVERNMENT    AND    MAKTIAL   LAW. 

the  hands  of  a  ruthless  foe.  The  army  scattered  for  subsist- 
ence cannot  always  concentrate  for  action.  And  what  avail? 
it  that  the  army  hps  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  ciicum- 
stances  will  permit.     This  was  recommended  by  the  Brussels 
project  of  an  international  declaration  concerning  the  laws  and 
customs  of  war.  1     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 
u  ;  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  vvill  be  secure  from  pillage  and 
the    countrv    preserved    from    devastiti  .n.     The    American 
general- in-chief,  after  occupving  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,   4S1;    Appendix  III.     2.   Sec.    3,    Ait. 
XI.VII.,  G   O.  52,  A.  G.  O.,  1902. 


6 


RIGHTS    REGAKDING   PRIVATE   PROPERTY.  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  cit}  and 
municipal  governments,  were  Cacourr.gcd  to  remain  in  tire 
discharge  of  theii"  duties.  It  wis  rec:ognJzed  thai:  whi  e  pcr- 
formmg  their  functions  they  must  liave  pecuiiiary  irupport. 
Hence  every  precaution  w„p  taken  that  moderate  and  rea-son- 
ahle  srms  should  be  set  aside  for  this  purpose.  In  the  capital 
city  itself  i  considerable  sum  was  collected  in  lieu  of  pillage,  l 

The  magnanimity  of  this  victorious  commander  in  appor- 
tioning his  demands  on  a  conquered  people  according  to  their 
ability  to  meet  them,  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  Hke  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  a  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 
demands  of  the  times  have  thrown  into  tinanciai  straits.      To 


I.  Scott's  Autobiography,  pp.  558,  560,  582.     2.  Book  III.,  Chap.  9, 
Sec.  165. 


2o8  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

pay  the  contributions  requires  on  their  parts  great  pecuniery 
sacrifice  at  a  time  when  they  are  least  able  to  bear  it.  To  de- 
ui?nd  contributions  excessive  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  under  a  milder 
name.  Policy  and  the  dictates  of  humanity  require  that  in 
levying  contributions  as  generous  forbearance  should  be  shown 
as  is  compatible  with  the  unquestioned  rights  of  the  conqueror. 
Anything  beyond  this  is  unnecessary  ?nd  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 
pohcy  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  Ur.  Bluntschli  may  be  as- 
sumed to  set  forth  the  German  theory  on  the  interesting  subject 
of  contributions ;  we  say  theory,  because  from  the  accounts  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  may  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  by  the  customs  and  usages  of  war. 


RIGHTS    REGARDING    PRIVATE    PROPERTY.  209 

"The  proclamation  of  the  Crown  Prince  of  Prussia,  of  the 
20th  August,  1870,  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   GOVERNMENT   AND    MARTIAL   LAW. 

authority  contends,  has  a  right  to  take  only  upon  paying  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 
considerations  of  expediency  rather  than  upon  any  right  of  the 
conquered  to  demand  payment. 

214.  The  victor's  right  to  private  property  taken  on  the 
field  of  battle  cannot  be  questioned.  The  same  rule  applies 
with  almost  as  much  universality  in  case  a  fortress  or 
town  is  taken  by  storm.  1  "Property  taken  on  a  field  of  battle," 
says  the  Supreme  Court,  "is  not  usually  collected  until  re- 
sistance has  ceased,  but  it  is  none  the  less  on  that  account 
captured  property.  The  larger  the  field  the  longer  the  time 
necessary  to  make  the  collection.  By  the  battle  the  enemy 
has  been  compelled  to  let  go  his  possession,  and  the  conqueror 
may  proceed  with  the  collection  of  all  hostile  property  thus 
brought  within  his  reach  so  long  as  he  holds  the  field."  2  But 
the  right  to  private  property  taken  on  the  field  or  after  the 
successful  storming  of  a  place  must  be  carefully  distinguished 
from  the  right  to  unbridled  license.  It  is  necessary  to  dis- 
tinguish between  the  title  to  property  acquired  by  the  laws  of 
war  and  the  accidental  circumstances  attending  the  acquisi- 
tion. The  commander  who  permits  indiscriminate  pillage 
fails  in  his  duty.  The  taking  possession  of  property  should 
always  be  regulated  byorders  emanating  from  proper  atithority. 
It  is  frequently  true,  especially  after  the  successful  assault  of 
the  enemy's  stronghold,  that  this  is  not  done.  Justification 
is  never  attempted  among  civilized  nations,  but  the  excuse  is 
often  made  that  the  general  cannot  restrain  his  troops.  To 
this  it  is  sufficient  answer  that  he  who  cannot  control  an 
army  is  not  fit  to  command  it.  The  plunder,  October,  i860, 
of  the  Emperor  of  China's  summer  palace  by  the  troops  of 
France  and  England  affords  an  illustration  of  the  insensibility 
of  the  most  refined  nations  in  this  regard,  although  this  has 

I.  Boyd's  Wheaton,  p.  411;  Vattel,  Book  III.,  Chap.  9,  Sec.  164; 
Halleck,  Chap.  19,  Sec.  19.     2.  92  U.  S.,  p.  193. 


RIGHTS    REGARDING   PRIVATE   PROPERTY,  211 

been  explained  as  a  justl}'  letaliatory  measure  caused  by  the 
barbarous  treai^hei  y  of  the  Chinese. 

215.  Of  modern  war^  that  m  the  Spanish  Peninsula  fur- 
nishes the  most  numerous  instances  of  the  sacking  ot  cities  ?nd 
the  plunder  of  defeated  armies  by  troops  in  whom  the  instinct 
of  men  had  apparently  been  wholly  supplanted  by  the  ferocity 
of  maddened  beasts  of  prey.  Nor  were  these  scenes,  disgrace- 
ful alike  to  rational  beings  and  the  Christianity  of  which  they 
boasted,  confined  to  any  district  or  their  perpetrators  to  any 
army 

Witness  Oporto,  Tarragona,  Ciudad-Rodrigo,  Badajos! 
The  pen  of  the  historian  of  that  protracted  struggle  has  cast  a 
luster  over  the  events  which  he  commemorates,  but  humanity 
turns  from  the  contemplation  of  such  scenes  with  horror,  while 
the  profession  of  arms  repudiates  with  indignation  such  prac- 
tices which  tarnish  the  glory  of  the  most  valiant,  self-sacrificing 
deeds  and  discredits  the  claim  that  civilization  has  nobly  mit- 
igated the  severities  of  war.  1 

216.  The  fourth  exception  to  the  rule  that  private  enemy 
property  is  not  liable  to  seizure  by  a  belligerent  power  operates 
to  forfeit  all  private  property  which  contributes  directly  to 
the  strength  of  the  enemy  by  enabling  him  to  secure  supplies 
for  carrying  on  the  war.  This  was  preeminently  tne  case  with 
cotton  during  the  Civil  War.  "Being  enemy's  property,"  said 
the  Supreme  Court,  "cotton  was  liable  to  capture  and  confisca- 
tion by  the  adverse  party."  It  is  true  that  this  rule  as  to 
property  on  land  has  received  very  important  qualifications 
from  usage  from  the  reasoning  of  enlightened  publicists  and 
from  judicial  decisions.  It  may  now  be  regarded  as  substan- 
tially restricted  to  special  cases  dictated  by  the  necessary  op- 
erations of  war,  and  as  excluding,  in  general,  the  seizure  of  the 
private  property  of  pacific  persons  for  the  sake  of  gain.  The 
commanding  geneial  may  determine  in  what  special  cases  its 
more  stringent  application  is  required  by  military  exigencies, 

I.  Napier,  Book  VI.,  Chap.  6;  ibid.,  p.  13,  Chap.  5;  ibid.,  p.  16,  Chap. 
2;  ibid.,  p.  1 6,  Chap.  5. 


212  MILITARY   GOVEKNMENT   AND    MARTIAL   LAW. 

while  considerations  of  public  policy  and  positive  provisions 
of  law  and  the  general  spirit  of  legislation  must  indicate  the 
cases  in  which  its  application  may  be  properly  denied  to  the 
property  of  non-combatant  enemies.  In  the  case  before  us 
the  capture  seems  to  have  been  justified  by  the  peculiar  char- 
acter of  the  property  [cotton]  and  by  legislation.  It  is  well 
known  that  cotton  constituted  the  chief  reliance  of  the  rebels 
for  means  to  purchase  the  munitions  of  war  in  Europe.  "It 
is  matter  of  history  that  rather  than  permit  it  to  come  into 
the  possession  of  the  national  troops  the  rebel  government  has 
everywhere  devoted  it,  however  owned,  to  destruction.  The 
value  of  that  destroyed  at  New  Orleans,  just  before  its  capture, 
has  been  estimated  at  eighty  millions  of  dollars.  *  *  * 
The  rebels  regard  it  as  one  of  their  main  sinews  of  war,  and  no 
principle  of  equity  or  just  policy  required,  when  the  national 
occupation  was  itself  precarious,  that  it  should  be  spared  from 
capture  and  allowed  to  remain  in  case  of  the  withdrawal  of 
the  Union  troops  an  element  of  strength  to  the  rebellion. 
And  the  capture  was  justified  by  legislation  as  well  as  by 
public  policy."  1 

Cotton  was  a  security  which  the  insurgents  offered  for  the 
payment  of  their  debts.  Upon  it  they  relied  for  their  influence 
abroad.  To  obtain  it  forced  contributions  were  exacted  from 
its  owners.  From  time  to  time  in  the  progress  of  the  war  it  was 
found  upon  the  enemy's  territory  occupied  by  the  military 
forces  of  the  United  States.  While  when  so  found  it  might 
have  been  owned  by  non-combatant  enemies,  and  in  that  sense 
been  private  property,  it  was  in  fact  under  the  circumstances 
at  least  semi-public.  If  left  undisturbed,  and  the  enemy 
should  repossess  themselves  of  the  territory,  it  would  again 
be  placed  where  it  might  strengthen  the  rebellion.  Its  capture 
was,  therefore,  legitimate;  not  for  booty,  but  to  cripple  the 
enemy.  2 


I.  2  Wallace,  pp.  419-20.     2.  22  Wallace,  p.  94;  9  Wallace,  p.  67 ;   13 
Wallace,  p.  137. 


EIGHTS   REGARDING   PRIVATE   PROPERTY.  21  3 

Nor  does  the  exception  apply  to  cotton  alone.  The  principle 
embraces  any  property  w^hich,  owing  to  its  peculiar  value,  be- 
comes a  great  resource  whence  the  enemy  draws  the  means  of 
maintaining  the  war.  In  the  nature  of  things  it  cannot  be 
confined  to  any  particular  kind  of  property.  The  true  test  is 
not  what  particular  species  it  may  be,  but  its  value  to  the 
enemy.  If  for  any  cause  it  is  to  an  unusual  degree  the  enemy'fc 
source  of  strength,  it  may  be  appropiiated.  It  might  be  said 
that  all  private  property  adds  in  some  measuie  to  the  enemy's 
strength,  and  so  might  be  brought  within  the  rule.  But  as 
before  pointed  out,  the  great  mass  of  private  property,  the 
owners  of  which  have  not  by  their  conduct  rendered  it  for- 
feitable, is  under  modern  practice  exempted  from  seizure 
without  some  compensation.  To  property  of  this  description 
the  rule  under  discussion  has  no  applicability.  But  it  does 
embrace  property  of  what  nature  soevei  it  may  be,  which 
owing  to  its  peculiar  predica,ment  with  reference  to  the  enemy 
becomes  in  a  marked  manner  the  foundation  upon  which  his 
material  strength  is  built,  his  credit  established,  and  thence 
means  supplied  for  prosecuting  hostilities. 

217.  Not  only  may  enemy  property  be  appropriated,  but 
under  some  circumstf  nces  it  may  be  destroyed,  regardless  of 
the  suffering  thus  entailed.  Here,  as  in  the  other  case,  the 
modern  rule  is  that  it  is  not  lawful  to  impose  unnecessary 
hardships.  What  this  authorizes  is  a  matter  wholly  within 
the  breast  of  the  commander.  1 

Within  the  limitations  of  this  rule  the  right  to  destroy  can 
not  be  controverted.  It  is  as  well  established  as  any  other 
rule  of  war.  If  it  be  lawful  to  take  away  the  property  of  an 
enemy  in  order  to  weaken  or  punish  him,  the  same  motives 
justify  us  in  destroying  what  we  cannot  conveniently  carry 
away.  Thus  we  waste  a  country  and  destroy  the  provisions 
and  forage  that  the  enemy  may  not  find  a  subsistence  there; 
we  sink  his  ships  when  we  cannot  take  them  or  bring  them 

I.  Bluntschli,  I.,  par.  153;  Twiss,  Law  of  Nations,  p.  125;  Manning, 
p.  186;  Hall,  pp.  489-492. 


214  MILITARY    GOVERNMENT   AND    MARTIAL    LAW. 

off.  All  this  tends  to  promote  the  main  objects  of  the  war,  but 
such  measures  are  only  to  be  pursued  with  moderation,  and  ac- 
cording to  the  exigency  of  the  case.  This  accords  with  uni- 
versal practice.  If  such  destruction  be  necessary  in  order  to 
cripple  the  operations  of  the  enemy  or  to  insure  our  success,  it 
is  justifiable.  Thus  if  we  cannot  remove  captured  property 
we  may  destroy  it,  but  not  in  mere  wantonness.  We  may 
destroy  provisions  and  forage  in  order  to  cut  off  the  enemy's 
subsistence,  but  we  cannot  destroy  vines  and  cut  down  fruit 
trees  without  being  looked  upon  as  barbarians. 

218.  In  some  instances  the  right  of  an  rctive  belligerent  to 
destroy  enemy  property  has  been  carried  far  beyond  this. 
Extensive  territories  have  been  ravaged,  towns  and  villages 
sacked.  This  may  be  justified:  Ft>.y/,  as  an  act  of  retaliation, 
when  the  enemy,  upon  our  own  territory,  has  adopted  a  system 
of  spoliation.  Thio  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 was  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  measures,  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 


RIGHTS    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  a,s  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.  186. 


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.  Every  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  ar<^  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  18 12,  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. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  21 J 

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   GOVERNMENT   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  Confederr.te  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  our  own  subjects,  still,  when  a  nation  is  either  driven  to 
extremities  in  the  prosecution  of  a  war,  or  for  any  reason  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  during  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. 


RIGHTS   REGARDING   PRIVATE   PROPERTY.  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  fuch  property,  whatever  its  nature,  had 
violated  established  Ihw,  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.  i 

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  regarded  as  sacred  during  war, 
and  considers  them  r.s  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."  4  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. 


2  20  MILITAKY   GOVERNMENT   AND   MARTIAL   LAW. 

tenance  to  the  assumption  of  the  creditor  that  the  faith  of  the 
State  was  impliedly  pledged  to  him  to  that  effect."  i  The  Con- 
federate confiscation  acts  of  6th  August,  1861,  expressly  ex- 
cepted from  seizure  pubhc  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  funds  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  occurring  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, 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  22  1 

necessarily  those  governing  the  appropriation  of  enemy  property 
in  the  latter. 

226.  The  generous  spirit  which  now  characterizes  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. 

First,  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 

n  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.  igG;  Halleck,  Chap.  19,  Sees.  7 
and  12;  92  U.  S.,  p.   195;  9  Wallace,  p.  540.     5.   Manning,  p.  188. 


22  2  MILITAKY   GOVERNMENT   AND   MAETIAL   LAW. 

of  its  situation,  and  is  subject  to  seizure  without  inquiring  re- 
garding the  nationf.Hty,  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-fourhourss 
is  not  in  accord  with  eitherthepractice  orthe  better  authorities.  4 
"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  capture  of  the  place  where  it  happens  to  be.  ex 
cept  upon  actual  seiziire  in  obedience  to  the  orders  of  the  com- 
manding general."  5 

228.  The  question  as  to  just  what  is  necessary  to  vest  per- 
fect title  in  the  conqueror  to  movable  private  property  on  1  md 
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,  I,  p.  108. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  2  2.^ 

eign's  power,  it  is  undoubtedly  his  duty  to  restore  them  to 
their  former  condition,  to  estabhsh  the  persons  in  their  rights 
and  obb'gations,  to  give  back  the  effects  to  the  owners — in  a 
word,  to  replace  everything  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  liminimn 
could  not  apply.  2  The  exception  just  mentioned  is  based  on 
public  policy;  no  nation  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  phinest  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  importr.nt  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,  namel}" — "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  buying.  Apposite  to  this,  Grotius  quotes  from  De 
Thou  the  instance  of  the  town  of  lyierre  in  Brabant,  which  hav- 

I.  Vattel,  Book  III.,  Chap.  14,  Sec.  205.  2.  Manning,  p.  190.  3. 
Halleck,  Chap,  iq,  Sec.  5.     4.   U.  S.  v.  Padelford,  9  Wallace,  p.  541. 


224  MILITARY   GOVEENMENT   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  off  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  rulei> 
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  difficulty  in  recognizing  his 
effects,  nor  is  presumed  to  have  relinquished  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  difficulty  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.  1.,  p.  108;  Vattel,  Book 
III.,  Chap.  14,  Sec.  209. 

Nore. — In  considering  the  effects  of  post  Uminium  in  connection  with 
military  government,  Mr.  Hall  reduces  them  to  three;  (:)  Certain  lim- 
itations to  the  operation  of  the  right  of  post  liminiuvi  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  occupied  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  mihtary  government 
had  ceased.  Political  acts  by  the  invader  fall,  of  course,  with  his  con- 
trol.    So  do  all  punitive  sentences  for  acts  which  were  simply  prejudicial 


J 


KIGHTS    REGAKDING   PKIVATE   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  fahl/  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  apptutenant  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  ordii..ary  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  offences 
against  municipal  law. 

Upon  the  second  poiut  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  liminium  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  liminium  properly  would  restore 
the  latter  to  its  original  jurisdiction.  But  if  military  has  by  any  means 
become  permanent  government,  then  it  »voiild  be  for  the  third  power  to 
decide  for  itself  whether  it  would  admit  the  original  State  to  resume  its 
sway. — [International  Law,  pp.  450-5-?.] 

I.  Wheaton,  Dana's  note,  169,  pp.  433,  439. 

15— 


226  MILITAKY   GOVERNMENT   AND   MARTIAL   LAW. 

Of  these  incorporeal  rights  it  may  be  remarked  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  Court,  "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. 


RIGHTS    REGARDING    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.  Legal  proceedings  in  courts  established  by  or  permitted 
to  perform  their  functions  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.  [439.     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.  Lasere,  a  resident  of  New  Or- 
leans, was  one  year,  after  the  capture  of  that  city  by  the  Fed  - 


RIGHTS   REGARDING  PRIVATE  PROPERTY.  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  in  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  judgment  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  ta 
the  plainest  principles  of  reason  and  justice,"  said  the  cotut^ 
"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  an5rthing 
to  protect  his  rights."  1 

Closely  allied  with  the  cases  of  Nelson  and  Lasere  was  that 
of  McVeigh  v.  United  States,  wherein  the  Supreme  Cotut,  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  jruisprudence  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  forfeittue  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, 

I.   17  Wallace,  p.  437.      2.   11  Wallace,  p.  267. 


230  MILITARY    GOVIOKNMENT    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  f-ttorney  for 
the  United  States,  the  claim,  answer,  and  c.ppearance  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  grr.nted 
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, 
1898,  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  disloytlty. 
The  military  governor  joined  in  the  view  that  the  Cortes  were 
not  entitled  to  restitution  under  the  circumstances,  r.nd  with- 
held it.  The  Attorney-General,  however,  took  a  diff"erent 
view,  holding  that  the  "milita,ry  authority  of  the  United  States 
was  under  no  obligation  to  sustain  or  support  a,rbitrary  pro- 
ceedings for  confiscation  of  property  of  Spanish  subjects  on 
the  ground  of  disloyalty,  and  when  proceedings  taken  for  that 


EIGHTS    KEGARDING   PRIVATE   PROPERTY.  23 1 

purpose  have  resulted,  cither  by  abandonment  or  otherwise, 
in  the  original  owners  coming  again  into  possession  of  theii 
property."  1 

234.  As  to  immovable  ptivate  property  in  territory  subject 
to  military  government  the  same  rule  applies  as  to  movable  prop- 
erty. The  mere  fact  of  military  occupation  doe-  not  affect  it. 
If  the  conqueror  proposes  to  appropriate  either  the  property 
itself,  or  the  rents,  profits,  or  other  incorporeal  interests  issuing 
out  of  or  attached  thereto,  it  remains  for  him  to  exercise  this 
hir  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  partico  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  MILITARY   GOVERNMENT   AND   MARTIAL  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  until  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 
already  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  release  the 
latter  from  his  obligation.  In  spite  of  such  payment,  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  ptu-chase 

I.  Harrison  i).  Myer,  92  U.  S.,  iii;  Twiss,  Law  of  Nations,  p.  126. 
a.   I  Peters,  p.  542.     3.  Manning,  pp.  188-89.     4-  Manning,  p.  185. 


RIGHTS    REGARDING   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  returned  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  piu-chaser.  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  add  to  these  rights ;  at  most  it  can  only  confirm  that  which 
the  conqueror  already  possessed.  This  being  so,  the  conqueror 
having  disposed  of  all  his  rights  under  conquest  and  rxquired 
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 t;.  Lynd,  106  U.  S.,  317;  Young  i;  U.  S..  97  U.  S.,  p.  60.     2.  See 
the  Astrea,  1  Wheaton,  125. 


234  MILITARY    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  further  risks;  and  if 
temporary  conquest  settles  into  established  government,  all 
the  rights  they  have  acquired  will  be  confirmed.  Subjects  of 
the  conqueror  may  become  purchasers  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  purchaoe  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    REGARDING   PRIVATE   PROPERTY.  235: 

240.  The  Roman  law,  often  asserted  with  unrelenting 
severity,  was  to  take  all  property,  both  personal  and  real,  from 
the  vanquished.  1  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 
vanquished  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  dividing  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  siu-ely  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,  vSecs.  346,  347.  2.  Commentaries,  2,  r..  4t<.  3.  WIipj- 
ton,  Part  IV.,  Sec.  346.      4.  7  Peters,  pp.  S6,  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  natural  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  measures 
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  Confederate  Government   were  passed  upon 

I.  Fifth  Robinsons  Reports,  p.  106.  2.  Chase's  Decisions,  p.  ni6. 
3.  9  Wheaton,  pp.  267,  284:  4  Cr.,  p.  415;  6  Cr.,  p.  2S6;  3  Dal!,  i;  i 
Wheaton,  p.  300;  4  Wheaton,  p.  453;  11  Wallace,  p.  312. 


RIGHTS   REGARDING   PRIVATE   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  court  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    GOVEUNMENTT    AND   MARTIAL    LAW. 

The  guilty  knowledge  of  the  seller  vitiated  the  transaction.  1 
In  another  case  a  loyal  resident  of  a  loyal  State,  acting  under 
a  pressure  of  overwhelming  necessity,  left  certain  personal 
property  within  the  insurrectionary  district,  where,  pursuant  to 
the  confiscation  acts  of  the  rebel  government,  it  was  sold  and 
the  proceeds  turned  into  the  Confederate  treasury.  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  purchase  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;    11 1    U.  S.,  p.  51.      3.   8 
Wallace,  i. 


EIGHTS    REGARDING    PRIVATE   PROPERTY.  239 

was  illegal  because  payment  wr,s  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  w^as  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  18 14,  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  in  lawful 


240  ]\[ILITAEY   GOVERNMENT   AND   MAKTIAL   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  seveial  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  suppoit  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  successfully  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  Laws,  Sec.  253.  2.  97  U.  S.,  p.  454;  12  Wallace, 
p.  347;  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. 


RIGHTS    REGARDING   PRIVATE   PROPERTY.  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 ;  1  and  on  the  other  hand,  as  we  have  seen, 
that  property  of  loyal  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  insur- 
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,  loyalty  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 

I.  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 
Bagalav,  5  Wallace,  p.  337. 

16— 


242  MILITARY   GOVERNMENT   AKD   MARTIAL   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  forth 
to  save  him  harmless  in  his  property  from  the  effects  of  malig- 
nant attacks  of  the  temporarily  dorninant,  but  now  vanquished 
enemy. 

245.  Some  of  the  most  interesting  cases  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  equity  within  the  meaning  of  Article  III.  of  the 
Constitution,  i 

It  was  held  that  licenses  granting  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. 


RIGHTS  REGARDING  PRIVATE  PROPERTY.         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.  2 

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.^ 

I.  22  Opinions  Attornej^s-General,  p.  548;  23  ibid.,  pp.  226,  562;  20 
Wallace,  p.  387;  Magoon,  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.  41O 


CHAPTER  XL 
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  militarygovernment  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  all  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  capture  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.  Vattel,  Book  III.,  Chap.  13,  Sec.  200;  Manning,  p.  182;  American 
Instructions,  Sec.  11,  clause  i.     2.  Dana's  Wheaton,  note  169. 

244 


RIGHTS   REGARDING   PUBLIC   PROPERTY.  245 

249.  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  sufficiently  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.  1  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 

1.  Vattel,  Book  III.,  Chap.  13,  Sec.  196  2.  Vattel,  Book  III.,  Chap. 
14,  Sec.  209;  Halleck,  Chap.  19,  Sec.  7;  Manual,  p.  2,'^oetseq. 


% 


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- 
porep,l  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- 

I.  Mantling,  pp.  182-83.  2.  Bluntschli,  I.,  Sec.  149.  3.  Woolsey, 
Sac.  153.      4.  95  U.  S.,  p.  187,    Wheaton,  Dana's  note,  p.  169. 


RIGHTS   REGAEDING   PUBLIC   PROPERTY,  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  that  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  valid ;  in  other  words,  that 
it  was  made  in  good  faith  to  the  de  facto  power  authorized  by 

I.  Chap.  32,  Sec.  27. 


248  MILITARY   GOVEENMENT   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  liable  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  Fbide  the  final  results  of  the 
struggle,  m?king  payment  to  whoever  retains  the  sovereignty. 

The  principle  here  involved  is  well  illustrated  in  the  case  of 
the  electorate  of  Hesse  Cassel,  which  giew  out  of  N ipoleon'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  Westphalia,  Count  Von  Hahn,  of  the 
duchy  of  Mecklenburg,  among  many  other  vState  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 

1    Cobbett,  p.  153,  quoting  Phil.  Int.  Law,  Part  XII..  Chap.  6. 


RIGHTS  REGAEDING  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  jurists  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-established ;  (3)  Private 
rights    acquired    stand;     (2)  Dispositions    of    State  property 


250  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

made  continue  binding;  (5)  The  restored  State  ought  not  to 
make  retrospective  use  of  its  authority. 

254.  The  PhiHppine  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,  Ivuzon,  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  furnished  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 — 
IvUcban,  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.  i 

I.  Magoon,  p.    261. 


RIGHTS   REGARDING   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 
modern  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  1 8 1 2  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  1796,  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.  161.  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 
have  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  leasi  affect  their  sufficiency  and 
validity,  for  this  would  put  an  end  to  all  certainty  as  to  the 
results  of  the  armed  conflicts  of  nations,  as  no  vanquished 
party  ever  regards  the  cause  of  the  enemy  as  other  than  un- 
righteous. But  in  fact  very  many  art  treasures  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 policy;  yet,  without  enteiing  into  the  question  of 
motives,  their  position  he  s  had  the  support  not  only  of  jurists 
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. 


I 


RIGHTS   REGARDING  PUBLIC   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  18 15 
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  Samuel  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  stipulations ; 
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.  W^S    M 

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  churches  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,  de- 

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   REGARDING   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 
England.  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  expedition  deliberately  and  principally 
directed  against  places  of  the  Government,  halls  of  legislation, 
tribunals  of  justice,  repositories  of  the  muniments  of  property 
and  of  the  records  of  history,  objects  among  civilized  nations 
exempt  from  the  ravages  of  war  and  secured  as  far  as  possible 
even  from  its  accidental  operation,  because  they  contribute 
nothing  to  the  means  of  hostility,  but  are  consecrated  to  the 
purposes  of  peace  and  minister  to  the  common  and  perpetual 
interests  of  all  human  society,  i 

It  was  attempted  to  justify  this  conduct  on  the  principle 
of  retaliation.  It  had  happened  that  at  St.  David's,  Upper 
Canada,  some  stragglers  from  the  American  Army  had  wan- 
tonly burned  some  buildings,  for  not  preventing  which,  how- 
ever, the  American  commander  there  had  been  summarily 
dismissed;  a  similar  occurrence  had  happened  at  Long  Point 
in  the  same  province,  which  was  disavowed  by  the  American 
Government  and  the  conduct  of  the  commander  subjected 
to  a  military  inquiry. 

Finally,  the  village  of  Newark,  adjoining  Fort  George,  was 
destroyed  for  what  appeared  to  be  military  reasons  and  sanc- 
tioned on  that  ground  by  the  American  officers ;  still  this,  too, 
was  disapproved  by  the  Government^  which  announced  its  pur- 

I.   WheatOTi,  Sec.  351. 


256  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

pose  to  wage  war  in  a  manner  most  consonant  to  the  principles 
of  humanity  and  to  those  friendly  relations  which  it  was  de- 
sirable to  preserve  between  the  two  nations  after  the  restoration 
of  peace.  It  was  under  color  of  retaliation  for  these  acts  that 
the  British  government  set  on  foot  a  crusade  against  all  private 
property  and  towns  situated  on  or  adjacent  to  Chesapeake  Bay, 
culminating  in  the  destruction  of  public  buildings  at  the  capi- 
tal. Referring  to  this  claim,  the  distinguished  statesman  be- 
fore quoted  remarked  that  it  seemed  an  aggravation  of  this  atro- 
cious measure  that  ministers  had  endeavored  to  justify  the  de- 
struction of  a  distinguished  capital  as  a  retaliation  for  some 
violences  of  inferior  American  officers  unauthorized  and  disa- 
vowed by  their  Government.  To  make  such  retaliation  just 
there  must  alwa)'-s  be  some  proof  of  the  outrage;  in  general, 
also,  sufficient  evidence  that  the  adverse  government  had  re- 
fused to  make  due  reparation  for  it ;  and,  lastly,  some  propor- 
tion of  the  punishment  to  the  offence.  Here  there  was  no 
proof  of  refusal  to  repair,  and  demonstration  of  the  excessive 
and  monstrous  iniquity  of  what  was  falsely  called  retaliation. 
The  destruction  of  the  Capitol,  the  President's  House,  and 
other  public  buildings  could  not  but  be  considered  by  the  whole 
world  as  a  most  unjustifiable  departure  from  the  laws  of 
civilized  warfare.  1 

The  spectacle  of  the  national  capital  being  captured,  pil- 
laged, and  burned  by  a  small  force  of  the  enemy  causes  the  blush 
of  shame  and  indignation  to  mount  to  the  cheek  of  every  patri- 
otic American.  Yet  the  incident  is  not  without  its  important 
lessons.  Errors  of  the  past  cannot  be  remedied,  but  something 
may  be  gleaned  therefrom  to  guide  us  in  the  future.  To  con- 
tent ourselves  with  inveighing  against  the  enemy's  barbarity  is 
the  height  of  folly;  it  will  only  excite  contempt,  and,  should 
occasion  again  offer,  invite  a  repetition  of  the  atrocities.  And 
first  it  is  seen  how  easy  it  is  for  the  thoughtless  or  unauthor- 
ized conduct  of  even  inferior  officers  to  lead  to  consequences  of 

I.  Hansard's  Parliamentary  Debates,  33,  pp.  526-27;  Wheaton,  Sec. 
351- 


RIGHTS    REGARDING   PUBLIC    PROPERTY.  257 

gravest  moment,  and  the  necessity  at  all  times  of  maintaining 
a  strict  military  discipline  and  restraining  destruction  of  prop- 
erty to  what  is  strictly  justifiable  under  the  laws  of  war.  No 
doubt  that  the  British  Government  in  carrying  the  ravages  of 
their  armed  forces  against  non-combatants,  private  property, 
and  public  buildings  devoted  to  civil  purposes,  gave  vent  to  a 
consuming  and  deep-seated  hatred  of  the  American  people; 
but  it  should  not  be  forgotten  that  the  illy-considered  conduct 
of  inferior  officers  in  seemingly  unnecessarily  burning  property 
on  enemy  territory  furnished  the  specious  pretext  for  this  un- 
justifiable conduct.  Nothing  more  certainly  stirs  up  an  im- 
placable spirit  of  revenge  than  inexcusable  destruction  of 
property  in  a  country  temporarily  occupied  by  the  enemy. 
Commanders  should  remember  this,  because  immediate  and 
temporary  surroundings  may  lead  to  a  false  feeling  of  security. 
The  occupied  territory  being  prostrated,  no  resistance  can  be 
offered  to  these  ill-judged  measures.  The  thirst  for  vengeance, 
however,  is  not  quenched,  and,  should  opportunity  anywhere 
offer,  may  be  slaked  by  scenes  of  desolation,  limited  only  by 
the  destructive  powers  of  the  enemy.  Another  lesson  to  be 
learned  from  the  capture  and  desecration  of  the  national 
capital  is  the  grave,  not  to  say  unpardonable,  error  of  permit- 
ting that  city  to  be  so  poorly  defended  that  its  seizure  under 
circumstances  similar  to  those  formerly  attending  that  event 
is  possible.  And  yet,  should  war  break  out  with  an  enter- 
prising, well-equipped,  thoroughly-trained  enemy,  backed  by 
a  powerful  navy,  what  is  to  prevent  a  repetition  of  the  humil- 
iating spectacle?  Does  not  the  country  owe  it  to  itself  to 
render  that  city — built  up  and  beautified  with  every  care  and 
lavish  expenditure  of  treasure,  the  repository  of  so  much  that 
is  valuable  and  interesting  in  the  realms  of  politics,  science, 
literature,  history,  and  art — secure  from  the  successful  attack 
of  a  predatory  column  of  the  enemy? 

260.  While  wanton  destruction  of  property  of  the  classes 
mentioned  is  thus  reprobated,  stilLdestruction  possibly  may  be 
fully  justified.     The  milder  is  the  more  pleasing  rule ;    but  if  it 
—17— 


258  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

became  necessary  to  destroy  works  of  art,  or  public  buildings 
devoted  to  civil  purposes,  or  others  of  the  classes  usually  ex- 
empted from  such  fate,  in  order  successfully  to  carry  on  the 
operations  of  war,  to  advance  the  works  in  a  siege,  or  stay  the 
advance  of  the  enemy,  the  right  to  take  the  step  cannot  be  con- 
troverted. 1  The  sovereign  of  the  country  or  his  general  makes 
no  scruple  to  destroy  them  under  such  circumstances.  The 
governor  of  a  besieged  town  sets  fire  to  the  suburbs  that  they 
may  not  afford  a  lodgment  to  the  besiegers.  Nobody  blames 
the  commander  who  lays  waste  gardens,  vineyards,  or  orchards 
for  the  purpose  of  encamping  on  the  ground,  and  throwing 
up  an  entrenchment.  If  any  beautiful  production  of  art  be 
thereby  destroyed,  it  is  an  accident,  an  unhappy  consequence 
of  the  war ;  and  the  general  will  not  be  blamed  except  in  those 
cases  where,  without  sacrificing  any  military  advantage,  he 
might  have  pitched  his  camp  elsewhere  without  the  smallest 
inconvenience  to  himself.  So  in  the  bombardment  of  places  it 
is  difficult  to  spare  any  particular  structure.  Every  siege  gives 
evidence  of  this.  To  destroy  a  city  with  all  it  contains  is 
indeed  an  extreme  measure,  not  to  be  resorted  to  except  for 
cogent  reasons,  yet  it  is  perfectly  justifiable  when  no  other 
method  suffices  to  reduce  the  place  and  this  reduction  becomes 
essential  to  the  successful  prosecution  of  the  war.-  These  are 
elementary  principles.  The  enemy  is  not  permitted  to  gain  an 
advantage,  because  to  prevent  it  the  destruction  of  objects  of 
art  or  palaces  of  learning  may  thereby  ensue.  The  wise  com- 
mander inquires  only  what  is  necessary  to  attain  success.  All 
other  considerations  give  way  to  this.  The  responsibility  of 
acting  rests  upon  him,  and  he  cannot  divest  himself  of  it. 
His  authority  is  commensurate  with  his  obligations.  The  only 
restriction  placed  upon  him  is  that  he  will  not  permit  such 
destruction  or  demolition  of  property  unless  it  be  necessary.  3 

I.  97  U.  S.,  pp.  6o6,  622;  American  Instructions,  Sec.  2  claiise^S- 
2.  Bluiitschli,  Laws  of  War,  I.,  Sec.  7.  3.  Instructions  U.  S.  Armies,  Sec. 
2,  Art.  35;  Hague  Conference,  Sec.  2,  Chap,  i,  Art.  27  (G.  O.  52,  A.  G.  0.» 
1902). 


RIGHTS   REGARDING    PUBLIC    PROPERTY.  259 

261.  The  commander  in  territory  militarily  occupied  should 
preserve  from  destruction  or  hostile  conversion  State  papers, 
judicial  and  legal  documents,  and  indeed  all  papers  necessary  or 
convenient  either  in  the  affairs  of  government  or  securing  in- 
dividuals in  their  titles  to  property.  Historical  records  should 
have  equal  protection  and  immunity.  The  commander  while 
he  is  in  possession  of  a  town  or  district  has  a  right  to  hold  such 
papers  and  records  and  to  use  them  in  carrying  on  his  govern- 
ment; in  fact,  it  is  his  duty  to  do  this ;  but  when  the  tempora- 
rily deposed  State  returns  to  possession,  either  during  the  war 
or  as  a  condition  of  peace,  such  papers  should  be  returned  to 
the  authorities  from  whom  they  were  taken. i  They  adhere  to 
the  government  of  the  place  or  territory  to  which  they  belong, 
and  should  always  be  transferred  with  it.  To  destroy  or  with- 
hold them  would  be  an  act  of  vandalism.  The  reason  of  this 
rule  is  manifest.  Their  destruction  would  not  operate  to  pro- 
mote in  any  degree  the  object  of  the  war,  but  on  the  contrary 
would  produce  an  animosity  and  irritation  which  would  extend 
beyond  the  war.  It  would  inflict  an  unnecessary  injury  upon 
the  conquered  without  any  benefit  to  the  conqueror.  Such 
archives,  papers,  and  records  often  constitute  the  basis  and 
evidence  of  private  property,  and  to  make  way  with  them 
would  be  to  inflict  useless  hardships ;  in  other  words,  it  would 
be  an  injury  done  in  war  beyond  what  necessity  requires,  and, 
therefore,  illegal,  impolitic,  and  cruel.  The  same  reasons  apply 
to  carrying  them  off  and  withholding  them  from  their  proper 
owners  and  legitimate  use.  2 

262.  Second,  with  regard  to  immovable  property  of  the 
deposed  State:  Here  no  rights  accrue  to  the  belligerent  occu- 
pier beyond  what  he  can  gather  to  himself  by  superior  force. ^ 
This  rule  limits  his  proprietary  rights.  What  he  can  reduce 
into  his  possession  and  retain  is  his  own.  But  as  his  occupa- 
tion is  subject  to  the  chances  of  war,  so  is  his  title  to  what  he 

I.  Twiss,  Law  of  Nations,  p.  128;  Manning,  p.  188.  2.  Halleck, 
Chap.  19,  Sec.  9.     3.  Twiss,  Law  of  Nations,  p.  126 


26o  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

cannot  remove.^  He  therefore  acquires  no  complete,  valid, 
and  indefeasible  title  to  such  property  by  virtue  of  military 
occupancy  with  full  power  of  alienation. 

The  right  of  the  commander,  subject  to  superior  authority 
and  the  policy  adopted  by  his  government,  to  alienate  immov- 
able property  of  the  enemy  State  is  not  denied.  The  necessity 
of  self-preservation,  and  the  right  to  punish  an  enemy  and  to 
deprive  him  of  the  means  of  injuring  us  by  converting  those 
means  to  our  own  use  against  him,  constitute  the  foundation 
on  which  rests  the  belligerent  right  to  enemy  property  of  any 
kind.  Between  movable  and  immovable  property  reason 
makes  no  distinction  in  this  regard.  The  right  to  deprive  the 
enemy  of  all  property  w^hich  adds  to  our  warlike  resources 
and  diminishes  his  is  perfect.  It  follows  that  by  the  just  rules 
of  war  the  conqueror  has  the  same  right  to  use  or  alienate  the 
public  domain  of  the  conquered  or  displaced  government 
that  he  has  to  use  or  ahenate  its  movable  property.  2  The  title 
of  the  alienee,  however,  as  before  pointed  out,  due  to  the  prin- 
ciple of  post  liminium,  would  be  very  different  in  the  two  cases. 

The  purchaser  of  immovable  enemy  public  property  takes 
it  at  the  risk  of  being  evicted  by  the  original  owner  should  he 
be  restored  to  his  possessions.  Subjects  of  the  conqueror  pur- 
chase at  the  risk  of  ouster  only  in  case  of  such  restoration ; 
while  on  the  part  of  subjects  of  the  temporarily  displaced  gov- 
ernment such  conduct  is  likely  to  be  regarded  by  their  perma- 
nent sovereign  as  recreancy  to  their  true  allegiance ;  and  neu- 
trals are  liable  to  be  considered  as  thereby  making  themselves 
parties  to  the  war,  and  if  they  endeavor  to  retain  their  purchase 
would  find  themselves  involved  in  it.  Thus  Frederick  I., 
King  of  Prussia,  cast  his  fortunes  with  the  enemies  of  Sweden 
when  he  received  Stettin  from  the  hands  of  the  King  of  Poland 
and  the  Czar  under  the  title  of  sequestration. 

263.  No  rents,  taxes,  or  other  revenues  derivable  from 
property  of  any  description  within  the  occupied  territory  can 

I.  New  Orleans  v.  Steamship  Co.,  20  Wallace,  p.  397.  2.  Halleck,. 
Chap.  19,  Sec.  3. 


RIGHTS    REGARDING   PUBLIC   PROPERTY.  26 1 

be  claimed  by  the  dispossessed  government  as  its  due,  nor 
should  they  ever  be  remitted  by  those  charged  with  collecting 
the  same  for  its  support.  To  do  this  would  be  a  breach  of  that 
temporary  allegiance  due  from  those  who  accept  the  protection 
of  the  military  government  which  would  subject  them  to  severe 
punishment.  All  such  revenues  belong  of  right  to  the  con- 
queror. He  may  demand  and  receive  their  payment  to  him- 
self. He  may  use  them  as  to  him  seems  best,  and  generally  a 
considerable  portion  will  be  expended  in  maintaining  the  ma- 
chinery of  local  government,  which,  be  it  civil  or  otherwise, 
is  maintained  under  military  control.  These  rents  and  taxes 
are  a  part  of  the  spoils  of  war,  and  the  people  of  the  captm-ed 
province  or  town  can  no  more  pay  them  to  the  vanquished 
State  than  they  can  contribute  funds  or  military  munitions 
to  assist  it  to  prosecute  the  war.  1  Those  who  remain  under 
military  government  are  subject  to  the  orders  of  the  conqueror, 
and  are  not  for  the  time  being  subject  to  the  laws  of  the  dis- 
placed State  or  to  its  mandates.  Therefore,  any  attempt  of 
the  former  government,  now  ejected  from  its  seat  of  power, 
to  make  collections  of  money  or  other  sinews  of  war  from  a 
people  whom  it  no  longer  protects  would  be  wholly  unwar- 
ranted and  properly  be  resented  by  them  as  an  act  of  pre- 
sumption— mere  brutum  fulmen — to  which,  even  if  inclined 
to  do  so,  they  could  not  consistently  with  their  own  safety 
pay  regard.  Such  were  the  proclamations  of  various  juntas 
during  the  war  in  the  Spanish  Peninsula  when  the  enemy 
had  completely  prostrated  their  powers  of  successful  resistance, 
and  which  had  no  other  result  than  to  deceive  the  Spanish 
people  and  sacrifice  alike  both  them  and  their  steadfast, 
faithful  allies.^ 

It  is  true  that  this  has  sometimes  been  denied  and  the  doc- 
trine advanced  that  the  expelled  sovereignty  has  the  right  to 
forbid  its  oflEicials  to  serve  the  invader,  and  order  his  subjects 


I.  American  Instructions,  Sec.  2,  clause  i;  92  U.  S.,  iii;  loi  U.  S.,  p. 
618.     2.  Napier's  Peninsula  War,  Book  III.,  Chap.  2. 


262  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

to  refuse  obedience,  or  may  excite  insurrection.  1  The  mere 
question  of  the  rights  of  the  vanquished  sovereignty  in  this 
behalf  's  a  theoretical  abstraction  that  can  work  good  to  no 
one  and  harm  to  only  loyal  subjects.  If  they  obey,  the  con- 
queror, who  exercises  the  only  government  that  exists  over 
them,  will  apply  the  proper  disciplinary  measures. 

If  the  deposed  sovereignty  forbade  the  conquered  inhab- 
itants to  pay  the  public  revenues  to  the  officials  who  admin- 
istered military  government,  would  attention  be  paid  to  so 
unreasonable  commands?  Would  the  conqueror  not  compel 
payment  to  him?  When  the  vanquished  State  recovered  its 
power,  would  it  compel  the  revenues  to  be  again  collected 
and  paid  to  itself?  Yet,  if  it  have  authority  to  command  the 
people  to  refuse  obedience  to  the  conqueror,  it  may  order  them 
not  to  pay  money  or  contribute  supplies  to  the  latter.  The 
position  in  which  such  a  doctrine  places  the  conquered  people 
is  certainly  not  a  happy  one. 

264.  History  nowhere  records  an  instance  of  enforced  tax- 
ation within  the  limits  of  military  government  exercised  ac- 
cording to  the  mandates  of  a  power  beyond  these  limits  equal 
to  that  presented  in  the  Philippine  Archipelago  soon  after 
the  taking  possession  thereof  by  the  military  forces  of  the 
United  States.  Every  person  of  Filipino  affinities  was  com- 
pelled to  contribute  from  his  wages  to  the  support  of  the  in- 
sm-recto  government.  The  servants  in  the  American  military 
governor's  quarters  were  constrained,  like  all  others,  to  pay 
this  tribute  demanded  under  the  alternative  of  assassination, 
so  often  practiced  as  to  awe  all  into  submission.  The  rule 
extended  relentlessly  to  all.  As  it  was  not  the  policy  of  the 
United  States  Government  to  join  in  the  sanguinary  contest, 
forbidding  payment  under  like  penalty  of  death,  the  practice 
was  continued  until  the  collapse  of  the  insurrection.  The  Fil- 
ipinos had  well  learned  this  lesson  from  Spanish  tutors,  judging 
from  Napier's  remarks,  just  cited.  Such  experiences,  how- 
ever, are  not  to  be  expected  in  civilized  warfare. 

I.  Hall,  pp.  441-42. 


RIGHTS   REGARDING   PUBLIC    PROPERTY.  263 

265.  The  same  principles  lie  at  the  foundation  of  the  right 
to  destroy  both  movable  and  immovable  property  of  the 
enemy  State.  As  we  have  the  right  to  deprive  the  enemy 
of  his  property  by  carrying  it  away,  so  we  may  in  some  in- 
stances destroy  that  which  in  its  nature  is  not  capable  of  trans- 
portation.^ The  country  may  be  wasted  if  it  tends  to  pro- 
mote the  ends  of  the  war.  But  such  measures  are  only  to  be 
pursued  with  moderation  and  according  to  the  exigency  of 
the  case.  All  damage  done  to  property  unnecessarily,  every 
act  of  hostility  against  the  enemy  which  does  not  tend  to 
secure  the  victory  and  bring  the  war  to  a  conclusion,  is  un- 
warranted. As  with  respect  to  hostilities  against  the  enemy's 
person,  the  laws  of  war  prohibit  those  measiures  which  are  in 
themselves  unlawful  and  odious — poisoning,  assassinations, 
treacher)'-,  the  massacre  of  an  enemy  who  has  surrendered — 
so  the  law  now  being  considered  condemns  every  act  of  hostility 
which  of  its  own  nature,  and  independently  of  circumstances, 
contributes  nothing  to  the  success  of  our  arms  and  does  not 
increase  our  strength  or  weaken  that  of  the  enemy;  and  on 
the  other  hand  it  permits  or  tolerates  every  act  which  in  itself 
is  naturally  adapted  to  promote  the  object  of  the  war  without 
considering  whether  such  act  of  hostility  was  unnecessary  in 
that  particular  instance,  unless  there  be  the  clearest  evidence 
that  an  exception  ought  to  have  been  made  in  the  case  in 
question.^ 

266.  The  destruction  of  public  magazines,  foundries,  and  all 
other  warlike  stores  of  the  enemy,  when  in  the  judgment  of 
the  commander  it  becomes  advisable,  would  be  entirely  jus- 
tifiable. It  might  often  happen  that  this  destruction  would 
involve  that  much  of  private  as  well  as  public  property,  which 
private  property,  except  for  its  being  accidentally  involved  in 
the  fortune  of  the  other,  should  be  spared;  if  that  be  so,  and 
the  latter  be  destroyed,  it  is  one  of  those  fortuitous  circum- 
stances so  common  in  campaigns,  regrettable,  to  be  sure,  yet 

I.  Twiss,  Law  of  Nations,  p.  125.  2.  Vattel,  Book  III.,  Chap.  9, 
Sec.  173- 


264  MILITAEY    GOVEENMENT   AND   MAKTIAL   LAW. 

for  which  no  blame  properly  attaches  to  the  commander  order- 
ing the  destruction.  All  that  can  be  asked  of  him  is  that  he 
will  take  reasonable  precautions  to  prevent  the  destruction 
of  every  species  of  property,  the  existence  or  possession  of 
which  can  have  no  influence  upon  the  issues  of  the  war. 

This  was  illustrated  when,  in  1864,  Atlanta,  Georgia,  was 
partially  destroyed  by  the  Federal  authorities.  That  city  was 
of  vast  importance,  both  pohtically  and  strategically,  and  when 
after  the  campaign  resulting  in  its  capture  the  general  of  the 
Union  Army  decided  to  abandon  it  and  establish  his  base  of 
operations  on  the  seaboard,  it  became  necessary  to  render  it  as 
little  valuable  to  the  enemy  as  possible.  To  this  end  the  ex- 
tensive railroad  depots  were  levelled  and  burned  and  the  rail- 
roads centering  thereat  were,  as  far  as  possible,  destroyed. 
Some  of  the  buildings  connected  with  the  depots  had  been  con- 
verted by  the  enemy  into  magazines,  where  were  stored  quan- 
tities of  ammunition.  During  the  burning  of  this  property, 
which  was  strictly  warranted  under  the  laws  of  war,  the  con- 
flagration extended  to  many  buildings,  and  much  property 
other  than  that  which  had  been  ordered  to  be  destroyed.  1 

267.  But  the  destruction  of  public  property  by  the  Union 
Army  was  not  always  accompanied  by  such  results.  After- 
wards, while  the  tioops  were,  pm-suant  to  the  plan  adopted 
for  a  change  of  base,  occupying  Milledgeville,  Georgia,  the 
arsenal  there  and  its  contents  were  completely  destroyed,  to- 
gether with  such  public  buildings  as  could  be  easily  converted 
to  hostile  uses.  But  little  or  no  damage  was  done  to  private 
property,  even  some  extensive  mills  being  spared,  together 
with  several  thousand  bales  of  cotton,  although  these  might 
have  proved  of  great  service  to  the  enemy,  while  private 
property  was  carefully  preserved  from  destruction.  The  same 
course  was  pursued  by  General  Wilson  at  Selma,  Alabama. 
That  place  was  an  important  military  depot.  There  were 
located  an  arsenal,  a  navy-yard,  nitre  works,  and  extensive 
foundries  for  artillery  of  all  sizes,  shot  and  shell.     When  the 

I.  Oen.  Sherman's  Memoirs,  Vol.  2,  p.  177. 


RIGHTS   REGARDING   PUBLIC    PROPERTY.  265 

T'ederal  commander  moved  on,  leaving  the  city  behind  him, 
it  became  necessary  to  destroy  all  these.  In  doing  so  every 
precaution  was  taken  to  prevent  the  spread  of  fire ;  a  night  was 
selected  when  the  rain  fell  in  torrents,  and  thus  the  spread  of 
the  flames  to  private  and  public  property  which  was  to  be 
-spared  was  effectually  prevented. 

268.  It  is  true  that  these  events  did  not  happen  under 
military  government.  In  each  case  the  destruction  was  inci- 
dent to  the  active  prosecution  of  a  war  in  presence  of  the  enemy, 
when  to  hold  the  immediate  territory  was  neither  contem- 
plated nor  desirable.  But  they  occurred  in  enemy  territory 
and  well  illustrate  the  principle  which  should  control  command- 
ers enforcing  military  government  when  it  becomes  necessary 
to  destroy  the  property  of  the  deposed  State. 

269.  In  one  important  respect  the  implied  obligations  of 
the  conqueror  who  has  established  military  government  are 
very  different  in  regard  to  private  and  public  property.  This 
results  from  the  reciprocal  relations  of  temporary  subject  and 
ruler  subsisting  between  the  people  and  the  conqueror.  If  he 
elect  to  set  up  a  government  over  them  with  the  understanding 
that  the  people  are  to  remain  quietly  at  their  homes,  pursuing 
in  so  far  as  allowable  their  usual  peaceful  vocations,  he  must 
see  that  his  part  of  the  agreement  thus  impliedly  entered  into 
shall  be  faithfully  performed ;  and  this  embraces  that  measure 
of  protection  to  private  property  which  before  has  been  indi- 
cated as  due  from  him.  On  the  other  hand,  except  it  be  in 
pm"suance  of  treaty  stipulations,  he  is  under  no  obligations 
whatever  to  the  vanquished  State.  He  deals  with  it  at  arm's 
length.  He  has  forcibly  deposed  its  authority.  If  former  offi- 
cials continue  to  perform  their  functions,  it  is  because  he  so 
wills.  He  therefore  unhesitatingly  destroys  the  property 
of  the  State  when  citl  er  policy  or  the  exigencies  of  the  war 
may  render  such  a  course  'advisable,  and  of  this  he  plone  is 
the  judge.  He  is  restricted  in  his  measiu-es  by  the  laws  of 
war  only;  the  deposed  State  has  no  voice  in  the  matter. 

270.  If  it  be  a  civil  war,  policy  may  dictate  a  different  course 


266  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

on  the  part  of  the  legitimate  government  towards  both  rebel 
subjects  and  their  government,  although  it  is  competent  for 
either  party  to  conduct  the  contest  on  the  same  principles  as 
if  waged  between  independent  States.  When  the  war  attains 
sufficient  magnitude  to  prompt  the  parent  State,  from  consid- 
erations of  humanity,  to  concede  belligerent  rights  to  the 
rebels,  all  property  within  the  revolutionary  territory,  as  we 
have  before  pointed  out,  in  the  eye  of  the  law  is  enemy  prop- 
erty. 1  It  is  therefore  subject  to  the  rules  governing  the  dis- 
position of  property  in  hostile  territory.  The  revolutionists 
from  the  position  they  assume  regard  the  legitimate  govern- 
ment in  no  other  light  than  an  independent  sovereignty  with 
which  they  have  no  connection,  and  they  deal  with  it  and  its 
loyal  subjects  accordingly.  They  have  established  a  govern- 
ment of  force,  independent  of  all  other  governments.  Having 
thrown  down  the  gauge  of  battle,  they  abide  the  consequences. 
The  legitimate  government  is  to  them  a  hostile  belligerent 
power,  to  which  they  concede  nothing,  and  from  which,  of 
course,  they  expect  nothing  beyond  the  rights  of  war.  During 
the  progress  of  the  contest,  should  they  establish  military  gov- 
ernment over  a  portion  of  the  territory  of  the  parent  State, 
they  will  be  governed  in  dealing  with  property  found  therein, 
whether  private  or  public,  by  the  principles  before  laid  down 
for  the  guidance  of  commanders  of  armies  of  independent 
powers.  Such  would  be  also  the  unquestioned  right  of  the 
legitimate  government  when  under  such  circumstances  its 
armed  forces  dominate  rebel  territory. 

This  is  fully  illustrated  by  the  acts  of  Congress  bearing  on 
the  subject,  passed  during  the  Rebellion  of  1861-65,  and  the 
executive  action  taken  in  pursuance  thereof. 

Whenever  national  troops  re-established  order  and  set  up  a 
government  of  military  rule  over  an  occupied  rebel  district,  the 
rights  of  persons  and  property  were,  in  general,  respected  and 
enforced.     But  to  work  this  amelioration  in  the  condition  of 

I.  2  Black,  p.  674. 


RIGHTS   REGARDING   PUBLIC   PROPERTY.  267 

the  people  it  was  necessary  that  the  occupation  should  have  the 
feature  of  permanency  as  contradistinguished  from  the  mere 
rules  of  a  marching  army,  over -running,  devastating,  perhaps, 
and  then  leaving  the  country  behind.  And  whatever  of  kind- 
ness was  shown  peaceful  inhabitants  and  their  property,  the 
interest  of  the  national  Government,  the  success  of  her  armies, 
were  always  regarded  as  paramount  to  all  other  considerations. 
271.  The  military  commander  has  no  authority  perma- 
nently to  alienate  property  of  his  government  that  has  come 
into  his  possession  by  virtue  of  military  occupation.  Such 
alienation  is  an  act  of  sovereignty,  only  to  be  authorized  by 
that  department  of  his  government  which,  under  the  Consti- 
tution, is  vested  wdth  this,  which  is  among  the  highest  powers 
of  prerogative.  In  the  United  States  the  case,  in  spirit  at 
least,  is  covered  by  the  ninth  article  of  war.  The  inhibition 
applies  to  both  real  and  personal  property ;  for  instance,  lands 
or  moneys ;  indeed,  any  property  whatsoever.  The  only  ex- 
ception that  would  be  allowed  is  the  appropriation  of  moneys 
captured  as  booty  or  otherwise,  and  which  necessity  demands 
shall  be  used  to  procure  supplies  for  the  troops.  1 


I.   Opinions  Att'y-Gen.,  Vol.    22,  p.  548;    Magoon,  pp.  353,  356,  450, 
497,  625,  648. 


CHAPTER  XII. 
Trade  with  Occupied  Territory. 

272.  One  of  the  most  important  incidents  of  military  gov- 
ernment is  the  regulation  of  trade  with  the  subjugated  district. 
The  occupying  State  has  an  unquestioned  right  to  regulate 
commercial  intercourse  with  conquered  territory.  It  may 
be  absolutely  prohibited,  or  permitted  to  be  unrestricted,  or 
such  limitations  may  be  imposed  thereon  as  either  policy  or  a 
proper  attention  to  military  measures  may  justify.  While 
the  victor  maintains  exclusive  possession  of  the  territory  his 
title  is  valid.  Therefore,  the  citizens  of  no  other  nation  have 
a  right  to  enter  it  without  the  permission  of  the  dominant 
power.  1  Much  less  can  they  claim  an  unrestricted  right  to 
trade  there. 

273.  As  between  parties  belligerent  the  rule  is  that,  except 
when  specifically  sanctioned  by  their  respective  governments, 
all  commercial  intercourse  with  the  enemy  or  his  allies  is 
prohibited.  "The  law,"  said  Chancellor  Kent,  "has  put  the 
sting  of  disability  into  every  kind  of  voluntary  communication 
and  contact  with  an  enemy  which  is  made  without  the  special 
permission  of  the  government.  There  is  wisdom  and  policy, 
patriotism  and  safety,  in  this  principle,  and  every  relaxation 
of  it  tends  to  corrupt  the  allegiance  of  the  subject  and  to  pro- 
long the  calamities  of  war."  2  Nor  is  this  restriction  confined 
to  trade  in  the  ordinary  acceptation  of  the  term ;  but  all  com- 
munication and  intercourse  with  the  enemy  are  prohibited. 
It  matters  not  whether  the  property  be  bought  or  sold  or 
merely  transported  and  shipped.  The  contamination  of  for- 
feiture is  consummated  the  moment  it  becomes  the  object  of 

I.  9  Howard,  p.  615;  Bluntschli,  I.,  Sec.  8;  Manning,  p.  167;  American 
Instructions,  Sec   5,  clause  i.     2.  16  Johnson,  459,  460;  9  Wallace,  p.  72. 

268 


TRADE    WITH    OCCUPIED   TERRITORY.  269 

illegal  intercourse,  i  The  authorities  are  unanimous  as  to 
the  inflexibility  of  this  rule.  They  emphasize  the  fact  that 
there  cannot  at  the  same  time,  between  the  same  people,  be 
a  war  of  arms  and  a  peace  of  commerce.  "One  of  the  imme- 
diate consequences,"  says  Wheaton,  "of  the  commencement 
of  hostilities  is  the  interdiction  of  all  commercial  intercourse 
between  the  subjects  of  the  States  at  war  without  the  license 
of  their  respective  governments."  2  This  doctrine  renders 
null  and  void  all  contracts  with  the  enemy  during  the  war; 3 
it  makes  illegal  the  insurance  of  enemy's  property,  prohibits 
the  drawing  of  bills  of  exchange  by  an  alien  enemy  on  the 
subjects  of  the  adverse  government,  4  the  purchase  of  bills  on 
the  enemy's  country,  or  the  remission  and  deposit  of  funds 
there,  and  the  remission  of  money  or  bills  to  subjects  of  the 
enemy.  5  But  it  does  not  necessarily  abrogate  all  treaties, 
which  may  have  been  made  especially  with  a  view  to  a  possible 
state  of  war.  6 

To  this  effect  are  repeated  decisions  of  the  Supreme  Court  of 
the  United  States.  "War,  when  duly  declared  or  recognized 
as  such  by  the  war-making  power,"  said  that  court,  "imports 
a  prohibition  to  the  subjects  or  citizens  of  all  commercial  in- 
tercourse and  correspondence  with  citizens  or  persons  domiciled 
in  the  enemy  country.  Upon  this  principle  of  public  law  it  is 
the  established  rule  in  all  commercial  nations  that  trading  with 
the  enemy  except  under  a  government  license  subjects  the 
property  to  confiscation,  or  to  capture  and  condemnation. 
Partnership  with  a  foreigner  is  dissolved  by  the  same  event 
which  makes  him  an  alien  enemy,  because  there  is  in  this  case 
an  utter  incompatibility  created  by  operation  of  law  between 
the  partners  as  to  their  respective  rights,  duties,  and  obliga- 
tions, both  public  and  private,  which  necessarily  dissolves  the 
relation  independent  of  the  will  or  acts  of  the  parties.     Direct 

I.  8  Cranch,  pp.  155  and  382;  Wharton,[Conflict  of  Laws,  Sec.  497. 
2.  International  Law,  Sec.  309.  3.  8  Cranch,  p.  149;  Wheaton,  Sec.  317; 
Kent,  L,  p.  67,  and  note.  4.  6  Taunton,  p.  237.  5.  4  Wallace,  p.  542, 
6.  Bluntschli,  I.,  Sec.  29. 


270  MILITAKY    GOVERNMENT   AND   MARTIAL    LAW. 

consequence  of  the  rule  as  established  in  those  cases  is  that  as 
soon  as  war  is  commenced  all  trading,  negotiation,  communi- 
cation, and  intercourse  between  the  citizens  of  one  of  the  bellig- 
erents with  those  of  the  other,  without  the  permission  of  the 
government,  is  unlawful.  No  valid  contract,  therefore,  can 
be  made,  nor  can  any  promise  arise  by  implication  of  law  from 
any  transactions  with  the  enemy."  i 

This  doctrine  is  in  accordance  with  the  best  authorities  on 
international  law.  That  law,  recognized  in  the  Constitution, 
is  adopted  and  used  by  the  United  States,  and  therefore  in 
proper  cases  has  the  force  of  law  in  our  courts  and  with  our 
executive  officers.  Were  it  not  thus  recognized,  adopted,  and 
used,  it  would  have  no  force,  and  it  may  be  modified  as  the  gov- 
ernment sees  fit.  If  the  government  did  this  so  as  prejudicially 
to  affect  other  nations  or  the  subjects  thereof,  it  would  of  com-se 
be  prepared  to  carry  out  its  resolutions  by  military  force.  2 
Under  this  responsibility  it  is  competent  for  each  belligerent  to 
establish  rules  of  intercourse  with  the  enemy.  If  this  be  not 
done,  the  general  laws  of  war  prevail. 

Such  has  been  the  uniform  coiu-se  of  decisions  in  the  supreme 
Federal  tribunal.  In  the  case  of  the  Rapid  it  was  determined 
that  after  a  declaration  of  war  an  American  citizen  cannot  law- 
fully send  a  vessel  to  the  enemy's  country  to  bring  away  prop- 
erty which  he  had  stored  there.  3  This  was  the  first  case  after 
the  organization  of  the  Supreme  Court  in  which  it  was  called 
upon  to  assert  the  laws  of  war  against  the  property  of  a  citizen. 
The  principles  succinctly  stated  in  that  opinion  have  been 
uniformly  adhered  to  since.  The  inhibition  extends  to  inter- 
course between  persons  who  occupy  towards  each  other  the 
relation  of  debtor  and  creditor.  And  although  a  creditor  may 
have  an  agent  in  an  enemy's  country  to  whom  his  debtor  there 
may  pay  a  debt  contracted  before  the  war,  yet  the  agent  must 
be  one  appointed  before  the  war.  He  cannot  be  one  appointed 
during  it.  4     And  if  the  business  transaction  was  conducted 

I.  6  Wallace,  p.  535;  8  Cranch,  p.  194;  15  Wallace,  p.  185.  2.  92  U.  S., 
pp.  287-88;  97  U.  S.,  p.  60.     3.  8  Cranch,  p.  155.     4.  9  Wallace,  p.  75. 


TRADE   WITH   OCCUPIED   TERRITORY.  '  27 1 

not  directly,  but  through  a  middleman,  it  is  equally  unlawful,  i 

274.  The  same  rule  applies  to  allies.  The  relations  of  the 
subjects  of  an  ally  toward  the  common  enemy  are  the  same  as 
those  of  the  principal  belligerent.  There  is  no  distinction 
between  them,  and  if  the  courts  of  their  own  country  do  not 
enforce  the  rights  and  duties  of  war,  those  of  the  principal  or 
co-belligerent  may  do  so;  for  the  tribunals  of  all  have  an 
equal  right  to  enforce  the  laws  of  war,  and  to  punish  any  in- 
fractions, whether  committed  by  the  subjects  of  their  own 
government  or  that  of  an  ally.  A  single  belligerent  may  grant 
licenses  to  trade  with  the  enemy  and  dilute  and  weaken  his 
own  rights  at  pleasure,  but  it  is  otherwise  when  allied  nations 
are  pursuing  a  common  cause.  The  community  of  interests 
and  object  and  action  creates  a  mutual  duty  not  to  prejudice 
that  joint  interest,  and  it  is  a  declared  principle  of  the  law  of 
nations,  founded  on  very  clear  and  just  grounds,  that  one  of 
the  belligerents  may  seize  and  inflict  the  penalty  of  forfeiture 
on  the  property  of  a  subject  of  a  co-ally  engaged  in  a  trade 
with  the  common  enemy,  and  thereby  affording  him  aid  and 
comfort,  whilst  the  other  ally  was  carrying  on  a  severe  and 
vigorous  warfare.  It  would  be  contrary  to  the  implied  con- 
tract in  every  such  warlike  confederacy  that  neither  of  the 
belligerents  without  the  other's  consent  shall  do  anything  to 
defeat  the  common  object.  2  It  follows  as  a  corollary  to  this 
proposition,  that  co-belligerents,  unless  they  mutually  consent 
to  waive  their  rights  in  the  premises,  should  join  in  granting 
licenses  to  trade  with  the  common  enemy. 

275.  The  profits  derived  from  illegal  trade  successfully 
conducted  during  war  are  enormous.  The  temptations  to 
embark  in  commercial  enterprises  of  this  character  are  cor- 
respondingly great.  The  boldest  schemers  and  adventurers, 
undeterred  by  attendant  risks,  go  forth  therein  with  a  courage 
and  devotion  worthy  a  better  cause.  It  may  truthfully  be 
averred  that  the  ingenuity  of  man  is  taxed  to  the  utmost  in 

I.  9  Wallace,  p.  75.      2.   Kent,  Vol.  i,  p.  69. 


2  72  MILITAET   GOVEKNMENT   AND   MARTIAL   LAW. 

devising  means  to  carry  on  such  illicit  trade  without  incurring 
the  penalty  therefor.  But  it  has  been  in  vain ;  the  rigor  of  the 
rule  of  condemnation  has  frustrated  all  such  attempts,  i  No 
motives  of  compassion  or  indulgence  prompted  by  the  hard- 
ships of  the  particular  case  are  permitted  to  suspend  or  mitigate 
its  application.  2 

276.  In  the  Crimean  War  this  rule  was,  however,  greatly 
relaxed.  It  was  done  by  orders  and  proclamations  issued  in 
advance  by  the  respective  belligerents.  Had  this  not  been 
done,  it  was  acknowledged,  the  com-ts  and  officers  would  have 
been  compelled  rigidly  to  enforce  the  general  rule.  The  order 
in  council  of  the  15th  of  April,  1854,  permitted  British  sub- 
jects to  trade  freely  at  Russian  ports  not  blockaded  in  neutral 
vessels  and  in  articles  not  contraband,  but  not  in  British  ves- 
sels. The  French  orders  were  to  the  same  effect.  The  Rus- 
sian declaration  of  the  19th  of  April  permitted  French  and 
English  goods,  property  of  citizens  of  those  countries,  to  be 
imported  into  Russia  in  neutral  vessels.  The  French  and 
Russian  governments  allowed  private  communications,  not 
contraband  in  their  nature,  to  be  exchanged  between  their 
subjects  by  telegraph.  These  must,  however,  be  regarded  as 
special  relaxations  of  the  rules  of  war  adopted  from  reasons 
of  policy  by  the  belligerents  interested.  They  have  no  binding 
effect  in  case  of  future  hostilities. 

277.  It  is  the  duty  of  the  commander  to  enforce  the  laws  of 
non -intercourse  in  territory  subject  to  military  government. 
He  may  organize  a  system  of  trade  with  the  express  or  implied 
sanction  of  his  military  superiors.  In  this  both  he  and  they 
will  be  controlled  by  the  policy  adopted  by  the  conquering 
State  if  it  has  modified  in  this  particular  the  laws  of  war. 
And  so  long  as  the  commander  does  not  transcend  the  limits 
established  by  those  laws  or  by  this  government  policy,  all 
rights  accruing  by  virtue  of  authority  so  exercised  will  be 
sustained  by  the  courts  of  his  own  country.     The  object  which 

I.  Whea^ton,  Sec.  316;  Halleck,  Chap.  21,  Sec.  3.  2.  Duer  on  In- 
surance, Vol.  I,  pp.  556-59. 


TRADE   WITH   OCCUPIED   TERRITORY.  273 

he  has  in  view  is  to  create  a  revenue  to  be  used  for  the  prosecu- 
tion of  the  war. 

This  was  the  course  pursued  by  commanders  of  United 
States  forces  in  Mexico.  As  previously  mentioned,  some  of 
the  seaports  in  territory  mihtarily  occupied  were  made  ports 
of  entry,  through  which  commerce  was  carried  on  between  Mex- 
ico and  the  outside  world.  Referring  to  the  establishment  of 
the  custom-house  at  one  of  the  ports  of  entry  so  established,  the 
Supreme  Court  of  the  United  States  said:  "The  person  who 
acted  in  the  character  of  collector  in  this  instance  acted  as  such 
under  the  authority  of  the  military  commander,  and  in  obedi- 
ence to  his  orders;  and  the  duties  he  exacted  and  the  regula- 
tions he  adopted  were  not  those  prescribed  by  law,  but  by  the 
President  in  his  character  of  commander-in-chief.  The  cus- 
tom-house was  established  in  the  enemy's  country  as  one  of 
the  weapons  of  war.  It  was  established,  not  for  the  purpose  of 
giving  the  people  of  Tamaulipas  the  benefits  of  commerce  with 
the  United  States  or  with  other  countries,  but  as  a  measure  of 
hostility  and  as  a  part  of  the  military  operations  in  Mexico ;  it 
was  a  mode  of  exacting  contributions  from  the  enemy  to  support 
our  army,  and  intended  also  to  cripple  the  resources  of  Mexico 
and  make  it  feel  the  evils  and  burdens  of  the  war.  The  duties 
required  to  be  paid  were  regulated  with  this  view  and  were 
nothing  more  than  contributions  levied  upon  the  enemy  which 
the  usages  of  war  justify  when  an  army  is  operating  in  an 
enemy's  country."  1 

A  similar  course  was  pursued  on  the  coast  of  California  dur- 
ing the  same  war.  Pursuant  to  instructions  of  the  President, 
the  military  governor,  who  was  also  commander  of  the  United 
States  forces  in  that  quarter,  estabhshed  custom-houses  at  the 
principal  seaports  for  the  collection  of  duties  on  imports.  The 
tariff  thus  levied  was  merely  a  military  contribution,  author- 
ized by  the  laws  of  war,  the  duty  of  collecting  which  was  de- 
volved upon  army  and  navy  officers.     By  the  treaty  of  peace 

I.  9  Howard,  p.  616. 
—18— 


274  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

California  was  ceded  to  the  United  States.  As  soon  as  pos- 
sible after  the  ratification  of  this  treaty  the  tariff  of  duties  for 
the  collection  of  military  contributions  ceased,  and  the  revenue 
laws  and  tariff  of  the  United  States  were  substituted  in  its 
place.  But  California  was  not,  for  several  months  after  this, 
brought  by  act  of  Congress  within  a  collection  district  under 
the  revenue  laws  of  the  United  States,  and  not  until  more  than 
a  year  after  the  ratification  of  the  treaty  did  the  collector  ap- 
pointed pursuant  to  such  laws  enter  upon  the  discharge  of 
his  duties.  In  the  meantime  the  duties  were  collected  by 
officials  appointed  by  the  military  commander  the  same  as 
when  war  was  flagrant.  The  Supreme  Court  held  that  such 
duties  were  legally  collected,  not  only  during  the  war,  but 
down  to  the  time  the  regular  collector  entered  upon  his  duties, 
more  than  eighteen  months  after  the  hostilities  ceased,  i 

This  related  to  duties  on  goods,  merchandise,  etc.,  imported 
from  foreign  countries  into  the  ports  of  the  newly  captured 
countries.  No  question  at  that  time  came  up  regarding  im- 
portations into  said  ports  from  other  ports  of  the  United 
States,  or  vice  versa.  Afterwards,  in  De  Lima  v.  Bidwell,  2  it 
was  raised,  and  the  Supreme  Court  decided  that  after  the  in- 
corporation of  Porto  Rico  into  the  territory  of  the  United 
States  duties  were  not  collectible  on  merchandise  coming  from 
ports  of  the  former  to  those  of  the  latter  until  Congress  so 
determined.  Prior  to  that  time  and  when  military  govern- 
ment in  Porto  Rico  was  exercised  on  soil  foreign  to  the  United 
States  such  duties  could  be  imposed  and  legally  collected. 

278.  There  is  in  every  government  some  department  to 
which,  by  the  fundamental  laws  of  the  land  is  entrusted  the 
determination  of  the  military  policy  of  the  State.  This  de- 
partment it  is  which  exercises  authority  in  licensing  trade 
with  enemy  territory.  In  Great  Britain  this  power  rests  with 
the  crown.  3     In  the  United  States  it  is  vested  in  Congress. 

I.  i6  Howard,  p.  164;  21  Wallace,  p.  87.  2.  182  U.  S.  Reports,  p. 
194,  Sec.  3,  Chaps.  5  and  6,  ante.  3.  Blackstone,  I.,  pp.  257-60;  Wheaton, 
Sec.   310;  I   Robinson,  p.    199;   Manning,   p.   168. 


TRADE    WITH    OCCUPIED   TERRITORY.  ■  275 

If  Congress  does  not  act  in  the  premises,  the  Executive  De- 
partment, to  which  is  entrusted  the  command  and  direction 
of  the  armies,  can  legally  authorize  whatever  commercial  in- 
tercourse comports  with  the  laws  of  war.^  The  instances  just 
cited  illustrate  this  fact.  But  when  Congress  has  spoken,  its 
will  is  supreme  and  must  be  obeyed.  If  military  commanders 
authorize  intercourse  in  derogation  of  the  legislative  will,  not 
only  do  they  lay  themselves  liable  to  answer  to  their  govern- 
ment in  their  official  capacities,  but  no  valid  rights  arise  out 
of  such  usurped  authority. 

The  experiences  of  the  Civil  War  are  particularly  instruct- 
ive on  this  point.  It  has  been  seen  that  the  act  of  July  13, 
1861,  prohibited  commercial  intercourse  with  districts  declared 
by  the  President  to  be  in  a  state  of  insurrection,  with  such 
exceptions  as  the  President  might  make  and  under  regulations 
established  by  the  Secretary  of  the  Treasury.  The  districts 
in  insurrection  embraced  the  whole  cotton-producing  territory 
of  the  United  States.  Only  by  rescuing  it  from  rebel  do- 
minion could  cotton  be  procured.  Valuable  as  this  commodity 
had  always  been,  the  war  increased  its  commercial  importance 
enormously.  Every  proper  means  was  adapted  by  the  Fed- 
eral Government  to  secure  as  large  a  supply  as  possible.  With 
the  hope  that  it  might  be  successfully  cultivated  in  loyal  dis- 
tricts. Congress,  in  1862,  passed  an  act  for  the  purchase,  under 
the  supervision  of  the  Secretary  of  the  Interior,  of  cotton  seed, 
stipulating  that  the  purchase  should  be  made  from  places 
where  cotton  was  grown  as  far  north  as  practicable. 

One  Hodge  seems  to  have  fancied  he  saw  an  opportunity 
under  cover  of  this  act  to  engage  in  a  lucrative  illegal  trade 
with  the  enemy.  Receiving  from  the  Secretary  of  the  Interior 
a  permit  to  procure  a  cargo  of  cotton  seed  within  the  enemy's 
lines  in  Virginia,  he  proceeded  to  load  his  vessel  with  merchan- 
dise and  carry  it  into  insurrectionary  territory.  It  was  seized 
on   the   outward   voyage   by   revenue   officers   of   the    United 

I.  H^illeck,  Sec.  2,  Chap.  28;  21  Wallace,  p.  87;  Hall,  p.  510. 


276  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

States  and  libelled  for  forfeiture  in  the  District  Court  of  Mary- 
land. The  libel  was  here  dismissed  and  the  decree  was  con- 
firmed on  appeal  to  the  circuit  court.  But  upon  the  case  being 
carried  to  the  Supreme  Court  of  the  United  States  this  decree 
was  reversed.  It  was  admitted  that  the  act  of  Congress  author- 
izing the  purchase  of  the  cotton  seed  contemplated  the  carry- 
ing on  trade  with  the  prohibited  districts.  In  no  other  way,  as 
was  well  known,  could  seed  be  procured.  It  was  not,  therefore 
the  destination  of  the  vessel  alone  which  rendered  the  voyage 
illegal.  The  respondents  claimed  very  plausibly  that  the  mer- 
chandise was  for  the  purpose  of  paying  for  the  cotton  seed^ 
and  that  under  all  the  circumstances  it  was  the  best  and 
readiest  medium  of  exchange  to  be  had.  But  the  Supreme 
Court  brushed  the  claim  aside  as  a  mere  colorable  pretext. 
It  pointed  to  the  fact  that  under  the  act  of  1861  the  President 
only  was  authorized  to  license  trade  and  the  Secretary  of  the 
Treasury  alone  to  establish  regulations  governing  it;  the  act 
authorizing  the  purchase  in  question  did  not  repeal  any  part 
of  the  non-intercourse  act,  and  consequently  the  Secretary  of 
the  Interior  was  not  empowered  to  authorize  the  dispatching 
a  vessel  to  the  prohibited  districts,  and  properly  construed 
his  permit  to  procure  the  cargo  of  cotton  seed  as  not  being  an 
attempt  to  exercise  such  unwarranted  authority.  Yet  this 
permit,  together  with  a  letter  of  the  Secretary  of  the  Navy 
commanding  Navy  officers  to  respect  it,  was  the  only  license 
the  vessel  had.  It  was  trading,  therefore,  in  violation  of  the 
act  of  July  13,  1 861,  and  both  vessel  and  cargo  were  declared 
to  be  forfeited.  This  decision  shows  with  what  strictness  laws 
licensing  trade  with  the  enemy  are  construed  by  the  Supreme 
Court;  and  an  interesting  feature  of  this  particular  case  is  the 
diversity  of  judicial  opinion  which  characterized  its  determina- 
tion— the  district  and  circuit  courts  taking  one  view  and  the 
Supreme  Court  the  opposite.^ 

So  as  to  the  case  of  the  Sea  Lion.     On  February  16,  1863,  a 

I.  3  Wallace,  p.  617. 


TRADE  WITH  OCCUPIED  TEREITORY.  277 

Special  agent  of  the  Treasury  Department  and  acting  collector 
at  New  Orleans  gave  written  permission  to  certain  parties  there 
resident  to  bring  cotton  from  within  the  Confederate  lines  into 
that  city  and  ship  it  thence  to  any  port,  either  foreign  or  do- 
mestic. The  entire  district  around  the  city  was  then  under 
military  government.  The  permit  purported  to  be  issued  pur- 
suant to  a  policy  approved  and  directed  to  be  carried  into  effect 
by  the  United  States  military  officer  commanding  there,  and 
was  endorsed  "approved"  by  the  rear-admiral  in  command  of 
the  blockading  squadron  on  that  coast.  The  orders  and  in- 
structions of  the  military  commander  were  not  set  out,  but  it 
was  stated  that  they  were  in  the  hands  of  the  grantor  of  the 
permit.  Under  this  authorit}'  a  vessel  was  loaded  with  cotton 
at  Mobile,  within  the  enemy's  lines,  and  cleared  ostensibly  for 
Havana,  a  neutral  port.  On  approaching  the  United  States 
blockading  squadron  off  the  coast  it  was  fired  upon,  seized, 
and  together  with  its  cargo  condemned  as  prize  of  war.  The 
ground  of  forfeiture  was  that  the  so-called  license  under  which 
the  vessel  sailed  was  invalid.  It  was  not  granted  by  the  Presi- 
dent, nor  did  it  conform  to  the  regulations  established  by  the 
Secretary  of  the  Treasury.  It  was  a  nullity,  without  warrant 
in  law,  and  in  no  degree  protected  the  property  involved.  No 
importance  was  attached  to  the  approval  of  the  permit  by  the 
naval  commander  in  which  the  court  departed  from  the  prac- 
tice of  English  courts  under  similar  circumstances,  and  it  was 
remarked  that  if  the  mjhtary  commander  assumed  to  hcense 
trade  with  districts  controlled  by  the  enemy,  he  transcended  his 
authority,  as  under  the  law  the  President  alone  could  license 
trade,  and  the  Secretary  of  the  Treasury  alone  could  establish 
rules  by  which  it  was  to  be  regulated.  1 

279.  Nor  will  the  plea  of  expediency  be  permitted  to  im- 
pair the  inflexible  nature  of  the  rule  of  non-intercourse.  During 
the  Civil  War  it  frequently  happened  that  by  departing  from 
the  strict  construction  of  the  law,  apparent  or  even  very 
obvious  advantages  could  be  gained.     Military    commanders 

I.  5  Wallace,  p  632. 


278  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

under  such  circumstances  were  sometimes  led  to  assume  a 
licensing  authority.  When  tested  before  the  Supreme  Court, 
however,  this  course  was  invariably  condemned. 

The  case  of  the  Ouachita  cotton  will  illustrate  this;  it  dif- 
fered in  details  from  the  preceding,  but  the  conclusion  arrived 
at  was  the  same.i  Here  three  distinct  parties  claimed  the 
same  cotton.  Each  alleged  that  he  had  ptuchased  it,  under 
circumstances  giving  good  title  before  the  United  States  courts, 
either  from  the  Confederate  government  or  its  alienees.  The 
first,  a  citizen  of  a  loyal  State,  foand  himself  when  the  rebellion 
broke  out  in  the  midst  of  the  insurgent  territory.  He  was 
owner  of  some  boats  plymg  there  in  certain  waters.  Against 
all  his  efforts  to  prevent  it  the  Confederacy  took  military 
possession  of  the  boats,  agreeing  to  pay  a  fair  price  for  the  use 
thereof,  which  it  did  by  turning  over  to  him  through  its  au- 
thorized agents  the  cotton  in  question.  He  did  not  indeed 
take  manual  possession  of  it.  It  was  simply  stored  on  the 
plantation  where  it  was  raised  until  the  new  owner  should 
come  and  claim  it.  At  the  time  the  cotton  became  his  he 
was  a  resident  of  New  Orleans,  then  under  military  govern- 
ment of  the  Union  forces,  while  the  Confederate  agent  was 
within  territory  dominated  by  the  Confederacy.  The  trans- 
action was,  therefore,  a  case  of  dealing  between  inhabitants 
of  loyal  and  disloyal  districts.  The  same  was  true  of  each  of 
the  other  parties  claimant.  Each  at  the  time  he  purchased 
the  cotton  resided  in  New  Orleans,  then  under  the  military 
government  of  the  Union,  while  the  Confederate  agents  with 
whom  he  negotiated  were  inside  the  enemy's  lines.  Such 
dealings  were  illegal  unless  they  came  within  authorized  ex- 
ceptions to  the  rule  of  non-intercourse.  Each  party  endeav- 
ored to  show  that  this  was  true  in  his  particular  case.  The 
claim  of  the  first  was  based  on  assumed  loyalty,  and  the  hard- 
ship of  his  position,  having  his  property  violently  appropriated 
by  rebel  authority  when  the  government  of  his  allegiance 
could  no  longer  protect  him;  and  he  alleged  that  in  justice 

I    6  Wallace,  p.  521. 


TRADE  WITH  OCCUPIED  TERRITORY.  279 

he  should  be  permitted  to  accept  and  hold  under  the  actual 
circumstances  of  the  case  the  compensation  which  the  enemy 
pursuant  to  its  pledges  had  given  him.  It  could  not  be  denied 
that  the  transaction  in  strictness  violated  one  of  the  most  un- 
bending rules  of  war ;  but  the  equities  of  the  case  were  relied 
on  to  relieve  it  from  the  taint  of  illegality. 

The  claim  of  the  second  party  was  placed  on  different 
grounds.  The  capture  of  New  Orleans  had  surprised  his 
alienor  with  a  large  amount  of  Confederate  currency,  which  it 
was  alleged  the  Confederate  Government  had  forced  upon  him. 
It  being  valueless  there  after  the  capture,  and  its  effect,  if  it 
could  be  put  into  circulation  in  the  regions  yet  under  rebel 
control,  being  likely  to  yet  further  lower  the  value  of  Con- 
federate money,  while  if  cotton  could  be  got  for  it  and  brought 
into  loyal  regions,  that  would  add  to  the  resources  of  the 
United  States, — the  commander  of  the  Union  forces  author- 
ized the  use  of  the  currency  to  pmrchase  cotton  within  the 
rebel  lines.  The  purity  of  the  commander's  motives  was  not 
doubted.  His  zeal  in  the  cause  of  his  country  was  above  sus- 
picion. He  here  saw  an  opportunity  to  strike  the  enemy  a 
blow  by  depreciating  his  credit,  while  the  rescuing  a  valuable 
product  from  a  rebel  and  placing  it  under  loyal  control  would 
still  further  diminish  the  resources  of  the  Confederacy  and  add 
to  those  of  the  United  States.  And  certainly  the  purchase 
was  calculated  to  compass,  in  some  degree,  all  these  desirable 
purposes.  Granting  this,  it  still  remained  a  dealing  with  the 
enemy;  and  notwithstanding  the  motive  that  prompted  it 
or  the  desirabihty  of  the  objects  to  be  gained,  the  question  of 
the  vahdity  of  property  rights  thus  acquired  would  ultimately 
depend  upon  the  authority  of  the  commanding  general  to  grant 
permission  to  purchase.  Agreeably  to  this  permission,  pur- 
chase was  made  of  the  cotton  from  the  Confederacy  through 
one  of  its  authorized  agents. 

The  alienor  of  the  third  party  claimant  was  a  naturalized 
citizen  of  the  United  States,  and  purchased  the  cotton  of  an 
agent  of  the  Confederate  Government.    This  was  a  simple  case 


28o  MILITARY   GOVEKNMENT    AND    MARTIAL   LAW. 

of  trading  with  the  enemy.  There  was  nothing  about  the 
transaction  to  give  it,  when  assumed  rights  thereby  accruing 
were  put  in  Utigation,  any  standing  in  a  United  States  court. 
But  a  foreign  neutral  having,  in  good  faith  as  alleged,  purchased 
the  cotton,  he  now  came  forward  to  claim  it,  only  to  be  told, 
however,  that  his  alienor  having  had  no  valid  title,  he  could 
have  none. 

While  the  cotton  remained  on  the  plantation  where  it  was 
raised,  the  United  States  forces  penetrated  into  the  country, 
seized  it,  and  it  was  condemned  and  sold.  Neither  purchaser 
had  taken  possession  of  it  before  seizure  by  the  Government, 

280.  It  is  because  of  its  bearing  upon  the  question  of  au- 
thority of  a  commander  under  military  government  to  license 
trade  that  this  case  is  chiefly  interesting.  On  this  point  the 
Supreme  Court  said:  "Prohibition  was  the  rule  and  the 
license  to  trade  the  exception.  No  such  license  was  given 
by  the  President  to  either  of  the  parties  by  whom  the  pur- 
chases  of  the  cotton  were  made  from  the  agents  of  the  rebel 
government.  Those  given  by  the  military  authorities  were 
nullities.  They  conferred  no  rights  whatsoever.  No  one 
could  give  them  but  the  President.  From  any  other  source 
they  were  void.  The  law-making  power  in  its  wisdom  and 
caution  confided  this  important  authority,  so  liable  to  abuse, 
to  the  Chief  Magistrate  alone." 

The  case  of  Coppell  v.  Hall  illustrates  the  same  "principles.  1 
The  regulations  of  the  Treasury  governing  intercourse  with  the 
enemy  and  estabhshed  pursuant  to  law 2  said:  "Commercial 
intercourse  with  localities  beyond  the  lines  of  military  occupa- 
tion by  the  United  States  forces  is  strictly  prohibited,  and  no 
permit  will  be  granted  for  the  transporation  of  any  property 
to  any  place  under  the  control  of  insm-gents  against  the  United 
States."  At  the  date  of  the  issuance  of  these  regulations,  and 
before,  New  Orleans  was  in  military  occupation  of  the  United 
vStates  forces.     Most  of  the  cotton  region  around  the  city  was 


I.  7  Wallace,  p.  542,     2.  Act  July  13,   1861;   12  Statutes  at  Large, 
p.  257,  Sec.  5. 


I 


TRADE  WITH  OCCUPIED  TERRITORY.  201 

in  military  possession  of  the  enemy.  In  spite,  however,  of  the 
fact  that  the  President  alone  was  empowered  to  license  trade 
with  insurgent  districts,  which  could  only  be  conducted  under 
the  regulations  of  the  Treasury  Department,  the  commanding 
general  of  the  military  geographical  department  in  which  New 
Orleans  was  located  issued  orders  authorizing  the  trade  to  be 
conducted  on  the  Mississippi  River  within  that  department, 
subject  to  such  restrictions  as  should  be  necessary  to  prevent 
a  supply  of  provisions  and  munitions  of  war  being  carried  to 
the  enemy.  The  products  of  the  country  were  authorized  to 
be  brought  to  New  Orleans  and  other  designated  points  within 
the  military  lines  of  the  United  States,  and  sold  there  by  the 
proprietors  or  their  factors,  "for  the  legal  currency  of  the 
United  States,  without  restriction  or  confiscation."  ^  In  this 
state  of  orders,  civil  and  military,  Coppell,  a  British  subject, 
and  acting  British  consul  at  New  Orleans,  made  a  contract  with 
a  certain  Hall,  residing  in  that  city,  but  both  being  at  the  time 
of  the  contract  in  rebel  territory,  by  which  the  latter  agreed  to 
furnish  the  former  a  large  number  of  bales  of  cotton,  all  of 
which  was  in  districts  dominated  by  the  insurgents.  By  the 
contract  Coppell  agreed  to  cause  the  cotton  to  be  "protected" 
and  transported  to  New  Orleans,  receiving  as  the  consideration 
for  his  services  part  of  the  profits  of  the  sale.  The  "protec- 
tion" guaranteed  was  secured  by  Coppell  issuing  certificates  as 
British  consul,  stating  that  the  cotton  in  question  was  the 
property  of  British  subjects  and  duly  registered  as  such  at  the 
consulate  at  New  Orleans.  Under  these  "protections,"  and  es- 
caping destruction  from  either  government  or  rebels,  the  cot- 
ton remained  undisturbed  where  it  was  until  the  close  of  the 
war.  Hall  then  dechned  to  perform  the  contract.  Coppell 
thereupon  brought  suit  to  compel  performance,  alleging, 
among  other  things,  that  the  contract  was  made  under  the 
permission  expressed  in  the  mihtary  orders  before  referred  to. 
The  court  below  held  that  as  both  parties  were  residents  of  New 

I.  7  Wallace,  p.  551. 


282  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

Orleans,  the  contract  was  valid  under  the  law  of  nations,  and 
that  the  military  orders  then  in  force  authorized  and  gave 
validity  to  the  contract.  Judgment  going  for  the  plaintiff,  it 
was  reversed  on  appeal  to  the  Supreme  Court  of  the  United 
States.  The  contract  was  declared  to  be  against  public  policy 
and  void.  It  was  remarked  that  the  certificates,  even  if  issued 
in  good  faith,  were  nullities  and  could  give  no  immunity, 
while  in  fact  they  were  intended  to  operate  as  a  means  of  de- 
luding and  defrauding  the  United  States.  The  military  orders 
set  forth  in  the  record  of  the  case  were  pronoimced  unwar- 
ranted and  void,  as  the  subject-matter  was  wholly  beyond  the 
sphere  of  the  power  and  duties  of  the  military  authorities. 

In  the  case  of  McKee  v.  United  States,  i  it  appeared  that  a 
loyal  citizen,  resident  of  New  Orleans  when  that  city  and  the 
immediately  surrounding  territory  were  under  the  military  gov- 
ernment of  the  Union,  purchased  of  an  agent  of  the  Confed- 
erate Treasury  Department  in  western  Louisiana,  then  domi- 
nated by  the  rebels,  a  large  quantity  of  cotton,  the  private 
property  of  the  agent.  Regarding  the  situation  of  all  people 
thus  subject  to  military  government  the  Supreme  Court  had 
remarked  that  from  the  time  this  species  of  government  was 
established  over  them  they  were  clothed  with  the  same  rights 
of  property  and  were  subject  to  the  same  inhibitions  and  dis- 
abilities as  to  commercial  intercourse  with  territory  declared 
to  be  in  insurrection  as  the  inhabitants  of  the  loyal  State.  2  It 
was  plain,  therefore,  that  McKee's  purchase  was  illegal  and 
vested  no  property  rights  unless  the  transaction  was  duly 
authorized.  There  was  some  evidence,  not  satisfactory,  how- 
ever, tending  to  show  that  he  had  the  authority  of  a  treasury 
agent  to  trade  in  insurrectionary  territory.  And  it  was  con- 
ceded that  he  had  permission  from  the  military  commander 
of  the  forces  of  the  United  States  in  that  department  to  pass 
through  the  Federal  lines  into  the  rebellious  region  and  bring 

I.  8  Wallace,  p.  163.  2.  6  Wallace,  p.  531;  and  see  excepting  clause, 
President's  Proclarnation,  August  16,  1861,  i2Statutesat  Large,  p.  1262; 
also  2  Wallace,  p.  277. 


I 


TRADE    WITH    OCCUPIED    TERRITORY.  283 

away  any  property  that  he  might  purchase  there,  and  there 
was  even  evidence  tending  to  show  that  these  authorities  had 
actually  granted  him  a  license  to  trade.  The  cotton,  before 
being  removed  from  the  store-house  where  purchased,  was 
seized  by  the  United  States  military  authorities  and  regularly 
condemned  as  enemy  property.  On  appeal  to  the  Supreme 
Court  of  the  United  States  the  decree  was  affirmed.  The  court 
remarked  that  as  to  any  permission  to  trade  given  by  Treasury 
agents  it  afforded  no  protection,  as  the  agents  were  acting  out- 
side the  limits  of  their  authority.  It  was  further  observed  that 
the  power  of  the  military  extended  no  further  than  to  protect 
him  in  going  into  the  lines  of  the  enemy  and  bringing  from 
there  any  property  rightfully  acquired ;  if,  as  the  evidence  tend- 
ed to  show,  the  military  authorities  went  further  and  granted 
him  also  a  license  to  trade,  such  a  license  was  void.  In  one 
feature  this  case  differed  from  any  previously  mentioned.  As 
the  alienor  of  the  cotton  was  a  Confederate  Treasury  official, 
his  property,  under  the  provisions  of  Section  5  of  the  act  of 
July  17,  1862,  was  on  that  account  rendered  forfeitable,  and 
all  sales,  transfers,  or  conveyances  thereof  declared  illegal. 
Therefore,  at  the  time  of  the  purchase,  he  had  no  capacity  to 
dispose  of  it,  nor  could  McKee  acquire  title  to  it. 

281.  As  the  war  progressed  the  policy  of  the  Government 
regarding  commercial  intercourse  grew  more  restricted.  From 
first  to  last  trade  with  territory  within  the  enemy's  lines  was 
absolutely  prohibited  except  as  otherwise  provided  by  law. 
All  attempts  to  evade  the  rule  led  when  dectected  to  forfeiture 
of  the  property  involved.  At  first,  however,  it  was  deemed 
wise  to  encourage  private  enterprise  by  authorizing  such  lim- 
ited intercourse  with  insurrectionary  districts  as  would  not 
jeopardize  the  success  of  miUtary  operations.  It  was  with  this 
object  in  view  that  the  President  was  given  power  to  grant 
licenses  to  trade,  as  before  mentioned.  Responding  to  the 
liberal  sentiments  of  Congress,  the  President  excepted  from 
the  rule  of  non-intert^ourse  districts  where  the  loyalty  of  the 
people  was  pronounced.     He  went  further.     By  a  sweeping 


.84  MILITARY   GOVERNMENT  AND   MARTIAL  LAW. 

clause  in  his  proclamation  he  excepted  all  rebellious  districts 
which  from  time  to  time  were  occupied  and  controlled  by 
forces  of  the  United  States  engaged  in  the  dispersing  of  the  in- 
surgents. It  was  a  beneficent  executive  act,  conceived  in  a 
spirit  of  charity.  It  was  too  generous.  The  abuses  which 
grew  out  of  the  license  here  given,  even  restricted  as  it  was  by 
regulations  prepared  by  the  Secretary  of  the  Treasury,  which 
if  faithfully  executed  would  have  prevented  abuse,  led  first 
to  the  President  confining  commercial  intercourse  to  West 
Virginia  and  a  very  few  sea-ports  of  the  insurgent  territory, 
and  finally  to  additional  action  on  the  part  of  Congress  to  meet 
the  evil,  i  These  steps,  so  at  variance  with  the  original  policy 
of  the  Government,  were  not  taken  without  due  cause  and 
until  after  mature  reflection.  The  radical  departure  from 
previous  practices  which  they  indicated  proved  that  exper- 
ience had  taught  that  a  wholly  diflferent  rule  of  action  in  this 
regard  was  a  military  necessity. 

282.  The  mischiefs  attending  private  trading  with  the 
enemy  even  in  those  parts  of  the  insurrectionary  districts  for 
the  time  within  our  military  lines  were  seriously  felt.  The 
best  interests  of  the  country  required  that  it  should  cease. 
Yet  it  was  deemed  important  still  to  maintain  some  species 
of  commercial  intercourse.  The  Government  desired  to  have, 
if  it  did  not  interfere  with  military  operations,  the  products 
of  the  South,  and  particularly  cotton,  brought  within  the 
Union  lines.  To  accomplish  this  end  and  at  the  same  time 
avoid  the  complications  and  embarrassments  incident  to 
private  trading,  required  the  inauguration  of  a  new  system. 

This  was  begun  by  the  President  2  nd  completed  by  Con- 
gress in  the  act  of  July  2,  1864. 3  The  privilege  of  trading  with 
districts  redeemed  from  the  enemy  was  taken  away  from  the 
dtizens,  but  the  Secretary  of  the  Treastuy,  with  the  approval  of 
the  President,  was  allowed  to  ptuchase  through  agents  for  the 
United  States  the  products  of  such  districts.     Trade  therewith 

I.  13  Statutes  at  Large,  p.  731.  2.  See  ibid.  3.  Chap.  255,  13 
Statutes  at  Large,  p.  375. 


I 


TEADE  WITH  OCCUPIED  TEERITORY.  285 

became  a  Government  monopoly.  But  the  limitations  on  trade 
did  not  end  here;  even  with  insurrectionary  districts  domi- 
nated by  Union  arms,  all  commercial  intercourse  of  people 
residing  or  being  there  with  one  another  was  made  subject  to 
the  restrictions  of  the  act  of  July  13,  i86i ;  that  is,  it  could  only 
be  conducted  under  the  license  of  the  President,  and  in  con- 
formity with  regulations  prescribed  by  the  Secretary  of  the 
Treasury,  i  Further,  the  licensing  power  of  the  President 
under  that  act,  as  to  trade  between  loyal  districts  and  others 
rescued  from  rebellion,  was  repealed,  except  so  far  as  was 
necessary  to  supply  the  necessities  of  loyal  people  r-esiding 
there,  and  except  also  that  all  the  people  might,  under  proper 
regulations,  bring  into  the  markets  of  loyal  States  the  pro- 
ducts of  their  own  labor  or  of  otliets  employed  by  them. 
And  no  goods,  wares,  or  merchandise  were  permitted  to  be 
taken  within  the  lines  of  national  military  occupation  of  in- 
surrectionary districts,  except  in  such  quantities  and  at  such 
places  as  should  be  agreed  upon  in  writing  by  the  military 
commander  of  the  district  and  the  agents  of  the  Treasury  De- 
partment. 2  The  prohibition  of  trade  was  extended  to  any 
part  of  loyal  States  under  control  of  the  insurgents,  or  in 
dangerous  proximity  to  places  under  their  control,  except  as 
prescribed  by  the  Secretary  of  the  Treasury  with  the  approval 
of  the  President. 

We  can  not  misunderstand  the  object  of  this  law.  It  was 
intended  to  put  a  stop  to  all  private  trade  with  insurrectionary 
districts  held  by  the  national  arms,  and  it  would  have  been  dif- 
ficult to  formulate  language  better  calculated  to  compass  that 
end.  As  for  authorizing  any  species  of  trade,  whether  on  be- 
half of  the  Government  or  by  private  citizens,  with  territory  in- 
side the  enemy's  lines,  no  such  proposition  appears  to  have 
been  dreamed  of,  and- no  regulations  promulgated  by  the  Sec- 
retary of  the  Treasury,  either  in  pursuance  of  this  law  or  at 
any  other  time,  contemplated  such  intercourse. 

I.  Sec.  4,  Chap.  255,  13  Statutes  at  Large.     2.  Sec  9,  ibid. 


286  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

283.  As  might  be  anticipated,  attempts  to  evade  these  laws 
were  very  numerous.  But  the  national  courts  were  filled 
with  loyal  judges.  The  national  judiciary  sustained  the  other 
departments  of  Government  with  a  steady  and  strong  hand. 
This  was  well  illustrated  in  the  case  of  United  States  v.  Lane.' 
Under  Section  8  of  the  act  of  July  2,  1864,  mentioned,  the  pur- 
chase of  products  of  insurrectionary  States  for  the  United 
States,  under  proper  regulations,  was,  as  just  observed,  per- 
mitted at  places  designated  by  the  Secretary  of  the  Treasury. 
Norfolk,  Virginia,  was  one  of  the  places  so  selected.  In  the 
case  mentioned  it  appeared  that  the  Treasury  agent  at  Norfolk 
granted  permission  to  a  citizen  of  a  loyal  State  to  enter  the 
enemy's  lines  with  a  cargo  of  assorted  merchandize,  and  bring 
thence  into  the  Union  lines  at  Norfolk  a  return  cargo  of  cotton. 
The  military  commander  of  that  district  through  which  the 
vessel  passed  gave  her  safe-conduct.  On  her  return  voyage  she 
was  seized  by  the  Navy,  but  released  after  a  slight  detention, 
only,  however,  to  be  seized  by  the  same  authorities  before  she 
reached  her  destination,  Norfolk.  Being  brought  thence  to 
Washington,  D.  C,  the  vessel  was  libeled,  at  the  instance  of 
the  United  States,  in  the  Supreme  Court  of  the  District  of  Co- 
lumbia, sitting  in  admiralty;  but  decree  with  costs  went  against 
the  libellant. 

There  could  not  be  a  clearer  case  of  trading  with  the  enemy 
for  private  profit  than  this.  And  yet,  down  to  the  point  now 
reached,  it  had  the  sanction  of  the  Treasury  official  directly 
interested,  the  military  commander,  the  Navy  officers  in  part, 
and  the  judiciary.  Before  the  cotton  was  sold  the  price  had 
fallen,  and  suit  was  brought  in  the  Court  of  Claims  against  the 
Government  for  damages  caused  by  the  wrongful  detention  of 
the  vessel  by  the  Navy.  Here  again  the  ruling  was  against  the 
Government,  and  appeal  was  then  taken  to  the  Supreme  Court 
of  the  United  States,  where  the  judgment  was  reversed.  The 
contract  entered  into  between  the  Treasury  agent  at  Norfolk 
I.  8  Wallace,  p.  185. 


il 


TRADE  WITH  OCCUPIED  TERRITORY.  287 

and  Lane  for  bringing  out  the  cotton  was  pronounced  illegal 
and  without  any  binding  effect  upon  the  Government.  "At 
the  time  this  contract  purports  to  have  been  made,"  remarked 
the  court,  "this  country  was  engaged  in  a  war  with  a  formida- 
ble enemy,  and  by  a  universally  recognized  principle  of  pub- 
lic law  commercial  intercourse  between  States  at  war  with  each 
other  is  interdicted.  It  needs  no  special  declaration  on  the 
part  of  the  sovereign  to  accomplish  this  result,  for  it  follows 
from  the  very  nature  of  war  that  trading  between  belligerents 
should  cease.  If  commercial  intercourse  were  allowable,  it 
would  oftentimes  be  used  as  a  color  for  intercourse  of  an  en- 
tirely different  character,  and  in  such  a  case  the  mischievous 
consequences  that  would  ensue  can  be  readily  foreseen.  But 
the  rigidity  of  this  rule  can  be  relaxed  by  the  sovereign,  and  the 
laws  of  war  so  far  suspended  as  to  permit  trade  with  the  enemy. 
Each  State  settles  for  itself  its  own  policy  and  determines 
whether  its  true  interests  are  better  promoted  by  granting  or 
withholding  licenses  to  trade  with  the  enemy.  It  being  the 
rule,  therefore,  that  business  intercourse  with  the  enemy  is  un- 
lawful unless  directly  sanctioned,  the  inquiry  arises  whether 
there  was  any  law  of  Congress  in  force  at  the  time  that  sanc- 
tioned this  transaction." 

It  has  been  seen  that  the  act  of  July  2,  1864,  Section  8,  au- 
thorized the  purchase,  on  account  of  the  United  States,  of 
products  of  the  insurrectionary  States.  Standing  by  itself,  this 
language  is  broad  enough  to  authorize  trading  of  the  nature 
indicated  with  the  enemy.  But  the  statute  must  be  construed 
in  connection  with  other  statutes  on  the  same  subject  and  the 
legalized  practices  thereunder.  They  are  in  pari  materia,  and 
must  be  considered  together  as  one  system  and  as  explanatory 
of  each  other.^  Under  preceding  laws,  however,  such  trade 
was  absolutely  prohibited.  The  presumption  was  that,  unless 
Congress  expressly  provided  to  the  contrary,  this  policy  was  to 
be  continued.     This  Congress  did  not, do,  and  the  mere  absence 

I.  Sedgwick  on  Construction,  Constitutional  and  Statutory  Laws, 
pp.  209-10. 


288  MILITARY    GOVERNMENT    AND   MARTIAL   LAW 

of  express  words  of  limitation  as  to  the  character  of  tiade  that 
was  authorized  on  Government  account  in  the  8th  section  of  the 
act  was  not  to  be  construed  as  warranting  a  species  of  com- 
meicial  intercourse  which  previously  had  been  strictly  pro- 
hibited. This  view  was  strengthened  by  the  stringent  inhibi- 
tions on  trade  with  or  within  districts  dominated  by  the  Union 
arms  contained  in  the  4th  and  9th  sections  of  the  same  act. 
Reasoning  thus,  the  conclusion  reached  by  the  court  was  that 
the  trade  with  enemy  territory  which  this  so-called  contract 
professed  to  authorize  was  illegal,  and  that  all  who  had  sanc- 
tioned it,  including  the  military  commander  who  gave  the  safe- 
conduct,  had  transcended  their  powders. 

284.  In  Hamilton  v.  Dillin  the  licensing  power  of  the  Presi- 
dent and  the  legal  effect  of  Treasm-y  regulations  regarding  trade 
with  the  insurrectionary  districts  again  came  up  for  review.  1 
The  revised  regulations  of  September  11,  1863,  directed  that 
four  cents  per  pound  should  be  paid  by  those  obtaining  per- 
mits to  purchase  cotton  in  insurrectionary  districts  and  biing  it 
into  loyal  States.  Dillin  was  the  sm-veyor  at  the  port  of  Nash- 
ville, Tennessee,  and  was  the  authorized  Treasury  agent  to  col- 
lect this  chaige  from  those  who,  under  proper  permits,  brought 
out  cotton  through  that  port.  Hamilton  was  one  of  these. 
During  1863  and  1864  he  paid  Dillin  large  sums  of  money  on 
account  of  this  charge,  which  he  afterwards  sought  to  recover 
back  on  the  ground  that  the  imposition  of  the  charge  was  an 
exercise  of  the  taxing  power  confided  by  the  Constitution  to 
Congress,  and  therefore  not  to  be  assumed  by  the  Executive 
Department. 2  But  the  court  held  otherwise;  that  the  impo- 
sition of  the  charge  was  an  exercise  of  the  war  powers  of  the 
Government;  that  Congress  had  entrusted  all  licensing  power 
to  the  President  and  this  was  a  proper  exercise  of  it.  "By 
the  Constitution  of  the  United  States,"  said  the  court,  "the 
power  to  declare  war  is  confided  in  Congress.  The  executive 
power  and  command  of  the  military  and  naval  forces  is  vested 

I.  21  Wallace,  p.  73.     2.  Constitution  U.  S.,  Art.  1,  Sec.  8,  clause  i. 


TRADE    WITH    OCCUPIED   TERRITORY.  289 

in  the  President.  Whether  in  the  absence  of  Congressional 
action  the  power  of  permitting  partial  intercourse  with  a  public 
enemy  may  or  may  not  be  exercised  by  the  President  alone, 
who  is  constitutionally  invested  with  the  entire  charge  of  hos- 
tile operations,  it  is  not  now  necessary  to  decide,  although  it 
would  seem  that  little  doubt  could  be  raised  on  the  subject." 
But  whatever  view  may  be  taken  of  the  precise  boundary  be- 
tween the  legislative  and  executive  powers  in  reference  to  the 
question  under  consideration,  no  doubt  can  be  entertained  that 
a  concurrence  of  both  affords  ample  foundation  for  any  regula- 
tions on  the  subject. 

There  was  another  point  of  interest  in  this  case.  Nashville 
was  captured  by  the  Federal  forces  at  an  early  period  of  the 
war — the  spring  of  1862.  Both  the  city  itself  and  the  country 
immediately  surrounding  it  were  thereafter  permanently  held 
to  the  Union  cause.  Was  Nashville,  therefore,  in  1863  and 
1864,  when  the  charge  of  four  cents  per  pound  on  cotton  was 
collected,  enemy  country?  If  so,  trade  therewith,  to  be  legal, 
must  be  licensed ;  but  if  it  were  not  enemy  territory,  commercial 
intercourse  therewith  would  be  free.  The  court  held  that  it 
must  be  regarded  at  the  time  the  mone\'S  were  paid  as  enemy 
territory.  The  whole  State  of  Tennessee  had  been  declared  by 
the  President  to  be  in  insurrection.  1  And  although  the  perma- 
nent occupation  of  Nashville  by  the  United  States  armies  would, 
under  the  terms  of  the  same  proclamation,  have  authorized 
trade  therewith,  yet  as  to  Nashville  or  any  part  of  Tennessee 
this  favorable  status  was  taken  away  by  subsequent  executive 
action.  2  At  the  time  these  moneys  were  paid,  therefore,  not- 
withstanding large  districts  of  Tennessee  were  permanently 
occupied  by  Union  forces;  that  an  eminent  citizen,  a  civilian, 
was  military  governor  of  the  State;  yet,  due  to  this  last  men- 
tioned action  of  the  President,  the  disabilities  of  insurrectionary 
and  enemy  territory,  returned  and  everywhere  rested  upon  it 
until  the  close  of  the  war. 


I.  Proclamation,  August  16,  1861;     l2  Statutes  at  Large,  p.    1262. 
2.  Proclamation,  April  2,  1863;  13  Statutes  at  Large,  p.  731. 
—19— 


290  MILITARY   GOVERNMENT   AND  MARTIAL  LAW. 

The  cases  cited,  and  which  might  be  multipHed,  make  clear 
that  commanders  governing  territory  miHtarily  occupied  have 
not  original  authority  to  license  trade  with  the  enemy.  It 
seems,  in  the  absence  of  statutory  inhibition,  to  be  within  the 
powers  of  the  President  to  authorize  them  to  do  this,  i  That 
the  concurrent  action  of  the  President  and  of  Congress  is  suffi- 
cient to  legalize  such  trade  does  not  admit  of  doubt.  Com- 
manders have  occasionally  assumed  the  authority  here  denied 
them.  Nor  is  this  matter  of  surprise,  for,  as  they  unquestion- 
ably may  authorize  whatever  is  necessary  to  supply  their  troops 
partially  or  wholly  from  the  products  of  the  occupied  country, 
and  in  the  most  convenient  manner  gather  its  resources  as  mili- 
tary contributions,  which  in  one  sense  may  be  said  to  be 
licensing  trade,  it  is  not  under  all  circumstances  easy  to  define 
the  limits  of  their  power  in  this  dii-cction.  2  It  is  private  trade, 
usually  called  commercial  intercourse,  that  is  prohibited.  The 
sole  authority  of  the  military  commander  is  not  sufficient  to 
vest  legal  title  in  property  thus  acquired.  Instances  of  this 
kind  which  grew  out  of  the  Civil  War  are  numerous.  In  the 
determination  of  the  cases  that  came  before  the  Supreme  Court 
of  the  United  States  a  position  was  uniformly  taken  adverse  to 
the  licensing  power. 

285.  The  rule  of  non-intercourse  requires  nothing  moie  to 
bring  it  into  operation  than  the  existence  of  war.  But,  as  be- 
fore remaiked,  wars  do  not  always  begin  in  the  same  manner — 
in  some  cases  being  entered  upon  with  great  deliberation,  while 
in  others  they  are  precipitated  unexpectedly  from  sheer  force  of 
circumstances?  3  Nor  does  every  unfriendly  act  necessarily 
presage  hostilities.  International  law  recognizes  several  meas- 
ures, warlike  in  their  nature,  which  may  be  resorted  to  without 
necessarily  precipitating  war,  although  they  are  generally  pre- 
liminary thereto.  An  embargo  or  sequestration  may  be  laid  on 
the  ships  or  goods  of  an  offending  nation;  forcible  possession 

I.  Kent,  I.,  p.  92,  note  (b);2i  Wallace,  p.  87;  20  Howard,  p.  176; 
16  Howard,  p.  164.  2.  Halleck,  Chap.  28,  Sees.  2,  3.  3.  2  Black,  p.  668; 
Wheaton,  Sec.  298. 


TRADE    WITH    OCCUPIED   TERRITORY.  29 1 

may  be  taken  of  the  thing  in  controversy;  retahation,  vindic- 
tive or  amicable,  may  be  practiced;  and  reprisals  may  be  au- 
thorized. 1  These  are  extreme  measures ;  they  border  on  the 
domain  of  belligerency;  but  they  do  not  of  themselves  inter- 
rupt private  trade. 

286.  The  War  of  18 12  between  the  United  States  and  Great 
Britain  was  begun  by  act  of  Congress  of  June  i8th  of  that  year.  2 
By  that  act  all  the  inhabitants  of  the  one  became  technically 
enemies  of  those  of  the  other  country.  Commercial  intercourse 
thereafter  between  them,  except  under  government  license, 
was  illegal.  The  war  with  Mexico  presented  another  phase  of 
the  same  subject.  Not  until  after  battles  had  been  fought  was 
it  announced  by  act  of  Congress  to  the  citizens  of  the  United 
States  that  a  state  of  war  existed.  3  That  hostilities  had  been  in 
progress  both  before  and  at  the  date  of  the  passage  of  that  act 
did  not,  however,  render  illegal  commercial  transactions  be- 
tween citizens  of  the  respective  belligerents  before  that  date, 
or  subject  property  embarked  therein  to  condemnation.  The 
President  had  not,  because  war  was  flagrant,  prior  to  Congres- 
sional recognition,  indicated  the  principles  upon  which  it 
should  be  conducted  further  than  by  beating  the  enemy's 
armies  in  the  field.  That  he  had,  by  virtue  of  his  authority 
as  commander-in-chief,  full  power  to  conduct  hostilities  in  ac- 
cordance with  the  laws  of  war  is  not  questioned.  That  under 
this  power  he  might  have  restricted  trade  with  the  enemy 
until  Congress  could  act  in  the  premises  is  scarcely  open  to 
doubt. 4  The  date  of  the  act  of  Congress,  therefore,  was  that 
which  marked  the  period  when  commercial  intercourse  between 
the  belligerents  became  illegal. 

287.  It  is  thus  evident  that  to  interdict  trade  between 
nations  the  people  must  have  legal  warning  that  war  exists. 
That  knowledge  is  generally  brought  home  to  them  by  a  dec- 
laration to  that  effect  on  the  part  of  that  branch  of  the  gov- 


I.  Wheaton,  International  Law,  Sec.  290.  2.  Chap.  102,  2  Statutes 
at  Large,  p.  755.  3.  May  13,  1846,  Chap.  16,  9  Statutes  at  Large,  p.  9. 
4.   2  Black,  p.  668;  21  Wallace,  p.  87;  91  U.  S.,  p.  11. 


292  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

ernment  which  under  the  organic  law  is  entrusted  with  the  de- 
cision of  the  question  of  war  or  peace.  This  department  of 
government  may  be  either  the  executive  or  legislative,  de- 
pending on  the  Constitution  of  the  State,  or  the  particular 
circumstances  of  the  case. 

288.  Commercial  intercourse  is  the  rule  among  the  peoples 
of  the  earth,  unrestricted  except  by  treaties  or  by  municipal 
laws.  It  will  not  be  rendered  illegal  by  implications  drawn 
from  particular  and  isolated  cases  of  hostile  actions  which 
may  or  may  not  precipitate  a  state  of  war.  Reason  requires 
that  before  the  normal  state  of  trade  can  be  interrupted,  and 
property  engaged  therein  be  rendered  forfeitable,  those  who 
are  interested  should,  in  some  unequivocal  maimer,  be  informed 
that  it  will  no  longer  be  permitted  or  be  allowed  only  under 
particular  conditions,  and  this  view  conforms  to  the  practice 
of  nations,  the  writings  of  publicists,  and  the  decisions  of 
jurists. 

The  opinion  of  the  Supreme  Court  of  the  United  States  in 
Mathews  v.  McStea  is  instructive  on  this  point.  1  In  that  case 
a  bill  of  exchange,  dated  New  Orleans,  April  23,  1861,  in  favor 
of  McStea  and  payable  in  one  year,  was  accepted  on  the  day  of 
its  date  by  the  firm  of  which  Mathews  was  a  member.  Math- 
ews was  a  resident  of  New  York  and  the  other  members  of 
the  firm  were  residents  of  New  Orleans.  The  bill  of  exchange 
being  dishonored,  and  suit  against  Mathews  brought  thereon, 
the  defense  was  set  up  that  before  the  acceptance  the  co-part- 
nership was  dissolved  by  the  War  of  the  Rebellion.  This 
defense  was  not  rustained  by  the  court  of  common  pleas  for 
the  city  and  county  of  New  York,  and  its  judgment  was  af- 
firmed by  the  court  of  appeals  and  the  judgment  of  the  latter 
by  the  Supreme  Court  of  the  United  States. 

That  the  Civil  War  had  an  existence  commencing  before  that 
date  was  admitted  as  an  established  fact.  This,  it  will  be  re- 
membered, was  determined  in  the  prize  cases  in  which  it  was 
held  that  the  President's  proclamation  of  April  19.  1861,  set- 

I.  91  U.  S.,  p.  7. 


TRADE    WITH    OCCUPIED   TERRITORY.  293 

ting  on  foot  a  blockade  of  the  ports  of  Louisiana  among  other 
States,  was  conclusive  evidence  that  a  state  of  war  existed  be- 
tween the  people  inhabiting  those  States  and  the  United  States. 
It  was  conceded,  as  a  general  rule,  to  be  one  of  the  immediate 
consequences  of  a  declaration  of  war,  and  the  effect  of  a  state  of 
war  even  when  not  declared,  that  all  commercial  intercourse 
and  dealing  between  the  subjects  or  adherents  of  the  contending 
powers  is  unlawful  and  is  interdicted;  further,  that  it  dissolves 
commercial  partnerships  existing  between  those  subjects  prior 
to  the  war.  In  this  regard  it  was  admitted  that  civil  war,  par- 
ticularly when  sectional,  brought  with  it  all  the  consequences 
which  attend  upon  and  follow  a  state  of  foreign  war. 

Now  the  acceptance  of  the  bill  of  exchange  in  question  was 
of  a  date  when  it  was  conceded  that  a  state  of  war  existed. 
Moreover,  the  President,  by  a  belligerent  act,  the  issuing  a 
proclamation  of  blockade,  had  announced  to  the  world  that 
war  was  being  waged,  and  property  captured  at  sea  violating 
the  blockade  was  condemned  as  prize  of  war.  The  presumption 
that  the  same  executive  act  dissolved  existing  partnerships  and 
interdicted  trade  certainly  would  not  therefore  seem  to  be  a 
violent  one.  Yet  the  court  decided  that  such  was  not  the  case 
in  this  instance. 

The  reasoning  by  which  this  conclusion  was  arrived  at  is  in- 
teresting. It  was  observed  that  while  the  rule  interdicting 
commerce  and  dissolving  partnerships  before  laid  down  was 
general,  it  was  not  without  exceptions.  Trading  with  the 
enemy  may  be  authorized  by  the  sovereign.  This  is  a  partial 
suspension  of  the  laws  of  war,  but  not  of  the  war  itself.  This 
being  so,  a  state  of  war  and  at  the  same  time  the  maintenance 
of  commercial  intercourse  being  permissible  under  proper  cir- 
cumstances and  authority,  the  question  to  be  decided  was 
whether  such  intercoruse  was  permitted  between  the  loyal  citi- 
zens of  the  United  States  and  the  citizens  of  Louisiana  until 
the  23d  of  April,  1861.  In  determining  this  the  character  of 
the  war  and  the  manner  in  which  it  was  commenced  ought  not 
to  be  overlooked.     No  declaration  of  war  was  ever  made. 


294  mLITARY   GOVERNMENT   AND   MAETIAL   LAW. 

When  the  President  recognized  its  existence  by  the  proclama- 
tion of  blockade,  April  19,  1861,  it  then  became  his  dui^y  as 
well  as  his  right  to  direct  how  it  should  be  carried  on.  "In 
the  exercise  of  this  right  he  was  at  liberty  to  allow  or  license 
intercourse,  and  his  proclamations,  if  they  did  not  license  it  ex- 
pressly, did,  in  our  opinion,  license  it  by  very  cogent  impli- 
cations. It  is  impossible  to  read  them  without  a  conviction 
that  no  interdiction  of  com.mercial  intercourse  except  through 
the  ports  of  the  designated  States  was  intended." 

The  first  was  that  proclamation  of  April  15,  1861,  calling  out 
the  militia  to  repossess  the  forts,  places,  and  property  of  the 
United  States  seized  b)'  the  insurgents.  1  But  while  this  was 
to  be  done  it  was  expressly  enjoined  that  the  utmost  care  be 
observed,  consistently  with  these  objects,  to  avoid  devastation, 
destruction,  or  interference  with  property,  or  disturbance  of 
peaceful  citizens  in  any  part  of  the  country.  This  proclama- 
tion did  not  proceed  upon  the  principle  that  the  people  of  the 
States  where  the  unlawful  combinations  existed  were  to  be 
treated  as  public  enemies.  The  forts  and  public  property 
which  it  was  here  proposed  to  retake  had  been  seized  by 
armed  forces.  Hostilities  had  commenced,  and  in  the  hght 
of  subsequent  events  it  must  be  considered  that  a  state  of  war 
then  existed.  Yet  the  proclamation  was  not  a  distinct  recog- 
nition of  an  existing  state  of  war.  The  armed  force  of  the 
nation  was  to  be  used  to  wrest  the  public  property  from 
the  hands  of  those  who  had  formed  combinations  against  the 
authority  of  the  United  States;  but  further  than  this  the  peo- 
ple were  to  be  treated  as  friends.  Even  the  blockade  was  in- 
stituted with  a  view  only  to  the  protection  of  the  public  peace 
and  the  lives  and  property  of  quiet  and  orderly  citizens  who 
within  the  insurrectionary  States  were  pursuing  their  lawful 
occupations.  Hence  the  court  inferred  that  the  only  inter- 
ference with  the  business  relations  of  citizens  in  all  parts  of  the 
country  contemplated  by  the  proclamation  was  such  as  the 

I.   12  Statutes  at  Large,  p.  1258. 


TRADE   WITH   OCCUPIED  TERRITORY.  295 

blockade  might  cause.  And  in  confirmation  of  this  view  the 
fact  was  cited  that  the  mail  service  was  continued  in  Louisiana 
and  the  other  insurrectionary  States  long  after  the  blockade 
was  declared;  a  fact  which,  if  it  did  not  authorize  business 
intercourse,  was  well  fitted  to  deceive  the  public.  "But,"  it 
was  truthfully  remarked,  "in  a  civil  more  than  in  a  foreign 
war,  or  a  war  declared,  it  is  important  that  unequivocal  notice 
should  be  given  of  the  illegality  of  trafhc  or  commercial  inter- 
course, for  in  a  civil  war  only  the  government  can  know  when 
the  insurrection  has  assumed  the  character  of  war." 

If,  however,  the  proclamations  considered  by  themselves  left 
the  question  of  non-intercourse  in  doubt,  the  Act  of  Congress  of 
July  13,  1 86 1,  before  cited,  put  the  matter  at  rest.  That  act 
was  passed  in  view  of  the  state  of  the  country  then  existing, 
and  of  the  proclamations  which  the  President  had  issued.  It 
authorized  the  President  in  a  case  described,  and  which  then 
existed,  to  declare  by  proclamation  that  the  inhabitants  of  cer- 
tain States  were  in  a  state  of  insurrection  against  the  United 
States;  "and  thereupon  all  commercial  intercourse  by  and  be- 
tween the  same  and  the  citizens  thereof,  and  the  citizens  of  the 
rest  of  the  United  States,  shall  cease  and  be  unlawful  so  long  as 
such  condition  of  hostility  shall  continue."  Pursuant  to  the 
terms  of  the  act,  the  proclamation  of  August  16,  1861,  was  is- 
sued, interdicting  all  commercial  intercourse  between  the  sub- 
jects of  the  parties  belligerent  with  certain  exceptions  provided 
for  in  the  act.  1  Both  act  and  proclamation  exhibit  a  clear  im- 
plication that  before  the  first  was  enacted  and  the  second  issued 
commercial  intercourse  was  not  unlawful.  What  need  of  de- 
claring that  it  should  cease  if  it  had  ceased,  or  been  unlawful 
before?  The  enactment  that  it  should  not  be  permitted  after 
a  day  then  in  the  future  must  be  considered  an  implied  appre- 
ciation that  up  to  that  day  it  was  lawful,  and  certainly  Congress 
had  the  power  to  relax  any  of  the  ordinary  rules  of  war.  2 

289.  The  question  as  to  when  commercial  intercourse  be- 

I.   12  Statutes  at  Large,  p.  256.     2.  21  Wallace,  p.  97. 


296  MILITAEY    GOVEKNMENT   AND   MAETIAL   LAW. 

tween  the  subjects  of  opposing  belligerents  becomes  illegal  is 
reducible  to  a  few  simple  principles.  First,  war  places  every 
individual  of  the  respective  governments,  as  well  as  the  gov- 
ernments themselves,  in  a  state  of  hostility;  second,  individual 
citizens  or  subjects  do  not  determine  each  for  himself  that  a 
state  of  war  either  shall  or  does  exist ;  this  exercise  of  sovereign 
power  is  confided  to  that  department  of  government  alone 
which  under  varying  circumstances  is  entrusted  with  the  de- 
fense of  the  nation  or  vindicating  its  honor ;  and  until  that  de- 
termination is  duly  notified  to  the  citizens  or  subjects,  they 
have  a  right  to  presume  that  the  laws  and  immunities  of  peace 
prevail;  third,  when  this  notification  is  conveyed  to  citizens 
or  subjects  trading  with  the  enemy  becomes  illegal  and  property 
engaged  therein  becomes  subject  to  condemnation;  this  rule 
is  in  general  inflexible,  but  its  severit}^  may  be  relaxed  either 
expressly  by  act  of  the  notifying  power  or  by  inference  from 
particular  circumstances;  fourth,  a  formal  declaration  of  war 
is  such  a  notification;  fifth,  when  hostilities  are  precipitated 
without  this  formality,  as  is  sometimes  the  case  with  foreign 
and  always  with  civil  wars,  a  proclamation  or  manifesto  an- 
nouncing the  fact,  issued  by  that  department  of  the  govern- 
ment upon  which  devolves  the  duty  of  meeting  the  danger 
and  directing  to  that  end  the  military  forces  of  the  nation, 
brings  home  to  all  the  subjects  thereof  sufficient  notification 
that  to  the  extent  indicated  in  the  proclamation  trade  with  the 
enemy  is  interdicted. 

290.  The  unlawfulness  of  trade  with  the  enemy  extends  not 
only  to  every  place  within  hie  dominions  and  subject  to  his  gov- 
ernment, but  also  to  all  places  in  his  possession  or  military  occu- 
pation, even  though  such  occupation  has  not  ripened  into  a 
conquest  or  changed  the  national  character  of  the  inhabitants. 
In  each  case  there  is  the  same  hazard  to  the  State,  and,  if  the 
hostile  occupation  is  known  when  the  communication  is  at- 
tempted, there  is  the  same  breach  of  duty  on  the  part  of  the 
subject.  The  reasons  of  public  policy  which  forbid  such  inter- 
coiurse  apply  as  fully  in  the  one  case  as  in  the  other.     The 


I 


TRADE   WITH   OCCUPIED  TEERITORT.  297 

same  rule  holds  even  in  the  case  of  revolted  territory  or  colony 
of  the  enemy  which  is  known  to  have  been  for  years  in  the 
hands  of  the  insurgents.  Courts  of  justice  always  regard  such 
revolted  territory  as  belonging  to  the  enemy  until  by  some 
public  act  of  their  own  government  it  is  expressly  recognized 
as  an  independent  or  friendly  power,  i 

291.  Not  only  intercourse  and  trade  with  districts  wrested 
from  the  eneniy,  but  the  entrance  there  of  all  persons  whom- 
soever, is  subject  strictly  to  regulations  established  by  the 
military  commander,  his  superiors,  or  his  government.  Such 
it  has  been  uniformly  held  by  the  United  States  authorities  is 
the  effect  of  the  military  occupation  of  enemy  country.  All 
rights  of  the  occupier  rest  upon  superior  military  power.  If 
necessary,  he  resorts  to  any  measure  justified  by  the  laws  of 
war  to  maintain  the  advantages  he  has  gained.  For  the  time 
being  the  conquered  territory  is  his.  The  inhabitants  by  ac- 
cepting protection  to  life  and  property,  to  the  degree  at  least 
to  which  it  is  extended,  are  bound  not  to  jeopardize  his  military 
interests.  Commercial  intercourse  with  their  former  fellow- 
subjects  beyond  the  conquered  district  would  clearly  do  this. 
Every  objection  to  trading  with  the  enemy  under  ordinary 
circumstances  applies  with  increased  force  here.  To  permit 
it  would  weaken  the  power  of  the  invader  and  strengthen  his 
adversary;  facilities  would  thus  be  given  for  conveying  intel- 
ligence, maintaining  correspondence  forbidden  by  the  laws 
of  war,  and  would  add  to  the  warlike  resources  of  the  enemy. 
A  course  of  conduct  so  pregnant  with  danger  to  the  conquering 
power  will  not  be  tolerated,  and  the  measures  taken  by  the 
conqueror  to  place  upon  it  the  seal  of  his  disapprobation  will 
be  correspondingly  severe.  It  is  not  the  practice  of  military 
commanders  to  deal  gently  with  those  who,  while  accepting 
the  benefits  of  a  government  which  in  amelioration  of  the  strict 
rules  of  war  has  been  established  over  them,  seek  to  impair 


I.  Halleck,  Chap.  21,  Sec.  20;  Woolsey,  5th  ed.,  Sec.  124;  Kent,  I. 
68  (c);  but  see  The  Hoop,  i  Rob.  Rep., -p.  209,  for  exceptions  cited. 


I 


298  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

its  power  or  adhere  to  the  enemy  giving  him  aid  and  comfort. 
In  this  respect  there  is  no  difference  in  the  situations  of  per- 
sons inhabiting  the  territory  militarily  occupied.  Whether 
subjects  of  the  vanquished  State  or  of  a  neutral  power,  their 
obligations  are  equally  strong  to  do  nothing  to  prejudice  the 
interests  of  the  government  which  the  conqueror  establishes 
over  them.  And  as  to  all  persons  who  did  not  reside  or  were 
not  found  in  the  territory  when  it  was  occupied,  whatever 
may  be  their  nationality,  the  conqueror  alone  determines 
upon  what  terms  if  at  all  they  shall  be  permitted  either  to 
enter  the  occupied  district  or  to  hold  communication  or  busi- 
ness relations  with  the  inhabitants  thereof.  Either  to  admit 
them  or  to  permit  the  intercourse  is  a  relaxation  of  the  strict 
rules  of  war. 

292.  There  are  some  exceptions  to  this  rule  of  commercial 
non-intercourse.  Halleck  confines  them  to,  first,  the  mere  ex- 
ercise of  the  rights  of  humanity,  and,  second,  the  trade  sanc- 
tioned by  license  issued  by  proper  authority  and  which  has 
just  been  considered.  1  The  exceptions  to  the  rule,  Wheaton 
remarks,  far  from  weakening  its  force,  confirm  and  strengthen 
it.  They  resolve  themselves  into  cases  where  the  trading  was 
with  a  neutral,  or  the  circumstances  were  considered  as  im- 
plying a  license,  or  the  trading  was  not  consummated  until 
the  enemy  had  ceased  to  be  such.  2  Kent  mentions  also  the, 
case  of  ransom-bills,  which  are  contracts  of  necessity  founded 
on  a  state  of  war,  and  from  their  very  nature  carry  with  them 
evidence  of  the  fidelity  of  the  parties  to  their  respective  gov- 
ernments. 3  The  first  exception  mentioned  by  Halleck  is  based 
upon  the  principle  laid  down  by  Vattel,  that  when  a  subject 
can  neither  receive  his  sovereign's  orders  nor  enjoy  his  pro- 
tection he  assumes  his  natural  rights  and  is  to  provide  for  his 
own  safety  by  any  just  and  honorable  means  in  his  power.  4 
Accordingly  it  was  decided  that  where  two  British  subjects 

I.  Chap.  21,  Sec.  2.     2.  Part  IV.,    Sec.    315.     3.  Vol.    i,   p.   68  and 
note  (a);   7  Peters,  p.  593.     4.   Book  III.,  Chap.  16,  Sec.  264. 


I 


TRADE    WITH   OCCUPIED   TERRITORY.  299 

were  declared  prisoners  in  France,  and  one  of  them  drew  a  bill 
in  favor  of  another  on  a  third  British  subject,  resident  in 
England,  and  such  payee  endorsed  the  same  in  France  to  an 
aHen  enemy,  it  was  held  that  the  transaction  was  legal  and 
that  the  alien's  right  of  action  was  only  suspended  during  the 
war,  and  that  on  the  return  of  peace  he  might  recover  the 
amount  from  the  acceptor;  for  otherwise  such  persons  would 
sustain  great  privations  during  their  detention,  and  for  the 
same  reason  it  was  held  that  it  is  no  objection  to  an  action  on 
such  bill  that  it  is  brought  as  to  part  in  trust  for  an  ahen 
enemy,  i  As  to  the  exception  of  ransom-bills  mentioned  by 
Kent  it  may  be  said  that  it  was  formerly  the  general  custom 
to  redeem  property,  particularly  that  captured  at  sea,  from 
the  hands  of  the  enemy  by  ransom.  When  municipal  regula- 
tions do  not  forbid,  such  contracts  are  undoubtedly  valid. 

293.  Although  contracts  entered  into  between  enemies 
during  war  are  illegal,  the  mere  fact  that  w^ar  is  declared  be- 
tween their  respective  governments  does  not  render  existing 
contracts  void.  2  If  they  be  not  confiscated  during  the  war, 
the  right  to  enforce  payment  revives  with  peace.  3  And  as  the 
creditor  cannot  sue  for  his  debt  during  the  war,  the  statute 
of  limitations  does  not  run  against  him  while  the  war  lasts.  4 
The  rule  of  non-intercourse,  unless  specially  so  determined 
by  the  sovereign  power,  does  not  apply  to  transactions  which 
are  to  take  place  entirely  in  the  territory  of  one  belligerent. 
Therefore,  if  the  enemy  creditor  have  an  agent  appointed 
before  the  war  in  the  territory  of  the  debtor,  payment  by  the 
latter  to  such  agent  would  not  be  unlawful.  5  It  does  not  fol- 
low that  the  agent  will  violate  the  law  by  remitting  to  his 
principal,  and  if  he  does,  he  becomes  responsible.  "The 
rule,"  says  Mr.  Justice  Washington,  "can  never  apply  in 
cases  where  the  creditor,   although  a  subject  of  the  enemy, 

I.  6  Taunton,  p.  23.7;  i  Marsh  Reports,  p.  558,  S.  C. ;  6  Taunton,  p. 
332;  Wharton,  Conflict  of  Laws,  Sec.  497.  2.  Bluntschli,  I.,  .Sees.  29,  30. 
3.  Manning,  p.  176;  Cobbett,  p.  108.  4.  6  Wallace,  p.  532;  9  Wallace,  p. 
678;  II  Wallace,  p.  508.     5.  9  Wallace,  p.  72;   7  Wallace,  p.  452. 


300  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

remains  in  the  country  of  the  debtor,  or  has  a  known  agent 
there  authorized  to  receive  the  debt,  because  the  payment  to 
such  creditor  or  his  agent  could  in  no  respect  be  construed 
into  a  violation  of  the  duties  imposed  by  a  state  of  war  upon 
the  debtor.  The  payment  in  such  cases  is  not  made  to  an 
enemy,  and  it  is  no  objection  that  the  agent  may  possibly 
remit  the  money  to  his  principal.  If  he  should  do  so,  the 
offence  is  imputable  to  him,  and  not  to  the  person  paying  him 
the  money."  1 

294.  The  ambassador  of  Germany  at  Washington  repre- 
sented in  1900  that  German  subjects  had  rights  of  trade  with 
the  Sulu  Archipelago,  Phihppine  Islands,  by  reason  of  certain 
protocols  of  date  anterior  to  the  taking  possession  there  by  the 
military  forces  of  the  United  States,  which  protocols,  it  was 
claimed,  created  a  servitude  permanently  attached  to  the  Sulu 
Islands,  and  with  which  the  military  government  legally  could 
not  interfere.  This  view  was  not  upheld.  The  position  taken 
by  the  military  government  was  sustained;  the  principle 
vindicating  that  the  regulating  trade  with  territory  subject 
to  military  government  was  a  matter  wholly  within  the  coti- 
trol  of  the  dominant  power.  2 

295.  The  rule  of  non-intercourse  is  based  on  public  policy, 
and  it  is  as  reasonable  as  it  h  inflexible.  Yet  we  have  just 
seen  that  the  rule,  rigorous  though  it  be,  does  not  under 
all  circumstances  taint  with  illegality  all  business-like  deal 
ings  between  those  who  legally  are  enemies.  What  then  is 
the  practical  limit  to  unlicensed  trade  which  cannot  be  passed 
without  either  rendering  the  transactions  void  or  rendering 
forfeitable  property  engaged  therein?  The  answer  is  believed 
to  be,  that  all  business  transactions,  trade,  or  commercial  in- 
tercourse which  is  inconsistent  with  the  state  of  war  between 
the  parties  belligerent  is  forbidden  to  their  subjects.  This  is 
the  general  statement  of  the  rule;  and  if  greater  particularity 
be  required,  it  may  be  stated  that  it  includes  any  act  of  vol- 

I.  I  Peters,  Circuit  Court,  p.  496;  106  U.  S.,  pp.  196,  244.  2.  Magoon, 
p.  316. 


TRADE   WITH   OCCUPIED   TERRITORY.  3OI 

untary  submission  to  the  enemy,  or  receiving  his'^protection ; 
any  act  or  contract  which  tends  to  increase  his  resources,  and 
every  kind  of  trading  or  commercial,  deahng  or  intercourse, 
whether  by  transmissions  of  money  or  goods,  or  orders  for  the 
delivery  of  either,  between  the  two  countries,  directly  or  in- 
directly, or  through  the  intervention  of  third  persons  or  partner- 
ships, or  by  contracts  in  any  form  looking  to  or  involving  such 
transmission,  or  by  insurances  upon  tiade  by  or  with  the 
enemy.  It  was  held,  accordingly,  that  when  during  the  Civil 
War  a  citizen  and  resident  of  Mississippi  made  a  lease  of  a 
cotton  plantation  there  to  a  citizen  of  Massachusetts  who 
was  then  in  Mississippi,  the  lessee  taking  possession,  paying 
rent  under  the  lease,  but  was  afterward  driven  off  by  the 
Confederate  cavalry,  and  action  was  brought  for  rent  in  arrear, 
the  lease  was  valid.  The  decision  was  based  on  the  consider- 
ation that  the  lease  in  question  was  entered  into  and  affected 
property  wholly  within  the  territorial  limits  of  one  of  the  bel- 
ligerents ;  that  it  in  no  manner  increased  the  warlike  resources 
of  one  or  diminished  those  of  the  other  belligerent;  hence  the 
reasons  of  public  policy  underlying  the  rule  had  no  applicabil- 
ity. The  rule  of  non-intercourse  as  just  given  was  laid  down 
as  the  correct  one,  and  it  was  insisted  that  fiu-ther  than  this 
it  did  not  extend. 


CHAPTER  XIII. 

Insurrection  against  Military  Gov«;rnment. 

296.  The  experience  of  the  world  has  made  the  question 
whether  the  conquered  have  a  right  to  rise  in  insurrection 
against  the  government  of  military  occupation  a  practically  im- 
portant one.  The  abstract  right  cannot  be  denied.  It  is  the 
privilege  of  any  people  to  change  the  existing  government  for 
sufficient  cause,  and  of  this  they  must  ultimately  be  the  judges. 
Mankind  has  always  asserted  and  maintained  the  right  to  do 
this.  Military  government  is  as  subject  to  the  rule  as  any 
other.  But,  as  a  question  disassociated  from  theory  and  ab- 
straction, the  right  of  insurrection  is  always  coupled  with 
considerations  of  expediency.  "Those  who  engage  in  rebel- 
lion must  consider  the  consequences.  If  they  succeed,  re- 
bellion becomes  revolution,  and  the  new  government  will 
justify  its  founders.  If  they  fail,  all  their  acts  hostile  to  the 
lightful  government  are  violations  of  law  and  originate  no 
rights  which  can  be  recognized  by  the  courts  of  the  nation 
whose  authority  and- existence  have  been  alike  assailed."  1 
It  particularly  behooves  those  who  contemplate  rising  against 
military  government  to  consider  well  the  consequences.  Re- 
bellion is  the  highest  crime  against  government.  Its  punish 
ment  has  been  correspondingly  severe.  This  being  true  of 
regular  governments  based  on  the  consent  of  the  governed 
who,  with  some  show  of  reason  may  claim  the  right  under 
changed  conditions  to  exercise  the  sovereign  power  of  deposing 
what  they  have  set  up,  how  much  more  is  it  likely  to  prove 
true  of  military  governments,  which,  so  far  as  the  conquered 
are  concerned,  are  at  best  mere  concessions  by  the  conqueror 

I.  Shortridge  &  Co.  v.  .Macon,  Chase's  Decisions,  p.  136. 


i 

I 


INSURRECTION    AGAINST    MILITARY    GOVERNMENT.  303 

from  his  extreme  rights  under  the  laws  of  war.  Exemplary 
punishment  is  dealt  out  to  those  who  unsuccessfully  rebel 
against  regular  governments;  in  the  case  of  insurgents  against 
military  governments  the  results  to  those  unsuccessfully  in- 
volved are  still  more  disastrous.  The  arbitrary  character 
of  the  latter  system  of  government  renders  summary  punish- 
ment easily  practicable,  and  the  circumstances  under  which 
it  is  instituted  renders  such  punishment  for  attempted  re- 
bellion particularly  necessary.  There  is  here  little  opportunity 
for  calm  judicial  determination  of  the  merits  of  the  insurgents' 
cause.  Prompt  and  unquestioned  obedience  on  the  part  of 
those  within  the  scope  of  its  authority  is  demanded  and  en- 
forced. Vigilance  to  detect  offences,  swiftness  and  certainty  in 
their  punishment,  is  the  rule  of  the  conqueror.  He  acts  on  the 
principle  that  those  who  accept  his  protection  must  give  him 
support,  or  at  least  not  scheme  against  him.  Failure  on  the 
part  of  the  people  to  heed  this  may  cause  the  conqueror  to 
revert  to  those  sterner  rights  of  belligerency  which  place  both 
the  persons  and  property  of  the  vanquished  at  his  mercy.  ' '  If 
the  inhabitants  of  the  occupied  territory  rise  in  insurrection," 
says  Hall,  "whether  in  small  bodies  or  en  masse,  they  cannot 
claim  combatant  privileges  until  they  have  displaced  the  occu- 
pation, and  all  persons  found  with  arms  in  their  hands  can  in 
strict  law  be  killed,  or,  if  captured,  be  executed  by  sentence  of 
court-martial.  Sometimes  the  inhabitants  of  towns  or  dis- 
tricts in  which  acts  of  the  foregoing  nature  have  been  done 
or  where  they  are  supposed  to  have  originated  are  rendered 
collectively  responsible  and  are  punished  by  fines  or  by  their 
houses  being  burned." 

Should  circumstances  render  rigorous  measures  of  repres- 
sion necessary,  the  commander  has  at  hand  the  power  promptly 
to  render  them  effective.  As  a  rule,  however,  only  the  leaders 
and  instigators  of  "a  military  insurrection  are  visited  with  the 
extreme  penalty,  while  the  common  people  involved  are  more 
leniently  dealt  with.  Sometimes  heavy  contributions  are 
levied  by  way  of  punishment  upon  the  place  or  district  of 


304  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

country  where  insurrection  occurs.  This  practice  is  justified 
on  the  ground,  first,  that  the  instigators  and  leaders,  being 
usually  the  originators  of  the  insurrection,  should  suff'er  the 
punishment  due  to  the  offence;  and,  second,  that  in  war  a 
community  is  justly  held  responsible  for  the  unlawful  acts  of 
its  members  where  individual  offende-rs  cannot  be  otherwise 
reached,  i 

297.  The  criminality  or  otherwise  of  military  insurrections 
must  ever  be  a  matter  of  opinion  in  each  particular  case.  As 
there  is  no  legal  tribunal  to  determine  upon  the  justice  of  a 
war,  so  there  is  none  to  determine  upon  that  of  a  military  in- 
surrection. If  successful,  the  world  generally  will  deem  it  to 
have  been  justifiable  and  patriotic;  if  otherwise,  the  reverse 
will  be  true.  "Although  the  operations  of  war,"  says  Vattel, 
"are  by  custom  generally  confided  to  regular  troops,  yet  if  the 
inhabitants  of  a  place  taken  by  the  enemy  have  not  promised 
or  sworn  submission  to  him,  and  should  find  a  favorable  op- 
portunity of  rising  on  the  garrison  and  recovering  the  place 
for  their  sovereign,  they  may  confidently  presume  that  their 
prince  will  approve  of  this  spirited  enterprise.  And  where  is 
the  man  that  will  dare  to  censure  it?  It  is  true,  indeed,  that 
if  the  townsmen  miscarry  in  the  attempt,  they  will  experience 
very  severe  treatment  from  the  enemy.  But  this  does  not 
prove  the  enterprise  to  be  unjust  or  contrary  to  the  laws  of 
war.  The  enemy  makes  use  of  his  right,  the  right  of  arms, 
which  authorizes  him  to  call  in  the  aid  of  terror  to  a  certain 
degree,  in  order  that  the  subjects  of  the  sovereign  with  whom 
he  is  at  war  may  not  be  willing  to  venture  on  such  bold  under- 
takings, the  success  of  which  may  prove  fatal  to  him." 2  He 
then  instances  the  case  of  the  inhabitants  of  Genoa,  who 
during  the  recent  war  suddenly  took  up  arms  and  drove  the 
Austrians  from  the  city,  remarking  that  the  republic  cele- 
brated an  annual  commemoration  of  this  happy  event  by 
which  she  recovered  her  liberty.     But  it  cannot  be  conceded 

I.  Tovey,  Martial  Law  and  Customs  of  War,  p.  53  (London,  i 
2.  Book  IIL,  Chap   15,  Sec.  228 


RESPONSIBILITY   OF    COMMANDERS.  305 

that  the  mere  fact  that  the  inhabitants  have  taken  an  oath 
under  the  dictation  of  the  conqueror  can  impair  the  right  to 
rise  against  him.  As  Vattel  suggests,  the  oath  is  forced  upon 
them,  and  they  are  under  no  obhgations  to  keep  it  longer 
than  self-interest  suggests  as  advisable.  They  have  the  right 
to  rise  if  they  wish,  but  they  must  be  prepared  to  abide  the  '^^/f 
consequences. 

298.  There  are  many  examples  of  military  insurrections 
and  of  the  punishment  inflicted  on  the  instugents,  who,  as  a 
rule,  have  been  put  down  with  a  firm  hand.     After  the  estab- 

NOTE. — The  following  extract  from  general  orders  issued  to  the 
Prussian  army  in  August,  1870,  gives  a  connected  view  of  the  acts  of  the 
French  population  punished  by  the  Germans  and  of  the  penalties  attached 
thereto :  ^ 

"Military  justice  is  established  by  these  presents:  |^ 

"  I  St.  It  will  be  apphcable  to  the  whole  extent  of  French  territory  occu- 
pied by  German  troops  in  engagements  tending  to  compromise  the  se- 
curity of  those  troops,  do  them  injury,  or  give  assistance  to  an  enemy. 

"Military  jurisdiction  will  be  regarded  as  in  force  and  as  proclaimed  for 
the  whole  extent  of  a  canton  as  soon  as  it  is  published  in  any  one  of  the 
places  belonging  to  it. 

"2d.  All  persons  who  do  not  make  part  of  the  French  army  and  who 
cannot  establish  their  standing  as  soldiers  by  outward  indication,  and 
who — 

"(o)  Serve  the  enemy  as  spies ; 

"(b)  Mislead  German  troops  under  pretense  of  guides; 

"(c)  Kill,  wound,  or  pillage  persons  belonging  to  the  German  army  or 
making  part  of  their  train ; 

"(d)  Destroy  bridges  or  canals,  damage  telegraph  Hues  or  railways, 
render  roads  impracticable,  burn  stores  (ammunition),  provisions,  or  the 
quarters  of  the  troops; 

"(e)  Take  arms  against  the  German  troops, — shall  be  punished  by 
death. 

"In  every  case  the  officer  ordering  the  trial  shall  appoint  a  mihtary  com- 
mission intrusted  with  investigating  the  matter,  and  pronounce  sentence. 
The  councils  of  war  can  condemn  to  no  other  punishment  but  that  of 
death.     Their  sentences  shall  be  immediately  executed. 

"3d.     The  communes  to  which  the  culprits  belong,  as  well  as  those 
communes  whose  territory  has  been  the  scene  of  the  criminal  action,  shall 
be  hable  in  every  case  to  a  fine  equal  to  the  sum  total  of  their  land  tax." 
(Hall,  International  Law,  pp.  433-34,  note.) 
—20— 


3o6  MILITARY  GOVERNMENT   AND   MARTIAL  LAW. 

lishment  of  a  gov'oriiment  in  New  Mexico  by  the  military  power 
of  the  United  States,  a  general  plan  of  reA^olt  was  sprung  sud- 
denly on  the  unsuspecting  authorities,  by  which  the  civil  gov- 
ernor and  many  other  officiah  newly  appointed  under  the  au- 
thority of  the  United  States  were  betrayed  and  murdered 
under  circumstances  of  gieat  atrocity.  The  inhabitants  of 
California  also  rose  in  various  places  against  the  military  gov- 
ernment established  over  them,  but  with  less  sanguinary  re- 
sults than  in  New  Mexico.  In  both  instances  the  government 
of  military  occupation  contented  itself  with  defeating  and  dis- 
persing the  insuigent  foices.  i  This  was  because  the  United 
States  Government  had,  as  before  remarked,  determined  upon 
a  permanent  conquest  of  these  Territories.  By  a  policy  of 
forbearance  it  was  hoped  ultimately  to  convert  the  people, 
including  the  insurgents,  into  loyal  citizens  of  the  Union. 
Hence  those  severely  repressive  measures  usually  attending 
the  suppression  of  military  insurrections,  and  the  effect  of 
which  is  expected  to  be  deterrent  of  future  disturbances,  were 
not  here  resorted  to. 

As  a  rule,  however,  the  means  made  use  of  to  put  down  in- 
surrections of  this  character  and  the  policy  pursued  towards  the 
rebels  afterwards  have  not  been  conciliatory.  In  the  cam- 
paign of  1796,  as  a  punishment  for  the  city  of  Pavia,  whose  in- 
habitants rose  against  the  French  troops,  Bonaparte  recap- 
tured the  place,  executed  the  leaders  of  the  revolt,  and  gave 
the  city  up  to  plunder;  In  1797  four  hundred  French  soldiers 
in  the  hospital  of  Verona  were  murdered  by  Venetian  insur- 
gents. The  insurrection  was  immediately  suppressed,  its 
authors  shot,  and  a  heavy  contribution  levied  on  the  city. 

The  Sepoy  revolt,  whether  we  consider  the  vast  extent  and 
inaccessible  nature  of  the  territory  over  which  it  was  spread, 
the  number  of  the  people  invol\^ed,  and  the  fanaticism  with 
which  they  pursued  their  scheme  of  so-called  deliverance,  or 
the  atrocities  which  on  either  side  characterized  its  progress 
and  suppression,    forms  the  most  impressive  incident  in  the 

I.  Mansfield's  Mexican  War,  pp.  98-99. 


INSURRECTION    AGAINST    MILITARY    GOVERNMENT.  307 

annals  of  British  India.  The  various  peoples  inhabiting  that 
peninsula  had,  one  after  another,  been  subjugated  by  the  arms 
and  diplomacy  of  Britain.  Under  carefully  considered  limit- 
ations, many  natives  had  been  incorporated  into  the  British 
East  India  army.  A  confidence  mutually  to  the  advantage 
of  rulers  and  subjects  was  established.  This  feeling  was  en- 
couraged by  the  people  and  relied  upon  by  the  conquerors, 
whose  system  of  government,  however,  was  essentially  that  of 
military  occupation.  It  was  against  this  rule  of  the  foreigner 
that  the  insurrection — born  of  religious  zeal — was  directed. 
The  result  is  a  melancholy  illustration  of  the  dangers  which 
attend  such  uprisings.  j' 

The  struggle  in  the  Spanish  Peninsula  from  1 808  to  1 8 1 2  af-  r 
fords  many  instances  of  similar  insurrections.  In  June,  1808, 
the  inhabitants  of  Cuenca,  Castile,  rose  in  arms,  and  being 
joined  by  a  force  of  7,000  or  8,000  peasants,  overpowered  and 
destroyed  a  French  detachment  left  in  that  town.  General 
Caulaincourt  was  ordered  to  suppress  the  uprising.  He  arrived 
before  the  town  early  in  July,  attacked  and  routed  the  insur- 
gents from  their  position  with  great  slaughter,  and  the  place, 
being  deserted  by  the  inhabitants,  was  given  up  to  pillage. 
The  contagion  of  revolt  was  widespread.  Scarcely  had  King 
Joseph,  alarmed  at  some  reverses  of  French  troops,  quitted 
Madrid  when  the  people  of  Biscay  prepared  to  rise.  In  Au- 
gust, 1808,  the  French  general  Merlin  came  down  on  the  un- 
fortunate Biscayans;  Bilbao  was  taken,  and,  to  use  the  em- 
phatic expression  of  the  King,  "the  fire  of  insurrection  was 
quenched  with  the  blood  of  1,200  men." 

299.  Notwithstanding  the  fact  that  Joseph  had  been  pro- 
claimed King  of^  Spain,  Napoleon  found  it  necessary,  during 
the  Peninsular  War,  as  we  have  seen,  to  establish  particular 
military  governments  in  numerous  provinces.  It  was  be- 
lieved to  be  essential  to  the  success  of  the  military  opera- 
tions. Against  these  there  were '  popular  and  irregular  up- 
risings, entailing  great  suffering  upon  the  peaceful  inhabitants, 
but  doing  little  for  Spanish  deliverance.     As  a  means  of  expel- 


308  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

ling  the  invaders  it  was  totally  inefficient,  and  even  as  an  auxi 
iary  to  regular  operations  its  advantages  were  counterbalanced 
by  its  evils.  "It  is  true,"  says  Napier,  "that  if  a  whole  na- 
tion will  but  persevere  in  such  a  system,  it  must  in  time  de- 
stroy the  most  numerous  armies.  But  no  people  will  thus 
persevere;  the  aged,  the  sick,  the  timid,  the  helpless,  are  all 
hinderers  of  the  bold  and  robust.  There  is  also  the  difficulty 
in  procuring  arms.  The  desire  of  ease,  natural  to  mankind, 
prevails  against  the  suggestions  of  honor,  and  although  the  op- 
portunity of  covering  personal  ambition  with  the  garb  of 
patriotism  may  cause  many  attempts  to  throw  off  the  yoke,  the 
bulk  of  the  invaded  people  will  gradually  become  submissive 
and  tranquil.  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."  ^ 

300.  Lord  Wellington  thought  of  reprisals  as  the  only  course 
proper  toward  the  French,  whose  alleged  cruelties  at  Santarem 
gave  rise  to  loud  complaints  from  the  inhabitants.  But  strict 
inquiry  revealed  the  fact  that  the  people,  after  having  sub- 
mitted to  the  French  and  received  their  protection,  took  ad- 
vantage of  every  opportunity  to  destroy  detachments  of  their 
troops,  and  that  the  cruelties  complained  of  were  retaliations 
for  such  conduct.  Wellington,  instead  of  visiting  punishment 
on  the  French  for  such  proper  measures  on  their  part,  enjoined 
the  natives  to  cease  from  such  warfare,  which  had  been  con- 
ducted on  the  simplest  principles — namely,  that  neither  side 
gave  any  quarter. 

301.  At  the  occupation  of  Strasburg  by  the  Germans  on 
the  28th  of  September,  1870,  after  its  capitulation,  a  Baden 
soldier  was  shot  in  a  by-street  and  another  wounded.  The 
assassin  was  captured  and  shot  on  the  spot.  General  Werder 
on  hearing  of  this  ordered  the  city  to  pay  a  contribution  of 
one  million  francs,   but  this  was  afterwards   remitted.     The 

I.   Book  IX.,  Chap.  i. 


INSURRECTION    AGAINST    MILITAEY    GOVERNMENT.  309 

next  day  the  following  order  was  issued:  "A  state  of  siege 
still  continues ;  crimes  and  offences  will  be  punished  by  martial 
law.  All  weapons  are  immediately  to  be  given  up.  All  news- 
papers and  publications  are  forbidden  until  further  orders. 
Public  houses  to  be  closed  at  9  p.  m.  ;  after  that  hour  every 
civilian  must  carry  a  lantern.  The  municipal  authorities 
have  to  provide  quarters  with  food,  for  all  men  directed  to  be 
thus  supplied."  1 

302.  Upon  the  subject  of  good  faith  owing  by  the  inhab- 
itants of  occupied  territory  to  the  military  government,  the 
American  Instructions  contain  the  following: 

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  intercourse  with  him. 

The  war  traitor  is  always  severely  punished.  If  his  offence 
cons\>t  in  betraying  to  the  enemy  anything  concerning  the 
condition,  safety,  operations,  or  plans  of  the  troops  holding  or 
occupying  the  pLxe  or  district,  his  punishment  is  death. 

If  the  citizen  or  subject  of  a  country  or  place  invaded  or 
conquered  gives  information  to  his  own  government  from 
which  he  is  separated  by  the  hostile  arm}^,  or  to  the  army  of 
his  government,  he  is  a  war  traitor,  and  death  is  the  penalty 
of  his  offence.     (Sec.  5,  pars.  5,  6,  7.) 

303.  If  the  inhabitants,  instead  of  acting  singly  3r  in  iso- 
lated small  groups,  were  to  rise  generally,  it  cannot  be  supposed 
that  the  military  government  will  stop  short  of  using  the  most 
effective  measures  to  put  down  the  insurrection.  Such  times 
are  perhaps  as  much  characterized  by  sanguinary  scenes  as 
any  in  human  experience.  The  worst  passions  are  given  full 
vent,  or  it  is  apt  to  be  so,  and  whichever  part}'^  is  successful,  the 
other  is  exterminated. 

304.  When  impartial  history  portrays  the  implacable 
spirit    of   revolt    that   signaUzed ,  the    Philippine   insurrection 

I.  Bluntschli,  I.,  Sec.  91,  clause  2. 


3IO  MILITARY    GOVERNMENT    AND    MARTIAI.    LAW. 

against "  United  States  authority  and  contrasts  it  with  the 
magnanimous  spirit  with  which  it  was  met,  a  new  lustre  will 
be  thrown  upon  its  pages.  But  it  will  be  a  lustre  of  sombre 
hue,  as  the  light  on  those  events  shines  through  the  blood  of 
so  many  of  America's  bravest  and  fairest  youth,  whose  sacrifice 
was  necessary  in  order  that  this  generous  policy  of  the  Gov- 
ernment might  triumph.  For  years  it  was  enough  that  a 
native  join  with  the  Americans  in  an  effort  to  save  something 
from  the  all-pervading  wreck  and  rehabilitate  society  and 
business  for  him  to  be  constantly  menaced  by  the  assassin's 
knife  and  often  to  fall  under  its  concealed  blow.  And  yet 
such  was  the  long-suffering  of  the  National  Government  that 
neither  the  constant  and  boastful  violations  of  the  laws  of  wai 
by  the  Filipinos,  nor  the  course  of  assassination  towards 
friendly  natives  for  deterrent  effect,  could  distract  attention 
for  one  moment  from  the  pole-star  upon  which  those  distant 
islands  were  being  steered — and  which  was  to  secure  to  their 
people  a  political  system  in  which  self-government  would  be 
enjoyed  to  the  greatest  degree  they  were  capable  of  exercising 


CHAPTER  XIV. 
Responsibility    of    Commanders — Military   Government. 

305.  The  powers  of  commanders  enforcing  military  govern- 
ment are  derived  from  and  are  limited  by  the  laws  of  war.  In 
this  regard  it  matters  not  whether  the  territory  governed  be 
foreign  or  that  of  rebels  treated  as  belligerents.  In  the  exer- 
cise of  his  authority  under  the  laws  of  war,  however,  the  com- 
mander is  subject  to  the  control  of  his  military  superiors, 
while  both  he  and  they  are  amenable  to  and  governed  by  the 
supreme  power  in  the  State.  In  case  of  civil  war  the  course 
of  the  legitimate  government  will  be  determined  by  consider- 
ations of  policy.  It  is  not  bound  to  treat  the  rebels  as  though 
they  were  subjects  of  a  foreign  power — in  other  words,  concede 
them  belligerent  rights.  Still,  in  modern  times,  it  is  the  usual 
practice  in  civilized  governments,  attacked  by  organized  and 
formidable  rebellion,  to  exercise  and  concede  those  rights.  1 

306.  If  the  military  occupation  be  of  foreign  territory,  there 
will,  as  a  rule,  be  no  reason  for  complicating  the  governmental 
machinery  there  with  powers  or  functions  which  are  not  purely 
militar3\  The  times  are  turbulent;  war  lays  its  hand  heavily 
on  all  within  the  field  of  operations.  Society  amidst  such 
scenes  is  quickly  reduced  to  its  fundamental  elements — a  people 
asking  only  to  be  governed  and  protected  in  person  and  prop- 
erty, and  a  ruling  power  of  sufficient  vigor  and  strength  to  af- 
ford that  protection.  For  such  a  condition  of  society  the  indis- 
pensable elements  of  government  are,  or  should  be,  swiftness 
of  action,  impartiality  in  meting  out  justice  how  stern  soever 't 
be,  and  overwhelming  force.  These  qualities  attach  peculiail)' 
to  a  government  of  military  power  conducted  alone  by  military 
officers.     Whatever  of  civil  government  is  maintained  is  authoi  - 

I.  Chase's  Decisions,  p.  141. 

3" 


312  MILITAEY   GOVERNMENT  AND   MARTIAL   LAW. 

ized  and  controlled  by  the  military  power ;  nor  does  it  extend 
at  the  utmost  further  than  conducting  the  affairs  of  society  in 
its  ordinary  every-day  transactions. 

307.  If  the  military  occupation  be  of  territory  reclaimed 
from  rebels,  treated  as  belligerents,  the  policy  of  the  legitimate 
government  may  extend  beyond  mere  military  control.  The 
people  are  still  subjects  of  the  conquering  power,  although  tem- 
porarily alienated  from  the  path  of  duty.  It  may  be  the  part 
of  wisdom,  therefore,  to  endeavor  through  conciliatory  meas- 
ures to  recall  them  to  their  allegiance,  and  such,  in  modern 
times,  has  generally  been  the  practice  of  the  sovereign  State. 
One  of  the  most  effective  measures  to  this  end  would  be  grad- 
ually to  restore  the  people  to  the  enjoyment  of  civil  and  re- 
ligious liberty  in  so  far  as  this  is  compatible  with  the  paramount 
object  of  conquering  a  peace.  As  the  rebellious  territory  is 
held  by  force  alone,  whatever  is  done  must  be  done  under  the 
protection  of  the  military.  Without  this  no  civil  government 
set  up  by  the  dominant  State  would  stand  its  ground  an  hour. 
The  power  behind  the  throne  is  the  same  as  when  dominion  is 
exercised  over  foreign  territory,  but  the  throne  preferably  is 
filled  by  another  and  milder  personage  than  the  military  con- 
queror— one  whose  mission  is  to  hold  out  the  olive  branch, 
while  the  sword  appears  in  the  background,  grimly  suggestive, 
it  is  true,  yet  to  be  used  only  in  case  other  measures  fail. 

308.  In  the  United  States  all  military  and  naval  officers  are 
subject  to  the  orders  of  the  President.  In  him  is  vested  the 
executive  power  of  the  Nation,  They  are  his  agents  appointed 
on  his  nomination  to  make  that  power  effectual  for  all  the 
warlike  purposes  of  government.  This  embraces  the  control 
of  conquered  enemy  territory,  1  which  is  directly  entrusted  to 
these  officers.  They  remain  subject  to  superior  military  con- 
trol, but  aside  from  this  their  authority  is  limited  only  by  the 
laws  of  war.  "When  the  armies  of  the  United  vStates  are  in 
enemy's  country,  officers  and  soldiers  are  answerable  only  to 

I.   Kent,  I.,  92  (b);  20  Wallace,  p.  394. 


RESPONSIBILITY   OF    COMMANDERS.  3l3 

their  own  government,  and  only  by  its  laws  as  enforced  by  its 
armies  can  they  be  punished."  i  "The  commanding  general 
determines  under  such  circumstances,"  says  the  .Supreme 
Court,  "what  measures  are  necessary,  unless  restrained  by 
the  orders  of  his  government,  which  alone  is  his  superior."  2 
And  speaking  of  the  seizure  of  private  property  found  in  ter- 
ritory subject  to  military  government,  it  remarked  that  if  the 
property  were  taken  by  an  officer,  when  by  the  laws  of  war  or 
the  proclamation  of  the  commanding  general  it  should  have 
been  exempt  from  seizure,  the  owner  could  have  complained 
to  that  commander,  who  might  have  ordered  restitution  or 
sent  the  offending  party  before  a  military  tribunal  as  circum- 
stances required,  or  he  could  have  had  recourse  to  the  gov- 
ernment for  redress.  3 

309.  The  question  has  sometimes  arisen  how  far  the  hostile 
act  of  a  subordinate  officer,  as,  for  instance,  the  governor  of  a 
province,  is  to  be  regarded  as  the  act  of  his  sovereign  or  vState, 
and  how  far  the  officer  is  to  be  held  individually  responsible. 
The  most  approved  and  reasonable  doctrine  is  that  if  the  act 
be  ratified  by  his  government,  or  rather  is  not  disclaimed,  the 
State  is  responsible;  otherwise  it  becomes  an  individual  act 
and  the  guilty  party  should  be  surrendered  up  for  punishment. 
The  general  is  not  responsible  to  other  governments  than  his 
own.    His  government  deals  with  others  upon  terms  of  ecjuality, 

I.  97  U.  S.,  p.  515;  loo  U.  S.,  pp.  165-66;  loi  U.  S.,  pp.  17,  18. 
2.  97  U.  S.,  p.  60.     3    100  U.  S.,  p.  167;  2  Exchequer  Reports,  p.  188. 

Note. — An  instance  somev/hat  of  this  kind  occurred  in  the  Peninsular 
campaii^n  in  18  011.  The  Spanish  goneral,  Mendizabel,  committed  many 
excesses  in  PortUK^l,  and  the  disputes  between  Spanish  troops  and  Portu- 
guese people  were  pushed  so  far  that  the  former  pillaged  the  town  of 
Fernando;  while  the  Portuguese  government,  in  reprisal,  meant  to  seize 
the  Spanish  fortress  of  Olivenza,  which  had  formerly  belonged  to  them. 
The  Spanish  regency  publicly  disavowed  General  Mendizabel's  conduct, 
while  nothing  short  of  the  strenuous  exertions  of  the  common  ally,  the 
Rngli=;h,  prevented  Portugal  declaring  war  against  Soain  bcaii'-e  of  the 
conduct  of  the  Spanish  commander  CNJapif-r's  History  <>f  the  Peninsula 
War,  Book  XII.,  Chap  5.) 


314  MILITAEY    GOVERNMENT   AND   MARTIAL   LAW. 

for  neither  acknowledges  any  superior;  he  stands  behind  his 
own  for  protection. 

It  may  be  considered  as  established  by  the  authorities,  first, 
that  the  commander  administering  military  government  is  re- 
sponsible to  his  superiors  and  to  his  government  for  the  man- 
ner in  which  he  performs  that  duty;  second,  his  government 
may  disavow  his  actions,  and,  strictly,  this  would  render  him 
personally  responsible  for  violations  of  the  laws  of  war;  but, 
in  general,  while  reprobating  his  conduct,  it  will  itself  seek  to 
make  suitable  reparation  to  the  opposing  belligerent  and  deal 
directly  with  its  servant,  the  commander,  as  the  facts  of  the 
case  may  warrant;  third,  if  the  government  assume  responsi- 
bility for  his  conduct,  as  in  any  case  it  may  do,  the  opposing 
belligerent  can  then  look  only  to  that  government  for  any  re- 
dress to  which  it  may  deem  itself  entitled  because  of  alleged 
crimes  or  irregularities  perpetrated  by  the  military  commander. 
Nor  in  general  will  it  be  a  matter  of  indifference  to  the  com- 
mander whether  he  be  held  personally  or  officially  responsible. 
If  the  former,  he  is  at  once  stripped  of  any  immunity  due  to 
his  official  position  and  becomes  answerable,  like  any  other 
dtizen,  to  the  municipal  laws  for  his  actions ;  if  the  latter, 
his  conduct  is  brought  to  the  test  of  the  laws  and  customs  of 
war  and  by  that  standard  will  it  be  judged.  In  the  one  case  a 
taking  of  property  and  human  life  which  possibly  would  be 
looked  upon  as  robbery  and  murder  might  in  the  other,  when 
judged  by  military  rules,  be  fully  justified  as  a  lawful  exercise 
of  belligerent  rights,  i 

310.  We  come  now  to  treat  more  particularly  of  the  re- 
sponsibility to  individuals  of  officers  updn  whom  devolves  the 
duty  of  instituting  military  government  and  carrying  it  into 
execution.  And  certainly  no  part  of  this  subject-  possesses 
more  interest  than  this,  nor  is  any  more  important.  Contrary 
to  a  very  general  belief,  it  will  be  found,  when  attentively  con- 
sidered, that  military  government,  arbitrary  though  it  be  in 

I.  Halleck,  Chap.  14,  Sec.  31;  97  tJ.  S.,  p.  623 


RESPONSIBILITY  OF   COMMANDERS.  315 

its  essential  features,  is  far  from  being  the  mere  will  of  the  com- 
manding general  to  be  .enforced  by  him  without  responsibility, 
either  directly  or  through  the  medium  of  subordinates  who 
themselves  are  answerable  only  to  that  commander.  His 
responsibility  is  both  military  and  civil ;  the  form-:^-  complete, 
the  latter  qualified  by  circumstances. 

311.  First,  the  responsibihty  to  military  superiors  extends 
wherever  commanders  may  go.  How  extensive  soever  may  be 
their  operations,  how  far  soever  conducted  from  the  territory 
of  their  own  government,  they,  and  of  course  their  subordinates 
as  well,  are  never  independent  of  that  authority  which  sent 
them  forth.  In  monarchical  governments  the  king  or  em- 
peror is  the  fountain  of  military  honor,  the  source  of  military 
power,  the  dispenser  of  military  justice.  "The  king,"  says 
Blackstone,  "is  considered  as  the  generalissimo,  or  the  first  in 
military  command  within  the  kingdom.  The  great  need  of 
society  is  to  protect  the  weakness  of  individuals  by  the  united 
strength  of  the  community,  and  the  principal  use  of  govern- 
ment is  to  direct  that  united  strength  in  the  best  and  most 
effectual  manner  to  answer  the  end  proposed.  Monarchical 
government  is  allowed  to  be  the  fittest  of  any  for  this  purpose. 
It  follows,  therefore,  from  the  very  end  of  its  institution,  that 
in  a  monarchy  the  military  power  must  be  trusted  in  the  hands 
of  the  prince."  1  Without  joining  in  this  eulogium  of  a  system 
of  government  to  which  the  great  common-law  commentator 
was  naturally  so  partial,  it  may  be  observed  with  truth  and 
candor  that  the  repository  of  military  command,  emolument  or 
preferment  is,  under  all  permanent  governments,  equally  as 
with  the  monarchical,  in  the  hands  of  the  chief  executive. 
:,;*  J  312.  In  republics,  of  which  the  United  States  may  be  taken 
as  a  representative,  the  president,  as  commander-in-chief  of 
the  military  forces  of  the  nation,  is  the  director  of  its  mili- 
tary power  on  land  and  sea.  Upon  him  devolves  the  duty 
of  conducting  campaigns.     To  do'  this   successfully   he   must 

I    Book  I.,  p.  262 


31 6  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

have  the  cheerful  support  of  all  subordinate  military  com- 
manders. In  his  hands  must  be  entrusted  the  necessary 
coercive  power  to  command  that  support,  even  though  this 
involves  the  adoption  of  summary  measures.  In  him  is  vested 
authority  to  call  all  officers  to  account,  whether  they  be  direct- 
ing armies,  or  presiding  over  territory  wrested  from  the  enemy, 
or  their  duties  are  a  combination  of  these.  If  this  were  not 
so,  they  might  defy  him  on  the  most  critical  occasions.  This, 
however,  they  may  not  do.  Governments  republican  in  form 
no  more  than  monarchies  are  so  weak  that  the  assembling  of 
armies  and  the  holding  in  subjection  conquered  territory  will 
throw  their  vital  members  out  of  joint.  It  is  at  such  times  less 
than  any  other  that  the  authority  of  the  executive  may  be 
brought  into  contempt.  Accordingly,  in  time  of  war  the 
president  is  vested  with  the  power  of  summary  dismissal  of 
officers,  than  which  no  more  effectual  instrumentality  could  be 
devised  for  the  maintenance  of  proper  discipline.  From  the 
president  downwards  the  chain  of  subordination  extends  un- 
broken to  the  extremities  of  the  military  system,  binding  the 
parts  thereof  into  a  homogeneous,  compact  whole.  It  is  this 
alone  which  renders  the  success  of  military  measures  prac- 
ticable. This  is  discipline,  which  is  equally  indispensable, 
whether  invoked  amidst  the  clash  of  arms  or  the  quieter  yet 
onerous  task  of  governing  firmly  yet  equitably  under  the  laws 
of  war  a  district  subjected  to  the  rule  of  a  conqueror. 

313.  It  is  true  that  to  the  subjugated  people  the  conqueror 
is  not  under  legal  responsibility  for  his  conduct.  He  is,  how- 
ever, under  obligations  to  keep  inviolate  the  impHed  covenant 
with  them  that,  so  long  as  they  do  not  take  sides  either  openly 
or  covertly  with  his  enemy,  he  will  protect  them  so  far  as  the 
exigencies  of  the  military  service  will  permit  in  their  rights  of 
person  and  property. 

314.  Although  members  of  the  invading  army  are  not  and 
cannot  be  made  answerable  before  either  the  courts  or  other 
local  authorities,  the  legality  of  their  acts  ma}'  become  matter 
for  judicial  determination  as  between  citizens,  residents  of  the 


RESPONSIBILITY   OF    COMMANDKRS.  317 

territory,  who  are  affected  by  these  acts.  If  the  conqueror,  or 
members  of  his  army  during  military  occupation  aUcnate  the 
property  of  a  citizen,  for  instance,  and  it  comes  into  the  posses- 
sion of  another,  the  question  might  arise  before  the  local  tri- 
bunal whether  or  not  such  alienation  were  legal,  and  conse- 
quently passed  title.  This  was  frequently  the  case  during  the 
Civil  War  and  subsequently  in  States  which  had  been  declared 
to  be  in  a  state  of  insurrection.  As  was  to  be  expected  under 
such  circumstances,  the  decisions  of  courts  were  diverse.  But 
as  the  war  progressed  and  the  principles  which  govern  in  civil- 
ized warfare  became  better  understood,  the  test  generally  ap- 
plied was  this:  Was  the  original  alienation  or  appropriation 
done  agreeably  to  the  laws  of  war?  If  so^  the  person  into 
whose  possession  the  property  passes  holds  by  an  indefeasible 
title ;  if  otherwise,  it  is  not  rightfully  his. 

In  Ivcwis  -v.  McGuire,  for  instance,  the  court  remarked: 
* '  Neither  the  right  of  imprisontnent  nor  the  right  to  exact  mili- 
tary contributions  belongs  to  every  petty  officer,  but  must 
come  from  the  commander  of  the  district  or  country,  or  a  post, 
or  an  army,  and  not  from  every  straggling  squad  which  may  be 
under  the  command  of  some  inferior  officer  of  low  grade.  Nor, 
indeed,  will  either  the  commission  or  capacity  in  which  an 
officer  professes  to  act  fix  his  status,  but  the  manner  of  his  con- 
duct, for  even  a  regularly-commissioned  officer  in  the  regular 
military  service  of  a  belligerent  may  be  guilty  of  such  a  line  of 
conduct  as  to  show  that  he  in  reality  belonged  to  an  irregular, 
irresponsible,  plundering  service,  which  cannot  be  shielded  by 
a  regular  commission."!  This  language  was  cited  approv- 
ingly in  Brauner  v.  Felkner,  2  which  involved  the  case  of  a  pri- 
vate soldier  appropriating  the  horse  of  a  citizen,  which  was 
afterwards  found  in  the  possession  of  another  citizen  of  the 
occupied  territory.  The  court  decided  that  the  original  owner 
was  entitled  to  reclaim  his  property,  as  under  the  laws  of  war 
even  a  private  soldier  without  orders  from  competent  authority 

I.  J  Bush  (Ky.)    pp   203-4      2.   I  Heiskel!  (S.  C,  Tenn."). 


31 8  MILITAET   GOVERNMENT   AND   MARTIAL   LAW. 

cannot  rightfully  appropriate  enemy  property.  In  Bowles  v. 
Lewis,  1  a  provost  marshal  of  the  United  States  seized  and  sold  a 
horse  of  a  citizen  of  that  part  of  the  State  of  Missouri  which 
was  under  military  control.  The  horse  was  afterwards  found 
in  possession  of  the  defendant,  and  the  owner  was  permitted  to 
recover  possession.  The  court  remarked :  "In  order  to  protect 
a  sale  under  such  circumstances,  by  a  provost  marshal,  under 
color  of  military  authority,  the  claimant  under  such  sale  must 
show  that  the  property  was  sold  under  some  valid  condemna- 
tion or  judgment,  or  that  its  seizure  and  sale  was  authorized  by 
the  usages  of  war ;  otherwise,  the  action  of  the  provost  marshal 
was  a  mere  trespass." 

315.  Every  nation  determines  for  itself  how  it  will  regard 
the  acts  of  its  military  officers.  Unquestionably  the  general 
rule  is  to  sustain  them.  In  no  other  way  can  they  be  brought 
to  act  boldly  for  the  State.  The  few  exceptions  make  more 
clear  the  generality  of  this  rule,  founded  as  it  is  on  the  soundest 
policy.  The  soldier  who  is  to  strike  effectively  against  his 
country's  foes  must  not  dread  an  enemy  at  the  rear  more  dan- 
gerous to  his  fame  and  success  than  the  braver  one  in  front. 
Governments  appreciate  this  fact,  and  therefore  generally 
sustain  the  commanders  of  their  forces  in  all  their  belligerent 
measures. 

On  theother  hand, nothing  is  more  common  or  more  natural, 
perhaps,  than  for  the  enem}^  to  distort  even  necessary  and 
recognized  measures  .of  regular  warfare,  when  executed  rig- 
orously, into  infractions  of  its  rules.  War  cannot  be  carried 
on  successfully  without  a  sacrifice  of  life  and  property.  It 
often  brings  misery  to  all  alike,  combatant  and  non-combatant, 
the  innocent  and  the  guilty,  within  the  sphere  of  its  operations. 
It  is  not  surprising  that  those  who  feel  the  effects  of  measures 
necessarily  harsh,  brought  home  to  them  in  their  own  persons, 
should  loudly  inveigh  against  the  cruelty  of  the  authors  of 

I.  48  Mo.,  p.  32,  see  Dana's  Wheaton,  Sec.  359;  see  Vattel,  Book 
III.,  Chap.  9,  Sec.  161. 


1 


RESPONSIBILITY    OF    COMMANDERS.  319 

their  discomfort.  Nevertheless,  it  is  a  dangerous  proceeding 
to  proclaim  that  the  enemy  has  violated  the  laws  of  war  and 
then  attempt  to  visit  upon  him  that  summary  punishment 
which,  granting  this  to  be  true,  he  may  deserve. 

The  case  of  bandits,  guerillas,  and  irregular  partisans,  who 
are  apparently  peaceful  citizens  one  hour  and  stealthy  assas- 
sins the  next,  who  have  no  distinctive  uniform  and  whose  acts 
partake  of  the  character  of  murder  and  robbery  rather  than  of 
warfare  regularly  waged,  is  not  here  considered;  their  proper 
treatment  when  captured  has  been  referred  to  elsewhere,  i 
What  is  referred  to  here  is  the  attempt,  sometimes  made  by  a 
belligerent,  to  stamp  the  acts  of  an  opposing  general  with  the 
seal  of  lawlessness  unworthy  a  civilized  commander,  and  then 
exhort  its  subjects  to  visit  vengeance  upon  him  or  his  army 
at  the  first  opportunity.  Such  was  the  proclamation  of  the 
President  of  the  so-called  Confederate  States  of  America, 
dated  December  23,  1862,  denouncing  the  punishment  of  death 
by  hanging  against  a  general  commanding  one  of  the  Union 
armies,  and  further  declaring  that  all  commissioned  officers 
belonging  to  that  army  should,  when  captm-ed,  be  reserved  for 
execution.  2  No  attempt  was  made  to  carry  the^ injunctions 
of  this  sanguinary  instrument  into  execution.  To  have  done 
so  would  have  served  no  good  purpose.  Retaliation,  with 
all  its  deplorable  results,  would  inevitably  have  been  the 
consequence. 

316.  Most  personal  actions  are  transitory  and  maybe  tried 
in  any  country  at  the  option  of  the  plaintiff,  provided  that 
jurisdiction  of  the  parties  be  secured.  Blackstone  divides 
personal  actions  into  two  classes,  ex  contractu  and  ex  delicto- 
the  former  are  founded  on  contracts,  and  embrace  all  actions 
on  debts  or  promises;  the  latter  upon  torts  or  wrongs,  such  as 
trespasses,  nuisances,  assaults,  defamatory  words,  and  the  like.  3 

317.  From  what  has  before  been  observed  as  to  liability  in 
transitory  actions,  it  results  from  this  classification  that  to 

I.  AntC:  Sees.  iJi,  102.  2.  R.  R.  S.,  I.,  Vol.  15,  pp.  906-7.  3.  Com- 
mentaries, 3,  p.  117. 


320  MILITARY    GOVERNMENT    AND    MARTIAL    LA\V. 

both  bona  fide  neutrals  who  preserved  this  character  scrupu- 
lously and  also  subjects  of  the  dominant  State  residing  by  its 
authority  in  territory  under  military  government,  military 
commanders  in  the  occupied  district  may  be  held  responsible 
before  the  civil  tribunals  of  their  own  country  for  breaches  of 
contract  and  also  for  torts.  As  to  contracts,  the  well-known 
distinction  between  public  and  private  agents  in  the  matter 
of  personal  responsibility  will  not  be  lost  sight  of.  If  an  agent 
on  behalf  of  government  make  a  contract  and  describe  himself 
as  such,  he  is  not  personally  bound,  even  if  the  terms  of  the 
contract  be  such  as  might  in  a  case  of  a  private  nature  involve 
him  in  a  personal  obligation.  The  reason  of  the  distinction  is 
that  it  is  not  to  be  presumed  that  a  public  agent  meant  to  bind 
himself  individually  for  the  government;  and  the  party  who 
deals  with  him  in  that  character  is  justh^  supposed  to  rely 
upon  the  good  faith  and  undoubted  ability  of  the  government. 
But  the  agent  in  behalf  of  the  public  may  still  bind  himself 
by  an  express  agreement,  and  the  distinction  terminates  in  a 
question  of  evidence.  The  inquiry  in  all  the  cases  is,  to  whom 
was  the  credit,  in  the  contemplation  of  the  parties,  intended 
to  be  givenpi  As  to  actions  ex  contractu,  therefore,  it  may  be 
assumed  that  the  naked  right  will  seldom  if  ever  find  practical 
illustration.  Government  agents  are  not  likely  to  be  so  neg- 
lectful of  their  own  interests  as  to  engage  in  transactions 
on  behalf  of  the  public  which  will  involve  them  in  personal 
liabilities. 

318.  With  regard  to  actions  ex  delicto  the  case  is  different. 
The  Hability  to  inctur  legal  responsibility  of  this  nature  by  the 
military  is  much  greater.  The  conditions  under  which  military 
government  is  enforced  are  not  those  best  calculated  to  secure 
a  nice  adjustment  of  private  rights.  Public  interests  must  first 
be  attended  to.  Nothing  which  places  in  jeopardy  the  success 
of  military  operations  is  tolerated.  The  prosecution  of  the  war 
to  a  happy  issue  is  the  object  of  paramount  importance.     All 

■^ir 

I.  Kent,  2,  p.  633;  5  Barnewall  and  Alderson's  Rep.,  p.  34;  Bouvier, 
Dictionary,  Vol.  i,  p.  137. 


RESPONSIBILITY   OF    COMMANDERS.  3_I 

Other  interests  give  way  to  that  consideration.  These  are  fa- 
mihar  principles.  Yet  they  do  not  mean  license ;  which  means 
the  reckless  disregard  of  the  rights  of  private  parties  who,  pur- 
suant to  governmental  authority,  and  therefore  in  a  proper 
manner,  are  found  together  with  their  property  in  enemy 
territory,  under  military  government. 

The  law  as  laid  down  in  Mitchell  v.  Harmony  by  the  Su- 
preme Court  of  the  United  States  is  decisive  as  to  the  responsi- 
bility of  military  officers  for  torts  committed  in  enemy  territory 
against  the  persons  and  property  of  subjects  either  permanent- 
ly living  or  temporarily  there  under  proper  authority,  i  To 
properly  understand  this  case  it  is  necessary  that  all  the  cir- 
cumstances under  which  it  arose  should  be  taken  account  of. 
When  war  had  been  determined  on  with  Mexico,  the  United 
States  Government  resolved  to  penetrate  the  enemy's  country 
by  three  lines.  On  the  left,  General  Taylor  was  to  move  from 
the  lower  Rio  Grande;  in  the  center.  General  Wool  to  move 
into  the  State  of  Chihuahua,  Mexico,  from  San  Antonio, 
Texas ;  while  on  the  right.  General  Kearney  invaded  California 
by  way  of  New  Mexico.  Having  reached  Santa  Fe  and  re- 
ceived the  submission  of  New  Mexico,  the  latter  general  de- 
tached a  column  under  command  of  Colonel  Doniphan,  First 
Missouri  Volunteers,  to  penetrate  into  the  State  of  Chihuahua 
in  such  a  manner  as  to  make  a  diversion  in  Wool's  favor.  Ac- 
companying Doniphan's  command  was  the  2d  Missouri  Volun- 
teers, commanded  by  Lieutenant-Colonel  Mitchell,  the  same 
who  was  subsequently  the  plaintiff  in  error  in  the  case  before 
the  Supreme  Court.  The  enemy  was  met  on  the  way,  but  de- 
feated December  21,  1846,  and  finally  Doniphan  reached  and 
took  possession  of  Fort  San  Eleasario  at  El  Paso  del  Norte  on 
the  upper  Rio  Grande.  Here  the  commander  of  the  expedition 
first  heard  of  the  failure  of  the  center  column  to  reach  Chihua- 
hua. It  became  then  a  grave  question  what  course  should  be 
pursued.     In  every  direction  was  enemy  country,  and  either 

I.    13  Howard,  p.  115  et  seq. 
—21— 


322 


MILITARY    GOVERNMENT    AND   MARTIAL    LAW, 


to  advance,  retreat,  or  stand  still  seemed  extremely  perilous. 
The  bold  resolution  was  taken,  however,  of  penetrating  to  the 
city  of  Chihuahua,  which  was  successfully  accomplished,  al- 
though enemies  vastly  more  numerous  had  first  to  be  met  and 
vanquished.  This  accomplished,  the  column  turning  to  the 
left  joined  General  Taylor,  thus  terminating  a  daring  exploit, 
which  could  but  do  honor  to  the  arms  which  accomplished  it. 

-  While  the  column  was  at  Fort  San  Eleasario  the  most  alarm- 
ing events  happened  in  its  rear.  In  pursuance  of  a  plot  formed 
and  successfully  carried  into  execution,  nearly  all  the  officials 
of  the  temporary  government  which  General  Kearney  had  es- 
tablished over  New  Mexico  were  murdered  by  Mexicans,  who, 
ostensibly,  had  submitted  to  the  authority  of  the  United 
States.  The  result  of  this  act  of  perfidy  no  one  could  foresee, 
but  it  apparently  deprived  the  expedition  of  even  a  semblance 
of  a  base  of  operations.  It  was  then  resolved,  as  before 
mentioned,  to  advance. 

,  It  was  when  starting  from  San  Eleasario  and  thence  during 
the  progress  to  Chihuahua  that  Lieutenant-Colonel  Mitchell 
committed  the  tort  for  which  the  Supreme  Court  afterwards 
held  him  liable  in  damages.  There  was  present  with  the  com- 
mand a  Mr.  Harmony,  a  citizen  of  New  York,  who,  in  the 
capacity  of  trader,  and  before  he  knew  that  there  was  to  be 
a  war,  had  left  Independence,  Missouri,  for  Santa  Fe  with  a 
large  train  laden  with  goods  and  merchandise  destined  for 
New  Mexico.  Ventures  of  this  nature  were  then  encouraged 
by  the  United  States  Government.  The  train  was  overtaken 
by  General  Kearney's  army  of  invasion,  but  was  permitted  to 
accompany  one  of  its  columns  to  Santa  Fe,  and  Harmony  was 
given  permission  to  dispose  of  his  wares  to  natives  and  others 
in  the  regular  course  of  such  business.  When  Doniphan's  ex- 
pedition was  fitted  out  in  New  Mexico,  Harmony  sought  and 
obtained  permission  to  accompany  it.  He  did  this  not  to  add 
to  the  security  of  the  column,  which  his  presence  really  weak- 
ened, but  for  purposes  of  trade.  He  was  present  with  the 
entire  approbation  of  the  United  States  authorities  on  the  spot. 


RESPONSIBILITY   OF    COMMANDERS.  323 

He  was  there  to  m^ke  money  by  selling  the  products  of  the 
United  States  to  the  people  of  the  country,  and  it  accorded 
with  the  policy  of  his  Government  that  such  commercial  in- 
tercourse should  be  fostered.  He  had  full  aiithority  for  being 
there,  and  for  the  purpose  that  brought  him  there. 

But  he  did  not  wish  to  accompany  the  army  beyond  vSan 
Eleasario.  He  saw  an  opportunity  to  dispose  of  his  wares  in 
that  vicinity,  or  if  not,  he  imagined  he  saw  in  the  perils  of  the 
journey  to  Chihuahua  under  the  existing  circumstances  greater 
danger  to  his  pecuniary  interests  than  were  likely  to  result 
from  his  remaining  behind  in  the  midst  of  Mexicans,  with 
whom,  however,  he  was  on  excellent  terms,  and  whose  lan- 
guage he  perfectly  understood.  It  was  claimed  afterwards 
on  the  trial  that  he  was  at  this  time  meditating  schemes  which 
were  hostile  to  the  cause  of  his  country,  and  through  the  agency 
of  what  he  claimed  was  legitimate  traffic  with  the  Mexicans 
he  was  really  giving  the  enemy  aid  and  comfort.  But  the 
Supreme  Court  in  its  final  decision  said  that  there  was  no  sub- 
stantial proof  that  he  was  actuated  by  these  motives ;  it  treated 
this  surmise  as  a  vague  suspicion,  which  could  not  even  under 
circumstances  then  existing  be  legally  made  the  foundation  of 
action  inimical  to  Harmony's  interests. 

Colonel  Doniphan  gave  orders  that  Harmony  should  accom- 
pany the  command  in  its  further  career  of  conquest.  The  at- 
tending to  the  details  of  securing  this  was  entrusted  to  Lieuten- 
ant-Colonel Mitchell,  who  afterwards  claimed,  no  doubt  tiuth- 
fully,  that  he  had  acted  under  Doniphan's  orders  in  the  prem- 
ises, but  whom  the  court  found  had  moved  with  a  degree  of 
zeal  in  the  matter  considerably  in  excess  of  what  a  plain  matter- 
of-fact  obedience  of  orders  would  have  necessitated.  The  lieu- 
tenant-colonel gave  to  Harmony  a  memorandum  stating  the 
reasons  for  this  action,  which  were :  Fiist,  that  it  was  desired 
to  make  use  of  the  wagons  and  bales  of  goods  to  foim  a  field- 
work  in  the  event  of  the  troops  being  attacked  by  an  over- 
whelming force  of  the  enemy;  second,  it  was  desired  to  make 
use  of  the  services  of  the  American  teamsters,  whom  the  com- 


324  MILITARY   GOVERNMENT    AND   MARTIAL    LAW. 

inander  of  the  forces  had  armed  and  organized  as  an  infantry- 
battalion  numbering  nearly  thiee  hundred  men;  third,  it  was 
desirable  to  prevent  the  large  amount  of  property  in  Harmony's 
wagons  from  falling  into  the  hands  of  the  enemy,  because  it 
would  have  aided  him  in  paying  and  equipping  his  troops. 

There  is  no  doubt  that,  so  organized,  the  trader's  train  and 
employes  formed  an  important  element  of  strength  when,  en 
route  from  San  Eleasario  to  Chihuahua,  the  American  troops 
met  and,  Febiuary  28,  1847,  decisively  defeated  a  vastly 
superior  force  of  Mexicans  at  Sacramento;  the  lesult  of  the 
conflict  being  the  openhig  up  an  uninterrupted  path  to  Chi- 
huahua, the  capital  of  the  hostile  State  of  that  name,  and 
which  was  the  objective  point  of  the  expedition. 

The  city  being  reached,  permission  was  given  Harmony  to 
sell  the  goods  and  merchandise,  but  the  people  were  hostile 
and  he  could  not  do  it.  Much  of  his  property,  especially 
wagons  and  animals,  had  been  either  rendered  unserviceable 
01  totally  destroyed.  He  declined  to  accept  what  was  left  when 
the  American  commander  offeied  to  turn  it  over  to  him,  prefer- 
ring to  abandon  the  whole  to  those  who  had  taken  forcible  pos- 
session of  it  and  seek  whatever  redress  might  be  available  to 
him  through  the  agency  of  the  law.  First,  he  attempted  to  se- 
cure reimbursement  through  an  act  of  Congress;  but  the  bill 
for  that  purpose,  in  the  usual  couise  having  been  refeired  to 
the  Secretary  of  War,  the  Honorable  William  L.  Marcy,  for  an 
opinion  upon  its  merits,  was  returned  with  an  adverse  report 
which  sealed  its  fate  in  that  direction,  for  the  time  being  at 
least,  and  left  the  civil  courts  the  only  means  of  relief. 

The  cause  came  on  for  a  hearing  before  the  Circuit  Court  of 
the  United  vStates,  Nelson,  J.,  presiding,  for  the  October  term, 
1 850,  at  New  York  city.  1  The  defences  set  up  were  four : 
First,  that  at  the  time  of  the  seizure  Harmony  was  engaged  in 
an  unlawful  trade  with  the  public  enemy;  second,  the  seizure 
was  to  prevent  the  property  from  falling  into  the  hands  of  the 
enemy;  third,   the  property  was   taken  for  the   public  use; 

I.  Harmony  v.  Mitchell,  i  Blatchford,  p.  549. 


RESPONSIBILITY   OF    COMMANDERS.  325 

fourth,  that  the  plaintiff  was  estopped  from  claiming  damages 
for  the  seizure  because  he  had  subsequent  to  this  received  back 
the  property  from  the  military  officers.  It  may  be  well  to 
remark  that  the  Government  supported  Mitchell's  views  of 
the  case,  the   United   States  district  attorney  defending  him. 

The  trial  was  before  a  jury  whose  province,  as  explained  by 
the  court,  was  the  determination  of  the  facts,  while  the  court  ex- 
pounded and  applied  the  law.  Nearly  all  the  defences  were 
rejected  with  emphasis,  while  those  for  which  it  was  conceded 
there  was  color  of  reason  were  pronounced  too  insufficiently 
supported  to  relieve  the  defendant  fiom  liability  in  damages. 

It  was  held,  first,  that  the  goods  of  a  trade'r,  who,  encouraged 
by  the  governmental  authorities  to  carry  on  a  particular  kind 
of  commercial  intei  course  with  the  enemy,  had  penetrated  a 
subjugated  country,  were  not  liable  to  seizure  on  the  ground 
that  such  trading  was  unlawful.  It  would  be  setting  a  snare 
for  the  unwary ;  an  act  not  to  be  attributed  to  the  Government 
or  the  Executive  Department  without  the  most  convincing 
proof ;  second,  to  justify  the  seizure  of  property  so  situated  on 
the  ground  that  such  seizure  was  necessary  to  prevent  its  falling 
into  the  enemy's  hands  as  booty  of  war,  the  danger  must  be 
imminent  and  urgent,  not  contingent  oi  remote.  It  was  for  the 
jury  to  say,  after  duly  weighing  all  the  facts  of  the  case,*  whether 
the  danger  was  of  this  pressing  nature;  third,  while  a  military 
officer  is  justified  in  a  case  of  extreme  necessity,  when  danger  is 
impending,  when  the  safety  of  the  Government  or  the  Army 
requires  it,  in  taking  private  property  for  the  public  service, 
without  being  liable  as  a  trespasser,  it  is  necessary  that  these 
circumstances  should  conspire  to  relieve  him  from  responsibility 
for  the  act.  When  this  is  so,  the  owner  of  the  property  must 
look  to  the  Government  for  indemnity.  On  the  other  hand,  if 
private  property  be  thus  appropriated,  not  on  account  of  im- 
pending danger  at  the  time  or  for  use  to  repel  an  immediate 
assault  of  the  enemy  which  might  endanger  the  safety  of  the 
Army,  but  for  the  strengthening  the  Army  and  aiding  in  an  ex- 
pedition against  the  enemy  two  hundred  miles  distant,  the  mili- 


326  MILITARY    GOVERNMENT   AND   MARTIAL    LAW. 

tary  officer  would  be  a  trespasser,  and  the  liability  would  at- 
tach at  the  instant  of  seizure ;  fourth,  if  the  superior  officer  who 
gives  the  order  for  seizuie  is  not  justified,  the  subordinate  who 
executes  it  will  not  be. 

In  delivering  the  decision  of  the  court  Mr.  Justice  Nelson 
said :  "I  have  no  doubt  of  the  right  of  a  military  officer  in  case 
of  extreme  necessity,  for  the  safety  of  the  Government  and  of 
the  Army,  to  take  private  property  for  public  use.  The  officer 
in  command  of  an  army  upon  its  march,  if  it  were  in  danger 
from  a  public  enemy,  would  have  the  right  to  seize  the  prop- 
erty of  a  citizen  and  use  it  to  fortify  himself  against  assault, 
while  the  danger  existed  and  was  impending,  and  ordinarily  the 
seizer  would  not  be  a  trespasser.  The  safety  of  the  country  is 
paramount,  and  the  rights  of  individuals  must  yield  in  case  of 
necessity.  *  *  *  There  was  no  evidence  here  of  an  impend- 
ing peril  to  be  met  and  overcome  by  the  public  force,  but  the 
goods  were  taken  for  a  different  purpose." 

On  appeal  to  the  Supreme  Court  of  the  United  States  the 
judgment  of  the  circuit  court  was  affirmed,  the  decision  being 
delivered  by  the  chief  justice.  1  There  are,  it  was  observed, 
without  doubt  occasions  in  which  private  property  may  law- 
fully be  taken  possession  of  or  destroyed  to  prevent  it  from 
falling  into  the  hands  of  the  enemy,  and  also  where  a  military 
officer  charged  with  a  public  duty  may  impress  private  property 
into  the  public  service,  or  take  it  for  public  use.  The  court  were 
clearly  of  opinion  that  in  all  these  cases  the  danger  must  be 
immediate  or  the  necessity  urgent  for  the  public  service,  such 
as  did  not  admit  of  delay,  and  where  the  action  of  the  civil 
authority  would  be  too  late  in  providing  the  means  which  the 
occasion  called  for.  It  is  impossible  to  define  the  particular 
circumstances  of  danger  or  necessity  in  which  this  power  may 
be  lawfully  exercised.  Every  case  must  depend  upon  its  own 
circumstances.  It  is  the  emergency  that  gives  the  right,  and 
the  emergency  must  be  shown  to  exist  before  the  taking  can 

I.  Mitchells.  Harmony,  13  Howard,  p.  115. 


RESPONSIBILITY  OF   COMMANDERS.  327 

be  justified.  In  deciding  upon  this  necessity,  however,  the 
state  of  the  facts  as  they  appeared  to  the  officer  at  the  time  he 
acted  must  govern  the  decision,  for  he  must  necessarily  act 
upon  the  information  of  others  as  well  as  his  own  observation. 
And  if  with  such  information  as  he  had  a  right  to  rely  upon 
there  is  reasonable  ground  for  believing  that  the  peril  is  im- 
mediate and  menacing,  or  the  necessity  urgent,  he  is  justified 
in  acting  upon  it,  and  the  discovery  afterwards  that  it  was 
false  or  erroneous  will  not  make  him  a  trespasser.  But  it  is 
not  sufficient  to  show  that  he  exercised  an  honest  judgment 
and  took  the  property  to  promote  the  public  service ;  he  must 
show  by  proof  the  nature  and  character  of  the  emergency  such 
as  he  had  reasonable  grounds  to  suppose  it  to  be,  and  it  is  then 
for  the  jury  to  say  whether  it  was  so  pressing  as  not  to  admit 
of  delay  and  the  occasion  such,  according  to  the  information 
on  which  he  acted,  that  private  rights  must  for  the  time  give 
way  to  the  common  and  public  good. 

In  the  particular  case  before  the  court  the  question  was 
whether  the  law  permits  private  property  to  be  taken  to  insure 
the  success  of  any  enterprise  against  a  public  enemy  which  the 
commanding  officer  may  deem  it  advisable  to  undertake.  And 
the  court  was  very  clear  that  the  law  did  not  permit  it.  It  was 
remarked  that  if  the  power  exercised  by  Colonel  Doniphan  had 
been  within  the  limits  of  a  discretion  confided  to  him  by  law 
his  order  would  have  justified  his  subordinate,  the  defendant 
in  the  original  suit,  even  if  the  commander  had  abused  his 
power  or  acted  upon  improper  motives. 

This  decision  was  based  doubtless  upon  what  was  and  is  the 
common  law.  The  doctrine  of  Mitchell  v.  Harmony  was  re- 
ferred to  with  approbation  by  the  Supreme  Court  of  the  United 
States  in  an  important  case  growing  out  of  the  Civil  War.  1 
Under  the  circumstances  which  were  assumed  to  have  sur- 
rounded Lieutenant-Colonel  Mitchell,  that  doctrine  now  may 

I.  Dow  V.  Johnson,  100  U.  S.,  p.  166.- 


328  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

be  considered  the  law  of  the  land  except  as  modified  by  stat- 
utory enactment. 

It  is  important  that  the  import  of  this  doctrine  be  clearly  un- 
derstood. It  is  this:  Military  commanders  even  in  enemy 
country  seize  upon  the  private  property  of  their  fellow-subjects 
at  their  peril.  Stripped  of  embellishments,  this  decision  of  the 
court  warns  such  commanders  that  measures  affecting  the  pri- 
vate property  of  citizens  of  the  commanders'  own  country,  un- 
dertaken to  insure  the  success  of  enterprises  upon  which  they 
are  engaged,  may  be  reviewed  by  a  jury  sitting  years  after  the 
event,  thousands  of  miles  from  the  theatre  of  that  strife  which 
gave  rise  to  those  measures.  Further,  that  the  commanders 
may  be  mulcted  in  damages  if  the  jury  does  not  view  the  at- 
tending circumstances  as  giving  rise  to  the  same  necessity  for 
action  that  they,  the  commanders,  did  when  on  the  spot  and 
compelled  to  act.  All  the  explanations  which  the  court  make 
and  the  limitations  they  think  fit  to  impose  do  not  impair  in 
the  least  the  force  and  cogency  of  the  main  idea,  namely,  that 
under  the  conditions  mentioned,  a  jury  sitting  in  another 
country  may  be  the  ultimate  judge  of  the  necessity  of  military 
measures.  It  may  be  that  this  is  necessary;  that  the  property 
rights  of  the  citizens  are  so  sacred  that  if  a  jury  in  its  wisdom 
so  wills,  they  must  be  vindicated  even  at  the  sacrifice  of  its 
armies  in  foreign  lands.  As  it  is  the  law,  all  good  soldiers  bow 
before  the  decree. 

When,  sixteen  years  after  Doniphan's  expedition,  General 
Grant  made  his  flank  march  which  resulted  in  the  isolation 
and  capture  of  the  rebel  army  at  Vicksburg,  severing  the  Con- 
federacy and  dealing  a  mortal  stroke  to  rebellion  in  the  West, 
his  army  was  accompanied  by  civilian  traders  who  were  there 
by  governmental  authority  with  their  wares  and  merchandise, 
as  certainly  private  property  as  were  those  of  Harmony  in  the 
instance  just  mentioned.  As  is  well  known,  parts  of  this  army 
were  at  various  times  straitened  for  supplies.  Suppose  the 
commanding  general,  having  Lieutenant-Colonel  Mitchell's  ex- 
perience  in  mind,  had  hesitated  to  take  them  when  the  occa- 


RESPONSIBILITY  OF   COMMANDERS.  329 

sion  in  his  opinion  demanded  the  appropriating  these  stores 
to  the  use  of  his  troops,  because  on  some  future  day  at  some 
distant  spot,  when  the  war  existed  only  in  memory,  a  jury 
should  disagree  from  him  as  to  the  necessity  that  existed  for 
his  action,  and  a  United  States  court  senterice  him  to  pay  the 
full  value  of  the  property  thus  taken,  with  interest  from  date  of 
seizure, — what  might  have  been  the  termination  of  that  historic 
campaign — what  the  fate  of  its  great  projector  and  sagacious 
executor?  What  would  have  been  thought  of  such  halting 
conduct?  He  might  have  adopted  this  course  in  view  of 
Mitchell's  fate,  and  a  timid  general  probably  would  have  done 
it.  Yet  if  in  his  judgment  the  taking  was  rendered  neces- 
sary by  the  exigencies  of  service,  not  to  have  seized  the  goods 
and  supplies  would  have  been  deemed  an  unpardonable  sin  by 
the  Executive  Department  of  the  Government  and  the  country ; 
while  if  he  could  not  justify  the  act  to  a  jury  sicting  in  judg- 
ment on  the  case  under  such  circumstances  as  to  give  them  at 
best  but  an  imperfect  appreciation  of  the  facts  as  they  appeared 
to  the  commanding  general,  he  would  be  judicially  condemned. 
Hard  indeed  may  be  the  lot  of  the  commander  placed  thus 
under  two  independent  masters,  antagonistic  in  their  constitu- 
tion, universall}^  so  in  their  views,  perhaps  in  his  case  in  their 
demands,  and  either  of  which  can  crush  him  at  will.  Still 
under  our  Constitution  and  laws  such  responsibility  seems  to 
he  necessary.  Not  to  hold  commanders  to  such  accountability 
might  lead  to  reckless  disregard  of  private  righto,  totally  sub- 
versive of  the  due  protection  of  the  citizen  under  a  free  govern- 
ment. 

It  being  conceded,  therefore,  on  the  one  hand,  that  such  dual 
responsibility  is  necessar)'  to  the  security  of  the  citizen,  and  on 
the  other  that  its  too  rigid  enforcement  is  calculated  to  deter 
xiommanders  from  executing  bold  enterprises,  which,  happily 
consummated,  will  be  of  lasting  benefit  to  the  cause  they  are  in- 
tended to  serv^e,  it  is  apparent  that  the  rights  of  private  persons 
are  not  alone  to  be  considered,  but  that  commanders  called 
upon  to  act  in  emergencies  are  to  receive  in  the  discharge  of 


330  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

delicate  and  onerous  duties  every  protection  which  comports 
with  a  due  regard  for  both  private  rights  and  the  public  weal. 

There  is  no  difficulty  regarding  the  principle  of  responsibility 
here  involved,  which  is  clearly  stated  in  the  language  of  the 
chief  justice  before  quoted ;  the  difficulty  arises  in  the  applica- 
tion of  the  principle.  If  the  emergency  of  immediate  and  im- 
pending danger,  such  as  will  not  admit  of  delay,  is  shown  to 
have  existed,  the  taking  is  justified;  the  state  of  facts  as  they 
appear  to  the  commander  must  govern  the  decision,  and  if  he 
had  reasonable  grounds  for  his  belief  it  is  sufficient;  the  dis- 
covery afterwards  that  the  grounds  of  such  belief  were  erroneous 
does  not  affect  his  liability,  i  Thus  far  the  theory  of  the  law  is 
reasonable,  even  liberal,  towards  the  officer.  It  is  through  the 
other  branch,  which  places  in  the  breasts  of  a  jury  the  determi- 
nation of  the  sufficiency  of  the  emergency  arising  out  of  the 
facts  established  in  evidence,  that  the  binding  force  of  the  rule 
is  brought  home  to  him. 

There  are  two  primary  difficulties  in  the  application  of  the 
principle,  both  of  which  militate  against  the  commander.  The 
first  is  the  almost  impossibility  of  implanting  in  the  minds  of 
the  jury  a  correct  knowledge  of  all  the  facts  and  circumstances 
which  prompted  him  to  take  the  action  he  did;  the  second  is 
that  conceding  these  faithfully  reproduced,  the  jury  being  civil- 
ians unused  to  weighing  the  various  considerations  including 
sometimes  mere  suspicions  which  determined  that  action,  can 
at  best,  and  even  with  every  desire  to  do  what  is  right  and  just 
in  the  premises,  but  imperfectly  appreciate  the  environments  of 
the  commander  at  the  time.  If  they  have  not  that  knowledge 
or  if  they  do  not  understand  its  bearings  in  a  military  point  of 
view,  there  may  be  a  miscarriage  of  justice. 

With  due  respect  it  is  believed  that  the  case  of  Mitchell  v. 
Harmony  furnishes  a  notable  illustration  of  this.  "The  ques- 
tion here  is,"  say  the  court,  "whether  the  law  permits  private 
property  to  be  taken  to  insure  the  success  of  any  enterprise 

1.  Mitchell  V.  Harmony,  13  Howard,  p.  115;  Hare,  Constitutional 
Law,  Vol.  2,  p.  917. 


RESPONSIBILITY   OF    COMMANDERS.  33 1 

against  a  public  enemy  which  the  commanding  officer  may 
deem  it  advisable  to  undertake."!  This  assumes  that  the  ex- 
pedition to  Chihuahua  was  originated  by  Colonel  Doniphan 
and  pursued  upon  his  own  authority.  This  does  not  accord 
with  the  facts.  The  conquest  of  Chihuahua  was  a  prominent 
part  of  the  governmental  plan  for  the  invasion  of  Mexico. 
Colonel  Doniphan's  expedition  was  sent  into  the  enemy's 
country  by  General  Kearney,  the  commander  of  one  of  the 
main  forces  of  invasion,  for  the  purpose  of  facilitating  the  suc- 
cess of  the  deliberately  adopted  policy  of  the  government  for 
the  prosecution  of  the  war.  The  general  here  discharged  not 
only  a  military,  but  a  patriotic  duty.  Colonel  Doniphan  was  at 
San  Eleasario  in  pursuance  of  proper  orders  issued  by  his  su- 
perior officer.  The  expedition  which  carried  him  there  and 
which  conducted  him  thence  to  Chihuahua  Avas  set  on  foot  by 
that  superior  officer.  It  was  Doniphan's  duty  to  obey  his  in- 
structions. When  at  San  Eleasario  he  learned  of  the  failure  of 
General  Wool's  column  to  penetrate  the  enemy's  territory  by 
the  line  originally  assigned  it,  the  gravity  of  his  position  became 
apparent  and  he  fully  appreciated  it.  With  a  sanguinary  re- 
bellion in  his  rear,  trackless  and  unknown  deserts  of  appar- 
ently boundless  extent  on  either  hand,  and  an  enemy  superior 
in  force  in  front,  the  stoutest  heart  might  have  quailed  at  the 
prospect.  The  situation  was  such  that  it  was  impossible  for 
Colonel  Doniphan  to  receive  instructions  frdm  his  superiors. 

In  the  new  condition  of  things  resulting  from  the  failure  of 
Wool's  column  to  advance  on  the  line  assigned  it,  the  uprising 
in  New  Mexico,  the  full  extent  of  which  was  not  understood, 
but  concerning  which  the  worst  might  well  be  feared,  it  was  in- 
cumbent upon  him  to  determine  what  course  to  pursue.  TTpon 
well-recognized  principles  he  was  vested,  under  such  circum- 
stances, with  a  militar\  discretion.  He  was  to  decide;  no 
other  could  do  it  for.  him.  Happily  fur  the  credit  of  his  coun- 
try's arms,   though  unfortunately  for  him   and  his  subordi- 

1.   13  Howard,  p.  134. 


332  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

nates,  his  courage  was  equal  to  the  emergency.  He  resolved 
the  perplexing  difficulties  which  beset  his  path  by  adopting  the 
boldest,  and  as  events  proved  at  the  same  time  the  safest,  course. 
He  pushed  forward  to  the  objective  point  contemplated  in  his 
original  instructions  although  deprived  of  that  assistance  from 
other  quarters  upon  which  those  instructions  were  predicated. 
The  fact  that  no  enemy  in  overwhelming  force  was  in  the  im- 
mediate vicinity  did  not  relieve  the  situation  of  the  character 
of  a  pressing  emergency  which  in  a  preeminent  degree  it  was. 
For  hundreds  of  miles  in  ever}^  direction,  friends  there  were 
none;  while  the  country,  but  little  known,  was  inhospitable, 
barren,  and  but  sparsely  settled.  A  few  small  towns  here  and 
there  dotted  the  streams,  but  their  inhabitants  were  implaca  le 
enemies  with  whom  the  assassin's  stilletto  was  a  more  favorite 
and  successful  weapon  of  warfare  than  the  sword.  The  rebel- 
lion and  assassinations  in  New  Mexico  presented  the  inhabitants 
of  the  entire  hostile  territory  in  a  new  and  unfavorable  light, 
namely,  that  of  conspirators  whose  promises  to  the  face  are 
fair,  but  made  only  to  lull  their  conquerors  into  a  state  of 
fancied  security  and  then  stab  them  in  the  back.  Trade  with 
them,  which  before  this  event  might  properly  have  been  en- 
couraged, could  now  well  be  interdicted  until  it  was  certainly 
known  how  far  the  disaffection  had  spread  its  baleful  influence. 
It  was  for  Colonel  Doniphan  to  judge  regarding  this  in  his  own 
immediate  vicinity.  The  danger  that  beset  and  compassed  his 
command  was  imminent,  the  exigency  was  urgent,  and  to  meet 
the  occasion  promptly  and  effectively  was  a  pressing  duty.  If 
the  actual  state  of  facts  surrounding  Colonel  Doniphan  at  the 
time  did  not  authorize  the  forcible  employment  of  every  means 
at  hand,  the  pressing  into  service  whatever  contributed  to  the 
security  of  the  troops,  or  which  would  serve  to  extricate  them 
from  surrounding  perils,  it  is  difficult  to  conceive  of  circum- 
stances which  would  justify  that  course. 

Such  was  the  state  of  facts  existing  when  Harmony's  wag- 
ons and  teams  were  taken,  his  goods  seized  upon,  his  employes 
drafted  into  the  military  service,  and  he  himself  compelled,  or 


m 


RESPONSIBILITY   OF    COMMANDERS.  333 

unwillingly  constrained  to  accompany  the  troops.  And  it  was 
for  aiding,  abetting,  and  being  the  active  instrumentality  in  en- 
forcing the  invasion  of  private  rights  that  Lieutenant-Colonel 
Mitchell  was  subsequently  assessed  in  damages  to  an  amount 
exceeding  one  hundred  thousand  dollars.  This,  notwithstand- 
ing the  defence  set  up  which  the  foregoing  narrative  shows  was 
not  colorable,  but  truthful.  Nor  should  it  be  forgotten  that 
the  seizing  officer  in  this  instance  had,  throughout  this  contro- 
versy, both  the  moral  and  legal  support  of  the  Executive  De- 
partment of  the 'Government.  Harmony's  claim  to  remunera- 
tion was  rejected  as  inadmissible  by  the  greatest  jurist,  per- 
haps, who  has  occupied  the  position  of  Secretary  of  War; 
while,  as  before  mentioned,  the  United  States  attorney  de- 
fended and  justified  the  seizure  before  the  courts. 

In  delivering  the  opinion  the  chief  justice  cited  the  case  of 
Captain  Gambler  of  the  Royal  Navy,  who,  acting  under  the 
admiral's  orders,  and  because  the  owners  carried  on  an  annoy- 
ing liquor  traffic  with  the  sailors  of  the  fleet,  destroyed  a  number 
of  shanties  on  the  coast  of  Nova  Scotia,  for  which  act,  being 
sued  in  the  courts  of  England,  he  was  severely  mulcted  in  dam- 
ages. But  the  cases  in  their  essential  and  determining  features 
are  not  analogous.  The  captain  proceeded  on  the  principle  of 
convenience  summarily  to  abate  a  nuisance ;  there  was  no  press- 
ing necessity,  no  imminent  peril,  no  great  exigency  that  had  to 
be  met  without  delay.  Whatever  inconvenience  resulted  from 
the  acts  of  these  evil-disposed  citizens  could  easily  have  been 
remedied  by  restraining  the  sailors  who  misbehaved,  a  minor 
incident  of  discipline  which  occurs  frequently  in  military  life. 
For  some  reason  such  m.casures  did  not  seem  sufficiently  severe 
to  Captain  Gambler,  who  preferred  to  cut  up  the  evil  by  the 
roots  by  extirpating  the  nefarious  business.  But  in  so  doing 
he  clearly  invaded  private  rights.  The  measures  requisite  to 
the  maintenance  of  a  proper  discipline  in  their  forces  are  placed 
by  law  in  the  hands  of  military  officers,  and  they  have  no  more 
right  than  civilians  to  go  beyond  the  limits  of  their  authority 
to  destroy  the  property  of  subjects  because  it  might  tend  to  the 


334 


MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 


preservation  of  better  order  among  the  troops.  That  was  what 
Captain  Gambier  did ;  that  the  mistake  he  made ;  but  it  is  ap- 
prehended that  the  unprejudiced  will  see  but  little  similarity 
between  that  case  and  the  case  of  Lieutenant-Colonel  Mitchell, 

It  is  clear  that  Harmony's  private  property  was  taken  for 
public  use.  It  does  not  impair  the  potency  of  this  fact  that  all 
the  wagons,  animals,  and  goods  were  not  worn  out  in  the  mili- 
tary service;  they  were  lost  to  him  through  the  acts  of  the 
military  officers;  therefore  he  was,  unless  moral  turpitude 
tainted  his  acts  and  impaired  his  rights,  entitled  to  just  com- 
pensation. 1  Conspiracy  with  the  enemy,  or  even  strongly 
suspicious  circumstances  indicating  it,  if  proved,  defeat  all 
claims  to  consideration.  It  is  not  known,  however,  that  this 
was  seriously  alleged,  though  something  of  the  kind  was  hinted 
at  on  the  trial.  It  is  not  known  on  what  grounds  Harmony's 
claim  to  compensation  was  opposed  by  the  War  Department. 
Justice  and  fair  dealing  would  seem  to  counsel  that  the  Gov- 
ernment having  had  the  benefit  of  the  property,  the  owner, 
unless  criminal  conduct  impaired  his  rights,  was  entitled  to 
be  paid  for  it. 

The  principle  of  responsibility  involved  in  this  case  is  identi- 
cal with  that  of  the  Messrs.  Porter  set  forth  in  the  opinion  of 
Attorney-General  Bates,  April  25,  1861 . 2  Here  the  property  of 
traders  who  were  en  route  from  the  States  to  Salt  Lake,  Utah, 
the  theatre  of  the  Mormon  rebellion,  and  consisting  of  wagons, 
animals  and  merchandise,  was  appropriated  for  or  pressed  into 
the  service  of  the  United  States  by  General  A.  S.  Johnson,  com- 
manding the  army.  If  there  was  any  distinction  between  the 
cases  the  necessity  which  impelled  Colonel  Doniphan  to  act 
was  the  more  pressing — the  circumstances  of  peril  being  far 
greater  than  those  surrounding  General  Johnson.  That  the 
Porters  should  not  have  been  permitted  to  trade  with  the  rebel- 
lious Mormons  is  evident;  but  that  any  paramount  military 
necessity  existed  for  appropriating  the  property  to  further  the 
plans  of  government  was  a  different  question.     This,  however, 

I.  5th  Amendment,  Constitution  U.  S.     2.   10  Opinions,  p.  21. 


RESPONSIBILITY  OF   COMMANDERS.  335 

was  done,  only  in  this  instance  the  military  officer  was  not  con- 
sidered a  trespasser.  "It  is  not  denied,"  says  the  Attorney- 
General,  "by  anybody  that  the  facts  make  out  a  strong  case 
against  the  Government  for  compensation  for  these  losses,  for  it 
is  evident  that  the  order  of  General  Johnson  and  the  military 
control  established  and  maintained  by  him  over  this  train, 
which  we  have  seen  was  the  cause  of  this  loss,  were  the  wise 
and  proper  precautions  of  an  officer  to  protect  his  own  force 
and  prevent  his  enemy  from  being  strengthened."  i 

319.  Without  remedial  legislation  the  position  of  both 
property-owners  and  military  officers  in  these  and  all  similar 
cases  was  one  of  great  hardship,  calculated  to  work  injustice. 
The  former  had  either  to  seek  redress  in  damages  through  the 
courts  or  turn  to  Congress  for  compensation — the  first  involving 
all  the  delays  and  expenses  incident  to  making  out  a  case  of 
trespass  under  the  strict  rules  of  law;  the  second,  the  at  least 
equal  delay  and  expense  attendant  upon  securing  legislative 
aid.  To  the  officer  it  meant  the  annoyance  and  expense  of  a 
civil  suit,  and  ultimateh^  perhaps,  being  held  liable,  because 
at  the  trial  he  could  not  justify  measures  taken  in  the  field  by 
those  technical  rules  which  were  intended  only  for  a  forum 
erected  for  determining  causes  arising  under  widely  different 
circumstances. 

320.  Section  2  of  the  act  of  March  3,  1849,  remedied  this  dif- 
ficulty, at  least  partially.  The  provisions  of  this  law  extended 
in  application  to  horses,  mules,  oxen,  wagons,  carts,  boats, 
sleighs,  or  harness  belonging  to  private  citizens,  and  provided 
for  compensation  to  the  owners;  (i),  where  the  property  was 
captured  or  destroyed  by  the  enemy;  (2),  where  abandoned 
or  destroyed  by  order  of  the  commander ;  (3),  where  the  loss  re- 
sulted from  the  failure  of  the  Government  to  furnish  forage, 
and  (4),  where  the  loss  resulted  from  unavoidable  accident;  but 
in  all  these  cases  it  was  essential  that  the  property  should  have 
been  in  the  militarv  service  of  the  United  States  either  by  im- 


I.   10  Opinions,  PP.  22,  23. 


336  MILITAEY    GOVERNMENT    AND    MARTIAL   LAW. 

pressment  or  contract ;  that  the  loss  should  have  occurred  by 
no  fault  of  the  owner,  and  that  it  should  have  occurred  while 
the  property  was  actually  employed  in  the  service.  Claims  to 
compensation  so  arising  were  to  be  adjusted  by  the  third  aud- 
itor of  the  Treasury,  under  rules  prescribed  by  the  Secretary  of 
War  under  the  direction  or  with  the  assent  of  the  President  of 
the  United  States,  and  the  certificate  of  the  auditor  was  suf- 
ficient warrant  for  payment  at  the  Treasury.  The  law,  being 
remedial  in  its  nature,  was  so  construed  as  to  advance  the 
remedy.  Consequently  the  adjustment  of  the  claims  of  those 
coming  within  its  rather  narrow  terms  was  simplified  and 
greatly  expedited.  If  the  property  was  impressed  into  the  ser- 
vice, it  was  necessary  to  furnish  the  evidence  of  the  officer  by 
whom  the  impressment  was  made,  showing  when  and  where  it 
was  done,  by  what  authority  and  under  whose  order,  the 
reasons  therefor,  and  whether  at  the  time  it  was  lost  or  de- 
stroyed it  was  actually  emploj'ed  in  the  service  of  the  United 
States.  By  Section  5,  Act  of  March  3,  1863,  the  provisions  of 
the  act  of  1 849  quoted  were  made  applicable  to  steamboats  and 
other  vessels  and  railroad  engines  and  cars  when  destroyed  or 
lost  under  the  circumstances  described  in  the  last  mentioned 
act.  1 

321.  By  act  approved  February  24,  1855,2  the  Court  of 
Claims  was  established.  It  was  for  the  triple  purpose  of  reliev- 
ing Congress  from  the  burden  of  examining  into  the  merits  of 
individual  claims  for  compensation,  of  protecting  the  Govern- 
ment by  regular  investigation,  and  of  benefiting  private  parties 
by  affording  a  certain  mode  for  having  their  private  demands 
adjusted.  The  court  was  required  to  hear  and  determine  upon 
claims  founded  upon  any  law  of  Congress  or  upon  any  regula- 
tion of  an  executive  department,  or  upon  any  contract  express 
or  implied  with  the  Government  of  the  United  States.  3  And 
while  under  the  rulings  of  the  Court  of  Claims  the  Government 
is  liable  for  refusing  to  receive  and  pay  for  what  it  has  agreed 

I.  Chap.  78.     2.   ro  Statutes  at  Large,  p.  12.     3.   13  Wallace,  p.  136. 


RESPONSIBILITY  OF   COMMANDERS.  337 

to  receive  and  purchase,  it  is  not  liable  on  implied  assumpsit 
for  the  torts  of  its  officers  committed  while  in  the  service  and 
apparently  for  its  benefit,  i  The  act  of  July  2,  1864,  provided 
that  the  jurisdiction  of  the  Court  of  Claims  should  not  extend 
to  any  demand  against  the  United  States  growing  out  of  the  de- 
struction or  appropriation  of  or  damage  to  property  by  the 
army  or  navy  engaged  in  the  suppression  of  the  Rebellion.  2 

The  policy,  founded  on  wisdom  and  necessity,  of  exempting 
the  Government  from  liability  for  wrongs  done  to  individuals 
by  officers  has  been  extended  to  injuries  committed  by  such 
officers  while  serving  the  Government,  in  the  belief  that  their 
acts  were  for  the  public  good.  Hence  the  law  excepts  actions 
sounding  in  tort  from  the  jurisdiction  of  the  court.  Such 
cases  are  reserved  for  the  special  action  of  Congress. 

322.  In  the  exercise  of  his  power  to  institute  and  carry 
military  government  into  execution  the  commander  is  entitled 
to  greatest  consideration,  both  when  judging  of  the  motives 
which  prompted  him  to  act  and  the  necessity  which  existed 
for  the  measures  which  he  adopted.  The  presumption  is  that 
he  has  properly  made  use  of  his  authority.  His  is  a  position 
in  which  swiftness  of  action  may  be  the  only  safety.  He  cannot 
always  w^it  for  legal  evidence  before  taking  his  measures. 
An  honest  exercise  of  discretion  in  the  performance  of  his 
military  duty  will  not  render  him  liable  to  be  treated  as  a  tres- 
passer. 3  In  the  first  instance  he  alone  must  decide  upon  all 
questions  arising ;  he  alone  has  the  needful  knowledge  of  facts, 
and  he  is  bound  to  exercise  his  judgment  upon  them.  No 
officer  who  is  given  a  discretion  in  the  performance  of  his  public 
duties  is  punishable  because  his  judgment  differs  from  that 
of  others.  The  question  is,  Did  he  use  the  discretion  reasonably, 
and  honestly  intend  to  do  his  duty?  If  so,  and  the  subject- 
matter  for  determination  be  within  his  discretion,  he  cannot 
be  held  responsible  because  in  the  light  of  subsequent  events 
that  judgment  was  at  fault. 

I.  8  Wallace,  p.  269.  2.  Chap.  225.  3.  18  Howard,  p.  123;  12  How- 
ard, p.  390. 

—22— 


338  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

323.  "Wherever,"  said  the  Supreme  Court  of  Massachu- 
setts, "the  law  vests  in  an  officer  or  magistrate  a  right  of  judg- 
ment and  gives  him  a  discretion  to  determine  the  facts  on  which 
such  judgment  is  to  be  based,  he  necessarily  exercises  ^vithin  the 
limits  of  his  jurisdiction  a  judicial  authority.  So  long  as  he 
acts  within  the  fair  scope  of  his  authority  he  is  clothed  with  all 
the  rights  and  immunities  which  appertain  to  judicial  tribunals 
in  the  discharge  of  their  appropriate  functions.  Of  these  none 
is  better  settled  than  the  wise  and  salutary  rule  of  law  by 
which  all  magistrates  and  officers,  even  when  exercising  a 
special  and  Hmited  jurisdiction,  are  exempt  from  Hability  for 
their  judgments,  or  acts  done  in  pursuance  of  them,  if  they  do 
not  exceed  their  authority,  although  the  conclusions  to  which 
they  arrive  are  false  and  erroneous.  The  grounds  of  their  judg- 
ments cannot  be  inquired  into,  nor  can  they  be  held  responsi- 
ble therefor  in  a  civil  action.^  This  protection  and  immunity 
are  essential  in  order  that  the  administration  of  justice  and  the 
discharge  of  important  public  duties  may  be  impartial,  inde- 
pendent, and  uninfluenced  by  fear  of  consequences.  And  they 
are  the  necessary  result  of  the  nature  of  judicial  power.  It 
would  be  most  unreasonable  and  unjust  to  hold  a  magistrate 
liable  for  the  lawful  and  honest  exercise  of  that  judgment  and 
discretion  with  which  the  law  invests  him,  and  which  he  was 
bound  to  use  in  the  discharge  of  his  official  duties.  Nor  would 
there  be  any  safeguard  or  security  to  the  magistrate  or  other 
officer  against  liability,  however  careful  and  discreet  he  may  be 
in  exercising  his  authority,  if  his  judgments  were  to  be  ex- 
amined into  and  revised  in  ulterior  proceedings  against  him  in 
the  light  of  subsequent  events,  upon  new  evidence,  and  with 
different  means  of  forming  conclusions  from  those  upon  which 
he  was  required  to  act  in  the  performance  of  his  duty.  Such 
an  ex  post  facto  judgment  might  be  more  sound  and  wise,  but 
it  would  not  be  a  just  or  proper  standard  by  which  to  try  the 
opinions  and  conduct  of  an  officer  acting  at  a  different  time  and 

I.    2   Gray,   pp.    120,  410;     12   Howard,   p.   390;     7   Howard,  p.  89; 
I  Abbott,  pp.  212-245;    12  Wheaton,  p.  19;    12  Peters,  p.  516. 


RESPONSIBILITY   OF    COMMANDERS.  339 

under  other  circumstances.  Especially  is  this  true  where. a 
public  officer  is  compelled  to  act  promptly  and  in  a  pressing 
emergency."  i 

In  its  application  to  military  men  this  principle  is  equally 
well  established,  whether  the  authority  for  this  action  be  found 
in  the  statute  or  the  common  law  of  war.  In  proper  cases 
within  its  scope  the  latter  is  equally  as  potent  as  the  former. 
Its  agents  are  equally  protected  in  the  discharge  of  their  duties. 
It  is  proper  that  it  be  so.  The  officer,  civil  or  military,  who 
acts  under  the  authority  of  statutory  law  generally  has  time  for 
reflection,  and  opportunity  more  or  less  extensive  to  examine 
into  the  necessity,  propriety,  and  bearing  of  measures  which  he 
may  be  called  upon  to  adopt.  If,  therefore,  he  is  protected 
while  acting  within  the  sphere  of  his  authority,  in  the  manner 
before  indicated,  so  much  the  more  should  be  the  commander 
who  on  the  theatre  of  active  military  operations  must  take 
measures  regarding  matters  which  arise  upon  the  instant  and 
which  do  not  admit  of  delay. 

324.  It  is  true  that  all  matters  arising  under  military  gov- 
ernment may  not  be  of  this  urgent  nature.  The  system  of  ad- 
ministration is  determined  upon  after  mature  deliberation. 
Yet  unquestioned  recognition  by  all  within  its  domain  of  the 
supremacy  of  military  rule  will  ever  be  insisted  upon.  The 
duty  of  cheerful  submission  thereto  cannot  be  abated,  and  the 
necessity  that  exists  for  prompt  example  in  case  of  offenders 
will  ever  be  present.  Any  other  principle  might  jeopardize 
the  success  of  campaigns,  the  issues  of  the  w^ar.  The  situation 
of  the  commander,  therefore,  is  one  requiring  the  exercise  of  a 
wise  discretion  and  high  order  of  ability.  And  immunity 
from  accountability,  except  to  his  military  superiors,  so  long 
as  he  has  reasonable  cause  to  deem  his  measures  justified  by 
events  as  they  appear  to  him,  is  his  safeguard  in  the  discharge 
of  delicate,  responsible,  and  onerous  duties. 

The  situation  depicted  by  Lord  Mansfield,  in  Johnson   v. 


I.  5  Gray  (Mass.),  p.  121  ei  seq. 


340  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

Sutton,  is  applicable  here:  "Commanders,  in  a  day  of  battle,, 
must  act  upon  delicate  suspicions,  upon  the  evidence  of  their 
own  eye ;  they  must  give  despei  ate  commands ;  they  must  re- 
quire instantaneous  obedience."  "But,"  he  adds,  "what  posi- 
tion will  a  commander  be  in  if,  upon  the  exercising  of  his 
authority,  he  is  liable  to  be  tried  by  a  common-law  judicature  ? 
Not  knowing  the  law  or  the  rules  of  evidence,  no  commander  or 
superior  officer  will  dare  to  act;  their  inferiors  will  insult  and 
threaten  them."  The  intensity  of  the  situation  of  the  com- 
mander enforcing  military  government  may  be  less  than  in  the 
case  here  described.  "But  it  is  a  difference  in  degree  only,  not 
in  kind.  In  both  situations  the  necessity  exists  for  prompt  and 
independent  judgment  upon  the  condition  of  things  as  viewed 
by  the  responsible  officer.  In  each  a  wide  field  is  given  for 
the  exercise  of  discretion.  In  each,  moments  may  arise  when 
a  determination  must  be  come  to  of  far-reaching  consequences, 
with  nothing  to  govern  in  arriving  at  a  decision  except  the 
judgment  of  him  upon  whom  rests  the  responsibility  of  acting. 
In  the  ordinary  affairs  of  military  government,  however,  he 
will  have  opportunity  for  greater  deliberation.  He  will  then 
have  as  guides  to  aid  his  judgment,  not  only  the  apparent 
merits  of  the  case  in  hand,  but  the  surrounding  circumstances, 
the  demands  of  the  military  situation,  his  obligations  to  his 
own  government,  and  the  laws  of  war. 

But  it  will  not  be  forgotten  that  he  must  often  act  upon  the 
limited  evidences  of  his  own  senses,  or  the  reports  of  others,  and 
that  promptly.  The  cause  of  the  government  may  depend  upon 
his  firmness,  wariness,  and  apparently  arbitrary  acts.  The 
very  atmosphere  may  be  fraught  with  danger  which  others  do 
not  discern,  but  yet  be  apparent  to  him  whose  duty  it  is  to  keep 
thoroughly  informed,  and  to  whom  is  entrusted  the  honor  of  an 
army,  the  success  of  a  distant  expedition.  Nor  are  his  sources 
of  information  always  above  suspicion.  The  inhabitants  of  the 
occupied  territory  are  inimical  to  his  cause.  Every  success  of 
his  enemies  is  hailed  by  them  with  ill-concealed  delight.  Vigi- 
lance is  his  rule  of  conduct,  vigor  marks  his  actions.     Otherwise 


i 


RESPONSIBILITY   OF    COMMANDERS.  34 1 

he  would  prove  unworthy  of  the  confidence  reposed  in  him. 
And  as  the  responsibility  he  is  under  to  his  military  superiors 
and  his  government  is  great,  so  in  corresponding  degree  should 
be  the  powers  with  which  he  is  vested.  Nor  is  it  a  legitimate 
objection  to  its  existence  that  some  may  abuse  this  power. 
Wherever  power  is  lodged  it  may  be  abused,  but  this  forms  no 
solid  objection  against  its  exercise.  Confidence  must  be  re- 
posed somewhere.  And  in  whom,  may  we  ask,  is  it  more 
rationally  reposed  than  in  military  officers  in  the  midst  of 
enemies,  where  specific  instructions  to  meet  the  varying  phases 
of  events  cannot  be  obtained  from  superiors,  and  where,  even 
if  this  were  attempted,  they  might  be  inapplicable  to  the  actual 
situation  of  affairs,  and,  if  followed,  would  jeopardize  the  cause 
they  were  intended  to  subserve?  His  is  peculiarly  the  case 
where  judgment  is  required,  and  therefore  he  must  be  vested 
with  discretion. 

325.  As  for  subordinates,  the  rule  is  established  that  rf  they 
receive  orders  from  their  lawfully  constituted  superiors  which 
do  not  expressly  show  on  their  face  or  in  the  body  thereof  their 
own  illegality,  they  would  be  bound  to  obey  such  orders  which 
would  be  a  protection  to  them.  1  "It  is  a  general  and  sound 
principle,"  say  the  court  in  Vanderheyden  v.  Young,  "that 
whenever  the  law  vests  one  with  a  power  to  do  an  act,  and  con- 
stitutes him  a  judge  of  the  evidence  on  which  the  act  may  be 
done,  and  at  the  same  time  contemplates  that  the  act  is  to  be 
carried  into  eff'ect  through  the  instrumentality  of  agents,  the 
person  thus  clothed  with  power  is  vested  with  discretion  and  is, 
quoad  hoc,  a  judge.  His  mandates  to  his  legal  agents,  on  his 
declaring  the  event  to  have  happened,  will  be  a  protection  to 
those  agents,  and  it  is  not  their  business  or  duty  to  investigate 
the  facts  thus  referred  to  their  superior  and  to  re-judge  his  de- 
termination. In  a  military  point  of  view  the  contrary  doctrine 
would  be  subversive' of  all  discipline."  2  To  the  same  effect 
are  the  remarks  of  Mr.  Justice  Curtis  in  Despan  v.  Olney,  where 


I.  Riggs  V.  State,  3  Cold  well,  p.  85.     2.   11  Johnson,  N.  Y 


342  MILITAKY    GOVERNMENT    AND   MARTIAL   LAW. 

a  general  officer,  acting  under  authority  of  law  for  sufficient 
cause  known  to  him,  had  directed  a  subordinate  to  arrest  the 
plaintiff.  "I  do  not  think  the  defendant  was  bound  to  go  be- 
hind the  order,  thus  apparently  lawful,  and  satisfy  himself  by 
inquiry  that  his  commanding  officer  proceeded  upon  sufficient 
grounds.  To  require  this  would  be  destructive  of  military 
discipline  and  of  the  necessary  promptness  and  efficiency  of 
the  service."  1 

326.  The  principle  that  commanders  in  enemy  territory 
subject  to  military  occupation  are  peculiarly  entitled  to  and 
must  from  considerations  of  public  policy  and  even-handed 
justice  receive  every  protection  while  exercising  discretionary 
authority  within  their  respective  spheres  of  duty,  is  not  without 
analogies  drawn  from  other  branches  of  government.  It  is 
particularly  true  of  judges  on  the  bench.  "  It  is  a  general  prin- 
ciple of  the  highest  importance,"  said  the  Supreme  Court,  "to 
the  proper  administration  of  justice,  that  a  judicial  officer  in 
exercising  the  authority  invested  in  him  shall  be  free  to  act  upon 
his  own  convictions  without  apprehensions  of  personal  conse- 
quences to  himself.  'It  has,'  as  Chancellor  Kent  observes,  'a 
deep  root  in  the  common  law.'  Nor  can  this  exemption  of 
judges  from  civil  liability  be  affected  by  the  motive  which 
prompts  them  to  their  judicial  acts."  2  A  distinction  was  made 
between  excess  of  jurisdiction  and  the  clear  absence  of  all 
jtirisdiction  over  the  subject-matter.  In  the  latter  case  the 
authority  exercised  is  usurped  and  when  known  to  the  judge 
no  excuse  is  permissible. 

327.  When  jurisdiction  is  vested  by  law  in  the  judge  or  in 
the  court  which  he  holds,  the  mode  in  which  it  shall  be  exercised 
is  generally  as  much  a  question  for  his  determination  as  any 
other  in  the  case,  although  upon  the  correctness  of  his  deter- 
mination in  this  particular  the  validity  of  his  judgments  may 
depend.  Against  the  consequences  of  the  erroneous  or  irregular 
action  of  judges,  from  whatever  motive  proceeding,  the  law  has 

I.   I  Curtis  (C.  C),  p.  306.     2.   13  Wallace,  p.  335. 


RESPONSIBILITY   OF    COMMANDERS.  343 

provided  for  private  parties  numerous  remedies,'~and  to  these 
they  must  resort.  But  for  malice  or  corruption  in  their  rxtions 
whilst  exercising  their  judicial  functions  within  the  general 
scope  of  their  jurisdiction,  judges  can  only  be  reached  by  public 
prosecution  in  the  form  of  impeachment,  or  in  such  other  form 
as  ma}^  be  specially  prescribed,  i  Commenting  on  the  subject^ 
Lord  Coke  quaintly  said:  "And  the  reason  and  cause  why  a 
judge,  for  anything  done  by  him  as  judge,  by  the  authority 
which  the  King  hath  committed  to  him,  and  as  sitting  in  the 
seat  of  the  King  (conccining  his  justice),  shall  not  be  drawn  in 
question  before  any  other  judge,  for  any  surmise  of  corruption,, 
except  before  the  King  himself  in  this :  the  King  himself  is  de 
jure  to  determine  justice  to  all  his  subjects,  and  for  this  that  he 
himself  cannot  do  it  for  all  persons,  he  delegates  his  power  to  his 
judges,  who  have  the  custody  and  guard  of  the  King's  oath. 
And  for  inasmuch  as  this  concerns  the  honor  and  conscience  of 
the  King,  there  is  great  reason  why  the  King  himself  shall  take 
account  of  it,  and  none  other."  2 

This  immunity  of  judges  from  prosecution  for  acts  within 
their  jurisdiction  is  not  so  much  for  their  benefit  as  for  the 
benefit  of  the  suitors  themselves.  Yet  it  is  a  wise  and  benefi- 
cent provision  of  the  law.  The  impartial  administration  of 
justice  demands  that  judges  shall  be  uninfluenced  by  consider- 
ations personal  to  themselves.  If  it  were  not  so,  they  would 
soon  be  found  consulting  their  own  interests,  for  they  are  but 
men,  and  human  nature  long  and  severely  tested  will  always 
assert  itself. 

Do  not  similar  considerations  of  public  policy  require  the 
mantle  of  obscurity  to  be  thrown  over  military  commanders  who 
are  called  upon  in  time  of  pressing  necessity  when  great  exi- 
gencies confront  them  to  act  for  the  pubhc  weal?  After  having 
served  the  State  in  Some  signal  manner,  is  their  conduct  to  be 
tested  by  rules  of  law  inapplicable  to  the  times  and  circum- 
stances which  then  surrounded  them?     If  so,  can  it  be  supposed 

».   13  Wallace,  p.  335.     2.   Floyd  i;.  Barker,  12  Coke,  p.  23. 


344  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

that  they  will  be  unmindful  of  the  fact  ?  Will  its  tendency  not 
be  to  make  commanders  timid  at  the  very  time  they  should  act 
promptly  and  boldly  ?  Why  will  it  not  be  ?  Are  commanders 
less  than  judges,  human  beings?  Have  feelings  of  patriotism, 
the  promptings  of  virtue,  and  spirit  of  self-sacrifice  driven  from 
their  hearts  and  minds  all  feelings  of  self-interest?  To  some 
extent  this  is  true ;  the  career  of  arms,  as  is  well  known,  is  not 
the  path  of  emolument.  But  soldiers  instinctively  dread  the 
meshes  of  the  civil  law  whose  sinuosities  they  are  not  accus- 
tomed to,  do  not  understand,  and  to  become  involved  in  which 
it  is  likely  to  prove  disastrous  to  them.  The  feeling  that  they 
may  be  called  civilly  to  account  for  their  actions  must  in  the 
nature  of  things  have  a  deterrent  effect  upon  them ;  and  while 
this  may  operate  beneficially  in  some  instances  by  protecting 
the  citizen,  it  may,  on  the  other  hand,  be  the  cause  of  sacrificing 
great  governmental  interests,  those  in  which  not  only  the  rights 
of  individuals,  but  the  well-being  of  society  itself  is  involved, 
because  under  such  liabilities  to  civil  suits  officers  may  hesitate 
to  assume  the  responsibility  of  acting  a  decisive  part  on  pressing 
and  important  occasions. 

328.  It  is  not  contended  that  military  officers  enforcing  mil- 
itary government  should  be  absolutely  irresponsible  before  the 
civil  court  of  their  own  country  for  their  conduct  toward  sub- 
jects and  neutrals,  and  answerable  only  to  their  militaiy  super- 
iors ;  even  judges  are  subject  to  impeachment ;  but  what  is  con- 
tended for  is  this,  that  the  principle  being  recognized  that  public 
policy  is  subserved  by  granting  immunity  from  prosecution 
for  their  official  acts  to  certain  governmental  functionaries, 
notably  the  members  of  the  judiciary,  the  same  01  similoi  con- 
siderations prompt  to  a  libeial  rule  regarding  civil  liability  of 
military  officers  under  the  circumstances  mentioned.  A  slight 
attention  to  the  surroundings  of  the  two  classes  of  officers, 
judges  and  military,  will  make  this  plain.  The  former  attend 
lo  their  duties  amidst  scenes  of  peace,  and  only  when  they  are 
driven  from  theii  seats  by  violence  which  the  civil  power  can 
not  control  are  the  military  called  upon  to  act  in  their  stead; 


I 


RESPONSIBILITY   OF    COMMANDERS.  345 

the  civil  functionaries  have  all  necessary  time  for  deliberation, 
and  at  hand  every  means  for  ascertaining  the  law  and  prece- 
dents governing  the  case;  and  if  any  new  feature  of  law  or 
phase  of  human  action  arises  not  familiar  to  them,  their  opin- 
ions, if  they  be  judges,  are  reserved  until  a  thorough  investiga- 
tion can  be  made,  all  pertinent  authorities  examined,  and  the 
judicial  mind,  assisted  and  enlightened  by  arguments  of  learned 
counsel,  brought  calmly  and  carefully  to  bear  upon  the  point 
involved.  Almost  the  reverse  of  all  this  is  true  of  the  officer 
under  mihtary  government  who  must  oftentimes  act  upon  the 
instant  without  time  for  consulting  aught  except  what  appears 
to  be  public  necessity,  amidst  scenes  which  absolutely  preclude 
the  receipt  and  examination  of  legal  evidence ;  and  even  though 
the  exigency  should  not  be  of  this  sudden  character,  the  pres- 
sure of  long-accumulating  events,  the  carrying  out  a  predeter- 
mined governmental  policy  may  cause  him  to  adopt  the  most 
apparently  arbitrary  measures  to  guard  vital  public  interests 
entrusted  to  his  care.  And  reason  indicates  that  if  from  public 
policy  judges  should  be  accorded  immunity  from  prosecution, 
which  is  nowhere  denied  to  them  oi  none  would  deprive  them  of, 
then  that  military  officers  in  the  discharge  of  what  appears  to 
be  their  duty  under  the  circumstances  mentioned  are  entitled 
to  have  their  acts  generously  construed,  and  to  receive  the 
most  liberal  consideration  consistent  with  the  preservation  of 
those  ultimate  and  inviolable  rights  of  the  subject  which  cannot 
be  sacrificed  without  a  complete  subversion  of  the  social  fabric. 
329.  The  Civil  War  was  fruitful  in  experiences  of  this  nature. 
Frequent  causes  of  action  arose  and  the  principles  of  civil  re- 
sponsibility involved  often  became  the  subject  of  judicial  de- 
cision. In  many  respects  these  were  often  conflicting  in  greater 
or  less  degree.  This  was  but  natural  because  of  the  diversity 
of  interests  involved' and  local  prejudices,  of  which  even  judges 
could  not  divest  themselves.  But  as  the  war  progressed,  as  the 
necessity  for  sustaining  military  commanders  became  more  ap- 
parent, as  judges,  instructed  by  the  logic  of  events,  began  to 
interpret  the  law  by  the  aid  of  practical  facts,  as  military  neces- 


346  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

sity  passed  from  the  domain  of  speculation  to  a  momentous 
condition  of  facts  which  had  to  be  met  and  determined  in  the 
presence  of  war,  the  decisions  of  courts  became  more  liberal 
toward  military  officers.  And  the  more  exalted  the  court,  the 
greater  the  learning,  dignity,  and  responsibility  of  the  judges, 
the  more  carefully  were  the  principles  underlying  the  main- 
tenance of  military  government  unfolded,  amplified,  and  made 
plain  for  the  protection  of  officers  concerned  and  the  guidance 
of  those  to  come  hereafter. 

In  Taylor  v.  Nashville  and  Chattanooga  Railroad,  the  Su- 
preme Court  of  Tennessee  observed  that  the  rights  of  the  State 
to  impress  and  take  private  property  for  the  use  of  the  army  in 
the  field,  on  the  actual  theatre  of  military  operations,  was  per- 
fect, and  without  it  a  nation  could  not  exist,  i  It  must  be 
exercised  by  military  officers.  They  must  use  a  discretion, 
and  that  discretion,  unless  shown  to  have  been  wantonly  and  in 
bad  faith  abused,  cannot  be  revised  in  civil  courts.  "The  ne- 
cessity is  not  of  that  overwhelming  character  which  admits  of  no 
alternative.  If  the  interest  at  stake  may  probably  be  promoted 
by  the  appropriation  of  the  property  it  is  the  right  and  duty  of 
the  officer,  upon  whom  rests  the  obligation  to  omit  no  useful  pre- 
caution, to  take  and  appropriate  it.  It  is  true  a  military  com- 
mander has  no  right  to  take  private  property  without  a  neces- 
sity exists  for  doing  so.  But  the  law,  while  active  military 
operations  are  being  carried  on,  makes  him  the  judge  of  the 
necessity  and  he  cannot  be  held  responsible  in  a  civil  tribunal 
for  mere  errors  of  judgment.  Were  it  otherwise,  were  a  mili- 
tary commander  required  to  be  prepared  to  prove  at  any  subse- 
quent time,  the  inevitable  necessity  for  marching  an  army 
across  a  citizen's  farm,  or  fighting  a  battle  around  his  house,  or 
consuming  his  produce,  our  officers  would  be  in  greater  danger 
from  their  friends  than  from  their  enemies.  A  commander 
under  such  circumstances  may  and  ought  to  take  such  property 
as  in  his  judgment  is  necessary,  or  may  possibly  contribute  to 

I.  6  Coldwell,  p.  646. 


RESPONSIBILITY   OF    COMMANDERS.  347 

save  the  lives  of  his  soldiers  and  insure  the  success  of  his  cam- 
paign; and  if  in  good  faith  he  deems  the  taking  necessary  he 
cannot  be  required  to  weigh  nicely  in  the  balances  against  these 
great  objects,  the  value  of  a  load  of  wood  or  of  a  bushel  of  corn. 
The  responsibility  and  the  discretion  rest  with  the  commander, 
and  when  he  in  good  faith  assumes  the  one  and  exercises  the 
other,  a  civil  court  cannot  reverse  his  decisions,  but  must  pre- 
sume that  the  discretion  was  properly  exercised." 

It  is  true  that  the  plaintiff  in  this  case  was,  when  this  seizure 
was  made,  a  citizen  of  Tennessee — at  the  time  in  a  state  of  in- 
surrection— and  he  was  therefore  technically  in  the  position  of 
a  public  enemy;  but  at  the  time  of  the  suit  he  was  a  citizen 
of  the  United  States,  clothed  with  all  his  rights  as  such,  and 
the  court  was  administering  the  law  under  the  Constitution 
of  the  United  States.  The  decision  was  intended  to.  and  did 
formulate  the  law,  as  understood  by  the  court,  applicable  to 
military  officers  under  the  circumstancs  assumed,  and  be- 
speaks an  enlarged  discretion  amidst  such  surroundings^ 

330.  The  decision  heretofore  referred  to  of  the  Supreme 
Court  of  the  United  States,  reaffirming  that  of  the  supreme  ju- 
dicial tribunal  of  Mississippi  in  the  case  of  Ford  v.  Surget,  con- 
firms in  substance  the  principles  set  forth  in  the  Tennessee 
Supreme  Court  decision  just  cited.  1  The  act  of  the  Confeder- 
ate Government,  March  6,  1862,  made  it  the  duty  of  military 
commanders  to  destroy  all  cotton,  tobacco,  or  other  property 
whenever,  in  their  judgment,  it  should  be  about  to  fall  into  the 
hands  of  the  enemy.  The  Supreme  Court  said  that  this  act  con- 
ferred upon  Confederate  military  officers  no  authority  other 
than,  consistently  with  the  laws  and  usages  of  war,  they  might 
have  exercised  without  such  previous  sanction.  They  had  the 
right,  as  an  act  of  war,  to  destroy  private  property  within  the 
lines  of  insurrection  belonging  to  those  who  were  directly  or 
indirectly  cooperating  therein  against  the  authority  of  the 
United  States  if  such  destruction  seemed  to  be  required  by  im- 
pending necessity  for  the  purpose  of  retarding  the  advance  or 

1.  97  U.  S  ,  p.  596 


348  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

crippling  the  military  operations  of  the  Federal  forces.  The 
burning  of  the  cotton  or  other  propert)^  which  would  add  to  the 
warlike  resources  of  the  Union  was,  under  these  circumstances, 
an  act  of  war  merely,  and  the  plain  duty  of  the  commander  or 
other  official  responsible  in  the  premises,  which  would  relieve 
him  from  civil  responsibility. 

The  importance  of  this  decision  arises  from  the  fact  that  it 
vests  in  the  commander  an  absolute  discretion  in  front  of  the 
enemy  and  in  presence  of  impending  danger — lodging  in  his 
breast  the  determination  of  the  question  whether  or  not  the 
necessity  has  arisen  justifying  the  destruction  of  private  prop- 
erty. If  it  seems  to  him  that  the  peril  is  great,  the  necessity 
imperious,  it  is  sufficient;  it  then  becomes  his  right,  may  be 
his  duty,  to  act.  Language  could  not  be  chosen  which  more 
certainly  would  place  the  whole  subject  in  the  judgment  of  the 
military  commander.  And  it  is  a  universal  rule  that  where 
the  law  gives  a  public  officer  a  discretion  whether  he  will  act 
or  not,  he  cannot  be  held  answerable  civilly  for  the  exercise  of 
that  discretion,  unless  it  can  be  shown  that  he  acted  corruptly, 
with  a  bad  heart,  and  abused  wickedly  the  confidence  thus 
reposed. 1 

Furthermore,  the  liberality  of  this  decision,  when  contrasted 
with  those  of  some  State  courts,  especially  border  States  during 
the  Qvil  War,  is  particularly  noteworthy.  The  Government  of 
the  United  States  found  it  desirable  to  concede  the  rebels  bellig- 
erent rights.  This  was  in  the  interests  of  humanity,  accorded 
with  sound  policy,  and  the  fact  furnishes  the  foundation  on 
which  rests  the  decision  of  the  Supreme  Court  in  Ford  v. 
Surgit.  To  burn  the  cotton  was  a  belligerent  right;  the 
Confederate  commander  had  those  rights;  hence,  the  burning 
was  justified. 

331 .  It  is  a  monstrous  proposition  that  after  the  war-making 
power  has  invested  an  enemy  with  belligerent  rights  the  ju- 
diciary can  strip  him  of  the  protection  with  which  those  rights 

I.  Drewy  v.  Coulton,  i  East  56,  notes;  Ela  v.  Smith,  5  Gray  (Mass.), 
p.  121 ;  Piper  v.  Pearson,  2  Gray,  p.  120;    Clarke  v.  May,  2  Gray,  p.  410. 


RESPONSIBILITY   OF    COMMANDERS.  349 

clothe  him.  Yet  that  was  the  predicament  in  which  numerous 
Confederate  officers  found  themselves  when  after  their  surren- 
der they  returned  to  districts  which  they  had  visited  during  the 
war  only  to  find  themselves  assailed  by  civil  suits  for  clearly 
justifiable  belligerent  acts.  In  many  instances  the  judges  held 
them  to  the  strict  rule  of  Mitchell  v.  Harmony,  before  referred 
to,  though  wholly  inapplicable  to  their  cases;  in  others  the 
rules  held  to  apply  were  still  more  exacting,  being,  in  fact, 
nothing  but  the  civil  law  of  trespass,  i  As  they  had  not  acted 
by  virtue  of  civil  authority,  but  in  defiance  of  it,  and  as  bellig- 
erents, they  could  not  of  course  justify,  and  were  held  liable  in 
damages.  Could  they  have  appealed  to  the  highest  courts,  the 
opinions  previously  quoted  show  that  the  decisions  of  the  local 
tribunals  would,  in  some  cases  at  least,  have  been  reversed ;  but 
litigation  is  tedious,  expensive,  uncertain  as  to  results,  and 
frequently,  under  the  rules  of  court,  appeal  is  impossible.  It 
resulted  that  this  class  of  defendants  were,  with  few  exceptions, 
condemned  to  have  their  acts  warranted  by  the  Jaws  of  war 
tested  by  the  more  exact  rules  of  civil  conduct,  and  were  found 
wanting  accordingly. 

332.  One  branch  of  the  rule  of  military  responsibility  enun- 
ciated in  the  decision  of  the  Supreme  Court  in  the  case  of  Mitch- 
ell V.  Harmony  was,  that  the  necessity  for  seizure  must  be  so 
pressing  that  the  civil  authorities  cannot  act  in  the  premises, 
and  this  has  been  reiterated  in  the  decisions  of  numerous  courts 
since.  Its  relevancy  in  the  original  decision  mentioned  is  not 
apparent,  because  there  was  no  civil  authority  within  hundreds 
of  miles  to  which  the  military  could  appeal,  or  which  would 
have  been  under  any  obligations  to  assist  them.  It  need 
scarcely  to  be  mentioned  that  this  principle  has  no  applicability 
under  military  government.  Whatever  of  the  civil  authorities 
are  permitted  to  perform  their  functions,  it  is,  as  has  been 
pointed  out,  for  the  benefit  of  the  conquered  as  an  act  of  grace 

I.  72  N.  C,  p.  218;  64  N.  C,  p.  141  ,-'5  Coldwell,  p.  149;  3  Coldwell, 
p.  85;  4  Coldwell,  p.  205;   I  Heiskell,  44;  2  Bush,  p.  453. 


350 


MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 


on  the  part  of  the  conqueror,  and  at  most  for  his  convenience  ; 
as  to  him  they  have  no  legal  force,  nor  can  he  properly  invoke 
their  interposition  if  by  doing  so  he  recognizes  them  otherwise 
than  mere  creatures  of  his  will.  He  may  not  legally  send  his 
soldiers  or  others  associated  with  his  army  as  followers  for  trial 
before  the  local  tribunals,  which  as  to  such  persons  are  wholly 
without  jurisdiction,  i 

2.   lOoU.  S.,  p.  163;  97  U.  S.,  p.  517;  Halleck,  Chap.  32,  Sec.  6 


k 


CHAPTER  XV.  .  '. 

Military  Government — ^Tribunals. 

333.  Although  not  known  in  the  United  States  service  by 
the  name  "miUtary  commission"  prior  to  the  promulgation  of 
General  Scott's  orders  in  Mexico/  before  referred  to,  the  war 
court,  originally  based  on  the  common  law  of  war,  has  always 
been  recognized  in  the  service.  The  most  notable  instance  of  its 
being  resorted  to  during  the  Revolutionary  War  was  in  the  case 
of  Major  Andre,  which  because  of  the  prominence  of  all  there- 
with connected  was  treated  with  every  solemnity  and  dig- 
nity that  the  extraordinary  occasion  warranted.  A  "  board  " — 
"military  commission"  of  the  present  day— composed  of  six 
major-generals  and  eight  brigadier-generals  with  a  judge  advo- 
cate, duly  assembled  by  the  commander-in-chief,  and  proceeding 
not  under  the  statutory  law,  but  the  common  law  of  war,  sen- 
tenced the  unfortunate  Andre  to  suffer  death  by  hanging,  the 
penalty  of  his  rash  act — playing  the  part  of  a  spy.  The  valid- 
ity of  the  proceedings,  findings,  and  sentence  of  that  commis- 
sion has  not  been  and  cannot  successfully  be  impeached.  The 
trial  of  Joshua  Hett  Smith  was  another  conspicuous  instance 
of  the  exercise  of  like  jurisdiction  during  that  period. 

334.  The  first  and  a  memorable  instance  of  the  convening 
a  war  court  in  a  foreign  country  by  a  commander  of  United 
States  troops  occurred  in  181 8,  in  Florida,  then  a  territory  of 
Spain.  For  some  years  previous  to  that  the  Seminole  Indians 
had  made  the  western  part  of  Florida  not  only  a  place  of  perma- 
nent abode,  but  of  retreat  when  returning  from  hostile  incur- 
sions into  the  Georgia  and  Alabama  territory  within  the  United 
States.  Under  Article  5  of  the  treaty  of  1795  with  Spain,  that 
government  covenanted  to  restrain,  by  force  these  acts  of  ruth- 

I.  See  Appendix  I. 


352 


MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 


less  savage  warfare,  but  did  not  do  it.  i  It  was  claimed  by  the 
Spanish  commanders  in  that  quarter,  and  was  probably  true, 
that  the  weakness  of  their  forces  precluded  the  possibility  of 
their  redeeming  the  pledges  of  their  Government  in  this  behalf. 
To  chastise  these  hostiles,  consisting  of  Seminole  Indians, 
negroes,  and  renegade  whites,  to  protect  the  inhabitants  of  that 
exposed  frontier  and  insure  future  peace  on  the  borders,  the 
President  of  the  United  States  ordered  General  Jackson,  com- 
manding the  Division  of  the  South,  to  take  the  field.  If  neces- 
sary to  accomplish  these  objects,  the  General  was  instructed  to 
pass  the  boundary  line  between  the  territories  of  the  United 
States  and  Florida,  and  conduct  the  war  on  Spanish  soil.  This 
was  a  measure  of  necessity.  In  carrying  it  out  the  General 
necessarily  judged  of  the  means  to  be  made  use  of.  Having 
penetrated  into  the  interior  of  Florida,  in  pursuance  of  this 
plan,  and  taken  possession  of  the  Spanish  fort,  St.  Mark's,  he 
issued  at  that  point,  on  April  26,  181 8,  a  general  order  detailing 
a  "special  court,"  composed  of  a  president,  twelve  members, 
and  a  recorder,  for  the  purpose  of  investigating  certain  allega- 
tions against  civilians  captured  in  the  Indian  countr}',  to  the 
effect  that  they  were  or  had  been  stirring  up  the  savages  against 
the  people  of  the  United  States,  aiding,  abetting,  and  comfort- 
ing them,  and  supplying  them  with  means  of  carrying  on  the 
war.  The  court  was  directed  to  make  a  record  of  all  che  docu- 
ments and  testimony  in  the  several  cases,  of  their  opinion  as  to 
the  guilt  or  innocence  of  the  prisoners,  and  what  punishment,  if 
any,  should  be  inflicted.  Both  persons  tried  before  this  court 
were  British  subjects.  Both  were  found  guilty  of  the  crimes 
alleged  against  them,  with  certain  exceptions.  Arbuthnot  was 
sentenced  to  be  hanged,  and  Ambrister  to  be  shot  to  death; 
but  the  court  reconsidered  the  latter  sentence  and  changed  it 
to  fifty  lashes.  The  proceedings  and  findings  and  first  sen- 
tences were  approved ;  the  second  sentence  in  Ambrister's  case 
was  disapproved.     Both  prisoners  suffered  the  death  penalty.  2 

I.   8  Statutes  at  Large,  p.  140.      2.  American  State   Papers,   Military 
Affairs,  Vol.  i,  p.  734. 


I 


MILITARY    GOVERNMENT TRIBUNALS.  353 

This  transaction  gave  rise  to  much  controversy.  The  au- 
thority of  ^e  commanding  general  to  convene  tihe  court,  and 
particularly  his  authority  under  the  circumstances  to  carry 
into  execution  the  first  sentence  imposed  in  the  case  of  Am- 
brister,  was  questioned. 

It  is  not  perceived  how  these  objections  can  be  maintained. 
As  to  the  first,  it  is  to  be  observed  that  the  officer  convening 
the  court  was  at  the  time  engaged  in  carrying  on  war.  In  in- 
vading Spanish  territory  he  was  acting  under  and  pursuant  to 
the  orders  of  the  President.  That  Spain  might  have  deemed 
this  a  just  cause  of  war  may  be  conceded;  but  no  exception 
rightly  can  be  taken  to  the  actions  of  the  commander  in  carry- 
ing out  those  orders.  The  Government  of  the  United  States 
alone  was  responsible  for  this  invasion  of  the  soil  of  a  friendly 
powjer.  In  carrying  into  execution  the  views  of  the  Govern- 
ment the  American  general  in  effect  conquered  the  whole  of 
west  Florida.  This  was  necessary  in  order  that  citizens  of  the 
United  States  might  be  protected  against  savages  and  their 
allies  who  had  made  that  territory  a  place  of  arms,  whence 
they  issued  on  their  incursions  of  desolation,  and  to  which  they 
had  been  accustomed  to  retreat  as  a  secure  place  of  refuge  be- 
fore the  American  forces.  Although  war  had  not  formally 
been  declared  against  Spain,  a  state  of  war  against  her  depend- 
ency in  fact  existed.  The  President,  acting  within  his  consti- 
tutional powers,  had  determined  how  it  should  be  conducted,  i 
General  Jackson,  it  is  conceived,  was  empowered  to  exercise  all 
the  belligerent  rights  of  a  commander  operating  in  a  foreign 
country.  Among  these  is  the  right  to  execute  summarily  those 
persons  who  have  been  guilty  of  a  violation  of  the  laws  of  war ; 
or  if  he  deems  it  advisable,  to  convene  a  war  court  for  the  ti  ial 
of  such  cases.  This  authority  the  General  exercised.  The 
"special  court"  for  the  trial  of  Arbuthnot  and  Ambrister  was 
a  war  court,  such  as  would  now  be  known  as  a  military  com- 
mission. The  General  did  not  find  his  authority  to  convene  it 
in  the  statutory  law,  but  in  the  laws  of  war. 

I.   2  Black,  p.  670. 
—23— 


\ 


354  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

As  to  the  second  objection :  Premising  that  the  command- 
ing general  had  authority  summarily, to  execute  persons  who. 
were  guilty,  on  the  theatre  of  war,  of  the  crimes  which  Arbuth- 
not  and  Ambrister  had  perpetrated;  that  the  "special  court" 
was  asked  for  its  opinion  only  both  as  to  guilt  and  adequate 
punishment.  General  Jackson  maintained  that  this  "opinion" 
could  not  divest  him  of  his  original  authority  to  proceed  sum- 
marily, which  in  effect  he  did  by  directing  that  Ambrister  be 
executed.  Grant  the  premises,  and  the  conclusion  followsj] 
Has,  then,  a  military  commander,  conducting  a  campaign  in  ' 
enemy  country,  authority,  under  the  laws  of  war  and  without 
the  interposition  of  a  court,  summarily  to  punish  those  who, 
making  peaceable  foreign  territory  a  point  of  support,  send  forth 
Indians  and  more  savage  negroes  to  make  war  upon  peaceable 
citizens  of  th€  United  States?  Such  acts  are  those  of  free- 
booters, and  the  actors,  when  apprehended,  can  expect  no 
quarter.  Arbuthnot  and  Ambrister  were  caught  on  foreign 
soil,  red-handed  from  their  nefarious  work.  It  is  submitted 
that  the  American  general  had  the  power  summarily  to  exe- 
cute them.  It  should  be  cautiously  exercised,  but  this  consid- 
eiation  does  not  impair  the  power  itself.  The  law  of  April  lo, 
1806,  by  rendering  the  interposition  of  a  court-martial  neces- 
sary in  the  case  of  spies,  to  that  extent  only  limited  a  previously 
existing  plenary  power.  1  Nor  is  it  believed  that  either  the  old 
or  the  existing  statute  has  any  application  to  savages,  their 
aiders  or  abettors.  2  Be  that  as  it  may,  no  statute  existed  at 
the  time  General  Jackson  exercised  this  authority  which  im- 
paired his  powers  under  the  laws  of  war,  except  as  to  spies, 
when  he  was  operating  in  enemy  country.  ;3t  is  believed, 
therefore,  that  in  directing  the  execution  of  Ambrister  he  did 
not  transcend  chose  powers.  3 

335.  The  action  of  General  Scott  in  Mexico,  and  r^i  var-ous 
c  )mmanders  in  distiiccs  recovered  from  rebels  during  the  Civi' 
War,  in  appointing  military  commissions,  was  but  an  exercise 

I.  (Section  2)  Vol.  2,  p.  371,  Statutes  at  Large.  2.  Sec.  1343,  R.  S, 
3.   American  Instructions,  Sec.  4,  clauses  2  and  4. 


MILITARY    GOVERNMENT — TRIBUNALS.  355 

of  authority  in  enemy  conntry  similar  to  that  of  which  Gen- 
eral Jackson's  conduct  furnishes  an  illustration.  Thac  the  last 
meuLioned  exercise  of  authority  was  accompanied  by  incidents 
which,  aside  from  the  merits  of  the  case,  rendered  it  a  subject 
of  acrimonious  political  discussion,  indulged  in  by  those  who 
were  secure  from  the  terrorizing  circumstances  which  gave  rise 
to  the  measures  adopted,  in  no  wise  affects  the  principles 
involved. 

336.  The  rule  that  in  the  absence  of  statutes  the  customs  of 
war  are  to  govern  where  they  are  applicable,  is  clearly  stated 
in  the  opinion  of  the  Supreme  Court  in  the  case  of  Martin  v. 
Mott.  1  Commenting  on  the  fact  that  the  act  of  February  28, 
1795,2  authorizing  the  President  to  call  forth  militia  in  certain 
exigencies, did  not  render  obligatory  for  their  trial  when  in  ser- 
vice those  articles  of  war  for  the  Government  of  the  United 
States  Army  that  related  to  courts-martial,  it  was  remarked  by 
Justice  Story  that  if  resort  was  to  be  had  to  those  articles  in  the 
court-martial  of  militiamen,  it  could  only  be  to  guide  the  dis- 
cretion of  the  ofhcer  ordering  the  court,  and  not  as  a  matter  of 
positive  institution.  And  if  it  be  asked  in  what  manner  militia; 
courts-martial  are  to  be  appointed,  in  the  absence  of  provisions 
of  law  dii ectly  bearing  on  the  subject,  the  answer  is,  according, 
to  the  general  usage  of  the  military  service,  or  w^hat  may  not 
unfitly  be  called  the  customary  military  law.  It  is  that  law  by 
which  courts-martial,  when  duly  organized,  are  bound  to  exe- 
cute their  duties,  and  regulate  their  mode  of  proceeding  in  the 
absence  of  positive  enact  men  cs.  Upon  any  other  principle 
courts-martial  would  be  left  without  any  adequate  means  to  ex- 
ercise the  authority  confided  to  them,  for  there  could  scarcely 
be  f  1  amed  a  positive  code  to  provide  for  the  infinite  variety  of 
incidents  applicable  to  them.  Of  questions  not  depending^ 
upon  the  construction  of  statutes,  but  upon  unwritten  military 
law  or  usage,  military  officers,  from  their  training  and  experi- 


I.   12  Howard,  pp.  36-7       2     i  Statutes  at  Large,  p.  424. 


356  MILITARY   GOVERNMENT   AND    MARTIAL   LAW, 

ence  in  the  service,  are  more  competent  judges  than  common- 
law  courts.  1 

337.  The  commander  who  appoints  military  commissions 
does  so  in  every  case  under  a  responsibility  to  his  own  govern- 
ment. He  may  be  held  answerable  in  certain  cases  likewise  to 
those  whom  he  sends  before  such  tribunals  in  cases  giving  rise 
to  transitory  actions.  It  is  true  that  members  of  an  invading 
army  are,  as  respects  the  conquered  people,  subject  to  the  laws 
of  war,  and  are  responsible  only  to  their  own  government  and 
the  tribunals  by  which  those  laws  aie  administered.  2  But,  as 
befoie  pointed  out,  it  is  not  doubted  that  transitory  actions 
accruing  to  others  than  the  conquered  are  not  necessarily  de- 
feated by  the  fact  that  the  cause  which  originated  them  arose 
under  militaiy  government. 

338.  Members  of  commissions  or  other  militaiy  government 
tribunals  are  not  civilly  liable  (if  the  convening  older  was  au- 
thoiized  either  by  statute  or  the  laws  of  war),  if  the  person  and 
subject-matter  rightfully  be  wiihin  iheir  jurisdiction  and  the 
sentence  or  decree  one  which  under  the  same  laws  is  aucliorized. 
It  is  true  that  such  tribunals  do  not  exercise  any  portion  of  the 
judicial  power  of  the  United  Staces.  But  it  does  not  follow  that 
the  authority  exercised  by  them  is  not  in  its  nature  judicial. 
There  are  many  other  courts  exercising  authority  under  Federal 
laws  which  form  no  part  of  the  Federal  judiciary.  Referring 
to  the  judges  of  the  superior  courts  of  the  Territory  of  Florida, 
the  Supreme  Court  of  the  United  States  remarked:  "They 
hold  their  offices  for  four  years ;  these  courts  then  are  not  con- 
stitutional courts  in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  general  Government  can  be  deposited. 
They  are  incapable  of  receiving  it.  They  are  legislative  courts 
created  in  virtue  of  the  general  right  of  sovereignty  which  ex- 
ists in  the  Government."  3  Yet  such  courts  exercise  judicial 
authority.     They  are  as  much  judicial  tribunals  as  any  in  the 

I.  116  U.  S.,  p.  178.  2.  100  U.  S.,  p.  166;  97  U.  S.,  pp.  60-63;  Ameri- 
can Instructions,  Sec.  2,  clause  17.     3.   i  Peters,  p.  546. 


MILITARY   GOVERNMENT — TRIBUNALS.  357 

land.  Similarly  the  authority  exercised  by  military  tribunals 
under  military  government  is  judicial  in  the  nature,  though  not 
in  the  sense  in  which  judicial  power  is  granted  to  the  courts  of 
the  United  States.  It  is  a  special  authority  involving  discre- 
tion to  examine,  to  decide,  and  to  sentence,  i 

339.  Military  commissions  may  be  appointed  either  under 
provisions  of  law  in  certain  instances,  2  or  under  that  clause  of 
the  Constitution  vesting  the  power  of  commander-in-chief  in  the 
President,  who  may  exeicise  it  either  directly  or  through  subor- 
dinate commanders.  3  Now  it  is  a  principle  that  no  one,  even 
though  commanded,  is  bound  to  do  that  which  is  unlawful. 
This  applies  to  soldiers  as  well  as  to  others.  4  The  soldier, 
however,  who  assumes  to  question  the  order  of  his  commander 
does  so  at  his  peril.  This  rule  lies  at  the  foundation  of  military 
discipline.  It  leads  to  unquestioned  obedience,  without  which 
the  military  system  could  not  exist,  the  army  become  a  rabble 
dangerous  to  society  in  proportion  to  its  numbers. 

340.  An  order  convening  a  military  commission  or  other 
tribunal  which  does  not  expressly  show  on  its  face  or  in  the 
body  thereof  its  own  illegality,  members  of  the  army  would  be 
bound  to  obey,  and  such  an  order  would  be  a  protection  to 
them.  5  A  military  person  is  justified  by  an  order  from  the 
commander  within  the  scope  of  his  authority.  If  the  superior 
has  secretly  abused  his  power,  he,  and  not  the  subordinate  who 
executed  the  order,  is  answerable.  6  It  is  no  affair  of  the  subor- 
dinate that  the  superior  has  acted  from  unworthy  motives. 
And  when  legally  convened  the  members  would  in  no  instance 
be  liable  civilly  if  jurisdiction  of  the  cause  and  authority  ex- 
isted for  passing  the  sentence,  unless  malice  or  corruption  be 
proved,  j  The  English  case  of  Scott  v.  Stanfield  goes  beyond 
this.     A  judge  of  a  county  court  was  sued  for  slander ;  plea  of 

I.  I  Wallace,  p.  253.  2.  Act  March  3,  1863,  Chap.  75,  Sec.  30;  July 
2,  1864,  Chap.  215,  Sec.  i ;  Acts  March  2,  July  19,  1867.  3.  Art.  2,  Sec. 
2,  cl.  I,  Constitution.  4.  See  2d  and  21st  Articles  of  War.  5.  3  Coldwell 
(Tenn.),  p.  85;  i  Abbott,  p.  212  (Scott's  Digest,  p.  428).  6.  i  Curtis  (C. 
C),  p.  306;  7  Howard,  p.  t. 


358  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

language  used  in  his  capacity  of  judge;  replication  that  the 
words  were  spoken  falsely  and  maliciously  and  without  probable 
■cause;  defendant  demurred  and  the  Court  of  Exchequer  held 
the  demurrer  well  taken.  The  chief  baron  said :  ' '  The  question 
arises  for  the  first  time,  perhaps,  with  reference  to  a  county 
•court  judge,  but  a  series  of  decisions,  uniformly  to  the  same 
effect,  extending  from  the  time  of  Lord  Coke  to  the  present 
establish  the  general  proposition  chat  no  action  will  lie  against 
a  judge  for  any  acts  done  or  words  spoken  in  his  judicial  capac- 
ity in  a  court  of  justice.  This  doctrine  has  been  applied  not 
only  to  the  superior  courts,  but  to  the  court  of  a  coroner,  and 
to  a  court-martial,  which  is  not  a  court  of  record.  It  is  essential 
to  all  courts  that  the  judges  who  are  appointed  to  administer 
tthe  law  should  be  permitted  to  administer  it  under  the  pro- 
tection of  the  law,  independently  and  freely,  without  favor 
and  without  fear.  This  provision  of  the  law  is  not  for  the 
benefit  of  the  judges,  but  the  public." 

If  jurisdiction  be  rightly  had  of  the  person  and  the  subject- 
matter  and  the  court  come  to  an  erroneous  conclusion,  although 
the  person  prejudiced  thereby  would  by  reason  of  this  error  be 
entitled  to  have  the  sentence  or  judgment  set  aside,  and  to  be 
restored  to  his  former  rights,  yet  the  members  of  the  court  are 
not  liable  in  damages,  as  they  would  be  if  the  court  had  pro- 
iieeded  without  jurisdiction. 

There  is  nothing  new  in  the  principle  which  protects  mem- 
l)ers  of  military  commissions,  acting  within  the  sphere  of  their 
authority,  from  prosecution  for  mere  errors  of  judgment.  It 
has  been  recognized  by  the  English  comts  for  many  years  as 
•applicable  to  naval  officers  making  captures  at  sea.  Naval 
forces  ought  not  to  make  capture  of  anything  not  lawful  prize ; 
but  if  they  do,  and  the  captured  property  be  restored  to  the 
owner  b}^  the  prize  court,  the  captors  are  not  liable  to  suit  at 
common  law  for  the  trespass.  The  prize  courts  alone  have 
jurisdiction  for  the  redress  of  such  wrongs.  This  was  decided 
as  early  as  1781  in  Le  Caux  v.  Eden.  1     The  opinion  of  Buller, 

I.   2  Douglass,  p.  594. 


MILITARY    GOVERNMENT — TRIBUNALS.  359 

J.,  in  this  case  reviews  all  the  authorities  and  precedents,  and 
Lord  Mansfield  gave  his  assent  to  all  it  contained.  Subse- 
quently Lord  Mansfield  himself  delivered  an  opinion  upon  the 
same  question,  in  which  he  asserted  the  same  doctrine  with  re- 
newed emphasis,  i  The  authoiiiy  of  these  cases  has  never  been 
doubted.  2  "Military  forces,"  said  the  Supreme  Court,  'act 
in  the  field  according  to  the  laws  of  war,  upon  appearances, 
not  upon  testimony;  they  occupy  on  land  the  same  position 
chat  naval  forces  do  at  sea."  3 

341 .  The  jurisdiction  of  military  commissions,  as  to  persons, 
extends  to  all  within  territory  under  military  government. 
The  principle  of  exterritoriality,  which  absolves  foreign  min- 
isters from  responsibility  before  local  tribunals,  has  there  no  ap- 
plication. 4  This  follows  from  the  nature  of  the  occupation. 
The  country  is  held  by  right  of  conquest,  under  which  circum- 
stances the  laws  of  war  give  the  commander  or  his  government 
the  absolute  right  to  prescribe  the  terms  upon  which  all  per- 
sons whomsoever  shall  either  go  from  or  encer  the  conquered 
district.  5 

342.  Military  tribunals,  convened  under  the  laws  of  war  in 
territory  subject  to  military  government,  may,  at  the  pleasure 
of  the  convening  authority,  be  given  cognizance  of  all  causes 
not  brought  within  the  jurisdiction  of  a  particular  tribunal  by 
some  statute  of  the  conquering  State.6  The  name  by  which 
the  tribunals  may  be  designated  cannot  affect  their  juiisdiction. 
The  trial  of  causes  concerning  inhabitants  of  the  conquered  dis- 
trict befoie  the  local  tribunals  is  matter  wholly  of  comity  or 
convenience,  not  obligatory  on  the  conqueror.  Should  he  per- 
mit it,  this  fact  does  not  deprive  him  of  the  right  to  recur  at  will 
to  the  sterner  rules  of  conquest.     Subject  to  the  statutory  lim- 

I.  Linds  V.  Rodney,  note  to  Le  Caux  v.  Eden,  p.  612.  2.  92  U.  S.,  p 
197.  3.  Ibid.,  p.  196.  4.  Halleck,  Chap.  9,  Sec.  12;  American  Instruc- 
tions, Sec.  5,  clause  2;  92  U.  S.,  p.  520;  9  How.,  p.  615.  5.  See  authori- 
ties last  cited;  2  Wallace,  p.  275.  6.  22  Wallace,  p.  297;  20  Wallace,  p. 
387;  97  U.  S.,  p.  509;  20  Howard,  p.  J  78;  Act  March  3,  1863,  Chap. 
75;  Scott's  Autobiography,   pp.    541,  575. 


300 


MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 


kations  just  mentioned,  he  has  full  auchoricy  co  have  all  cases, 
civil  or  criminal,  aflfecting  all  persons,  arising  in  the  conquered 
district,  determined  before  tribunals  convened  by  his  authority. 
And  so  if  criminals  escaped  from  districts  beyond  are  found 
within  the  jurisdiction  of  military  governmeni,  their  cases,  if 
proper  for  the  adjudication  of  the  military  court,  may  be  tried 
there.  The  military  commander  will  not  permit  territory 
subdued  by  his  arms  to  be  made  a  place  of  refuge  for  escaped 
criminals. 

This  auchoiity  is  co-extensive  with  the  demands  of  society, 
the  business  relations  of  the  subjugated  inhabitants,  and  the 
necessity  for  efficient  military  control.  Whether  the  ofifences 
be  violations  of  the  laws  of  war,  or  crimes  punishable  by  the 
ordinary  laws  of  civilized  nations,  or  civil  causes  between  party 
and  party  in  the  district,  the  jurisdiction  of  military  courts  con- 
vened by  authority  of  the  commander  is  complete,  to  be  in- 
voked at  the  commander's  discretion. 

343.  During  the  war  in  South  Africa  recently  the  British 
authorities  established  martial  law  over  their  own  rebellious 
subjects  in  Cape  Colony  and  Natal  and  over  the  Orange  Free 
State  and  South  African  Republic  when  these  gradually  were 
occupied.  Within  Cape  Colony  and  other  districts  similarly 
situated,  and  the  hostile  inhabitants  of  which  were  desig- 
nated rebels,  the  civil  courts  were  used  on  proper  occasions; 
courts-martial  tried  those  who  belonged  to  the  military  estab- 
lishment and  were  subject  to  the  Army  Act;  while  military 
courts,  which  corresponded  to  military  commissions  in  the 
American  service,  took  cognizance  of  ofifences  under  the  laws 
of  war  of  chose  who  were  not  subject  to  the  Army  Act.  Under 
the  government  of  military  occupation  there  were  but  two 
courts — the  court-martial  and  the  military  court,  the  jurisdic- 
tion of  each  being  the  same  as  that  mentioned  above. ^ 

I.  Papers  relating  to  martial  law  in  South  Africa,  presented  to  Parlia 
ment  by  command  of  His  Majesty,  London,  1903;  Vol.  i,  p.  54  (Army 
Order  No    i,  November  19,  1900). 


CHAPTER  XVI. 

When  Military  Government  Ceases. 

344.  Such  being  the  nature,  the  scope,  and  incidents  of  mil- 
itary government,  the  question  as  to  when  it  ceases  becomes 
important.  And  as  this  affects  all  concerned,  conquerors  and 
conquered  alike,  it  is  necessary  that  it  be  certainly  determined. 

345.  The  time  when  military  government  is  discontinued, 
as  well  as  the  attending  incidents  thereof,  depends  on  circum- 
stances. The  conqueror  may  be  expelled,  he  may  permanently 
hold  the  territory,  or  he  may  surrender  it  under  terms  em- 
bodied in  treaty  stipulations.  In  the  first  case  the  restored 
government  will,  upon  resuming  control,  instantly  re-establish 
the  former  order  of  things,  at  least  so  far  as  this  may  be  found 
practicable  amidst  warlike  operations.  The  rule  of  the  con- 
queror would  cease  directly  upon  his  expulsion,  and  the  people 
at  once  resume  their  original  relations  to  the  government  of 
their  permanent  allegiance.  Still,  when  the  conqueror  ruled, 
his  government,  though  founded  on  military  force,  was  a  de 
facto  government.  To  it  those  who  received  its  protection 
gave  their  obedience,  and  whatever  measures  were  taken  under 
its  authority  pursuant  to  the  laws  of  war,  affecting  the  people 
in  either  their  rights  of  person  or  property,  should  receive  the 
sanction  of  the  old  and  now  rehabilitated  government.  1 

346.  Should  the  conqueror  permanently  acquire  the  coun- 
try, military  rule  would  of  necessity  be  maintained  until  such 
time  as  the  civil  could  be  established  upon  principles  which 
comported  with  the  interests  and  inclinations  of  the  dominant 
power.  When  war  ceases  the  laws  of  war  no  longer  govern,  for 
the  same  reasons  that  they  did  before — namely,  that  a  state  of 
war  has  its  own  laws ;  and  now  as  peace  has  returned,  the  laws  of 

I.  4  Wheaton,  p.  253;  92  U.  S.,  p.  193;  Bluntschli,  I.,  Sees.  199,  210. 

361 


362  MILITARY    GOVEUNMENT    AND    MARTIAL    LAW. 

peace  should  prevail;  yet  it  may  be  necessary  to  maintain  the 
laws  of  war  in  operation  after  active  resistance  in  the  field  has 
ceased,  as  a  means  of  protecting  life  and  property,  building  up 
society,  and  restoring  civil  government.  During  this  period  of 
transition  authority  wielded  by  the  military  may  differ  but 
little  from  that  exercised  during  war  itself.  The  measures 
taken  are  adapted  to  the  occasion.  Disorder  is  abroad  in  the 
land ;  the  bad  elements  of  society  are  to  be  held  in  check,  and 
well-regulated  government  brought  out  of  that  chaotic  state  of 
affairs  which  follows  almost  invariably  in  the  wake  of  a  violent 
change  of  rulers.  Amidst  such  surroundings,  those  in  power 
must  act  promptly  and  decisively,  for  order  must  be  maintained. 
If  they  were  not  permitted  to  do  this,  anarchy  would  soon  run 
riot.  Everywhere  government  of  some  kind  is  a  necessity;  if 
the  civil  cannot  rule,  the  military  must  be  maintained;  and 
the  situation  of  a  conquered  province  until  regularly  incorpo- 
rated into  the  subjugating  State  and  given  the  benefits  of  its 
laws  is  one  demanding  in  a  peculiar  manner  the  prompt  action 
vigilant  care,  and  powerful  arm  of  military  control.  As  was 
said  by  Lord  Hale:  "In  matters  civil  for  which  there  is  no 
remedy  by  the  common  law,the  military  jurisdiction  continues 
as  well  after  the  war  as  during  the  time  of  it."  1 

347.  The  condition  of  affairs  here  described  is  that  which 
in  the  language  of  the  Supreme  Court  is  characterized  as  "a 
state  of  war,"  as  distinguished  from  one  of  active  hostilities.  2 
And  so  when  referring  to  California  immediately  subsequent  to 
the  treaty  of  peace  with  Mexico,  and  before  that  State  was  ad- 
mitted into  the  Union,  Mr.  Buchanan,  Secretary  of  State,  said: 
"By  the  conclusion  of  the  treaty  of  peace  the  military  govern- 
ment has  ceased  to  derive  its  authority  from  the  laws  of  war. 
But  the  termination  of  the  war  left  an  existing  government,  a 
government  de  facto  in  full  operation,  and  this  will  continue 
with  the  presumed  consent  of  the  people  until  Congress  shall 
provide  for  them   a  territorial  government.     The  great  law 

I.  Army  of  the  Deccan,  2  Knapp's  Rep.,  pp.  149-51.  2.  92  U.  S.,. 
P-  193- 


.  WHEN    MILITARY   GOVERNMENT   CEASES.  363 

of  necessity  justifies  this  conclusion.  The  consenc  of  rhe  people 
i.  irresistibly  inferred  from  die  fact  ihat  nc  civilized  community 
could  possibly  desiie  co  abiogate  an  existing  government,  when 
the  alternative  presented  would  be  to  place  themselves  in  a 
state  of  anarchy  beyond  the  protection  of  all  laws  and  reduce 
them  to  the  unhappy  necessity  of  submitting  to  the  dominion 
of  che  strongest." 

348.  The  question  as  to  when  military  government  in  Cali- 
fornia terminated  afterwards  came  up  for  discussion  before  the 
Supreme  Court  of  the  United  States,  i  The  court  remarked  that 
this  government  had  its  origin  in  the  lawful  exercise  of  a  bellig- 
erent right  over  a  conquered  territory.  It  had  been  instituted 
during  the  war  by  the  command  of  the  President  of  the  United 
Scates.  Ic  was  the  government  when  the  Territory  was  ceded 
as  a  conquest,  and  it  did  not  cease,  as  a  matter  of  course,  or  as 
a  necessary  consequence  of  che  restoration  of  peace.  The 
President  might  have  dissolved  it  by  withdrawing  the  army 
and  navy  officers  who  administered  it,  but  he  did  not  do  so. 
Congress  could  have  put  an  end  co  it,  but  that  was  noc  done. 
The  right  inference  from  the  inaction  of  both  was  that  it  was 
meant  to  be  continued  until  it  was  legislatively  changed.  No 
presumption  of  a  contrary  intention  could  be  made.  Whatever 
may  have  been  the  causes  of  delay,  it  was  to  be  presumed  that 
the  delay  was  consistent  with  the  true  policy  of  the  Govern- 
ment ;  and  the  more  so,  as  it  was  continued  until  the  people  of 
the  Territory  met  in  convention  to  form  a  State  government, 
which  was  subsequently  recognized  by  Congress  under  its 
power  to  admit  new  States  into  the  Union.  The  court  con- 
cluded, therefore,  that  che  so-called  civil  but  really  military  gov- 
ernment of  California,  organized  as  it  was  as  a  right  of  con 
quest,  did  not  cease  or  become'  defunct  in  consequence  of  the 
signature  of  the  treaty  of  peace  with  Mexico  or  from  its  ratifi- 
cation; and  that  it  was  continued  over  a  ceded  conquest  with- 
out any  violation  of  the  Constitution  or  laws  of  the  United 
States. 


I.   16  Howard,  p.  190. 


364  MILITARY    GOVERNMENT    AND   MARTIAL    LAW, 

349.  The  war  tariff,  imposed  on  iraporLS  into  that  Territory, 
was  continued  until  the  military  governor  received  notification 
of  the  ratification  of  the  treaty  of  peace.     He  then,  August  7, 

1848,  discontinued  it  and  substituted  in  its  place  the  general 
taiiff  laws  of  the  United  States,  although  not  until  March  3, 

1849,  was  the  act  of  Congress  passed  exccnding  those  laws  to 
California,  and  not  until  November  15,  1849,  did  the  collector 
for  the  port  of  San  Francisco,  appointed  thereunder,  enter  upon 
the  performance  of  his  duties.  In  face,  the  military  govern- 
ments in  California  and  New  Mexico,  both  of  which  Tei  ritories 
were  ceded  to  the  United  States,  continued  until  September  9, 

1850,  when  the  former  was  admitted  as  a  State  and  the  latter 
oiganized  undei  a  territorial  government  pursuant  to  act  of 
Congress.  In  Leitensdorfer  v.  Webb,  1  it  was  said  of  the  judi- 
cial system  established  in  New  Mexico  by  the  military  governor, 
that  it  remained  with  functions  unimpaired  after  the  return  of 
peace,  until  modified  either  by  Congressional  legislation  di- 
rectly or  by  that  of  the  territorial  government  in  the  exercise  of 
powers  delegated  by  Congress. 

Referring  to  this  subject,  Halleck  says:  "There  can  be  no 
doubt  that  when  war  ceases  the  inhabitants  of  the  ceded  con- 
quered territory  cease  to  be  governed  by  the  code  of  war.  Al- 
though the  government  of  military  occupation  may  continue, 
the  rules  of  its  authority  are  essentially  changed.  It  no  longer 
administers  the  laws  of  war,  but  only  those  of  peace.  The 
governed  are  no  longer  subject  to  the  severity  of  Khe  military 
code,  but  are  remitted  to  their  rights,  privileges,  and  immuni- 
ties under  the  code  civil.  Hence  any  laws,  rules,  or  regulations 
introduced  by  the  government  of  military  occupation  during 
the  war  which  infringe  upon  the  civil  rights  of  the  inhabitants 
necessarily  cease  with  the  war  in  which  they  had  their  origin 
and  from  which  they  derived  their  force."  2 

If  the  distinguished  publicist  meant  here  to  abridge  the  ab- 
solute right  of  the  conqueror  to  institute  over  teiritory  he  has 
permanently  won  by  the  sword  such  government  as  he  sees  fit, 

I.  20  Howard,  p.  177.     2.  Chap.  33,  Sec  i8. 


WHEN    MILITARY    GOVERNMENT    CEASES.  365 

unless  by  treaty  stipulation  he  has  pledged  his  faith  to  a  differ- 
ent course,  the  history  of  the  world  will  not  sustain  the  asser- 
tion. A  subjugated  people  must  abide  by  the  will  of  those 
who  have  reduced  them  to  submission.  Policy,  the  promptings 
of  humanity,  or  perhaps  measures  of  necessity,  determine  the 
conqueior's  conduct  towards  them.  That  of  right  they  enjoy 
the  privileges  and  immunities  which  were  theirs  under  the 
former  but  now  displaced  government  cannot  be  maintahied, 
unless  the  conqueroi  has  conceded  this.  The  course  pursued 
by  the  Government  of  the  United  States  towards  the  provinces 
wrested  from  Mexico  would,  if  considered  alone,  perhaps  war- 
rant the  assertions  of  the  author  quoted.  That,  however, 
would  be  entirely  too  narrow  a  view  to  take  of  the  subject.  It 
was  the  policy  of  the  United  States  to  win  over  those  inhabit- 
ing the  subjugated  distiicts  in  ever}'  possible  manner.  They 
were  comparatively  few  in  number,  and  while  their  conduct 
had  been  signalized  by  some  conspicuous  acts  of  peifidy,  they 
were  not  actuated  by  a  formidable  spirit  of  resistance,  and  kind- 
ness towaid  them  seemed  both  safe  and  politic.  Repressive 
measures  of  a  severe  character  were  not  found  to  be  generally 
necessaiy  undei  such  circumstances,  and  haste  was  made  after 
the  war  to  restore  the  people  to  all  their  ancient  civil  rights 
which  were  found  to  be  compatible  with  the  institutions  of  the 
government  of  their  new  and  permanent  allegiance. 

350.  Without  recalling  instances  fiom  history  to  establish 
the  proposition,  almost  axiomatic,  that  a  conquered  people  re- 
tain only  those  rights  which  accord  with  the  policy  of  the 
conqueror  to  concede,  very  recent  times  furnish  two  con- 
spicuous illustrations  of  its  truthfulness.  They  are  the  sup- 
pi  ession  of  the  Rebellion  in  the  United  States  in  1865,  and  the 
conquest  of  Alsace-Lorraine  in  1870-71.  The  vigor  of  the 
military  rule  established  in  the  latter  instance  and  the  remod- 
eling of  ancient  institutions,  that  thereby  might  permanently 
be  secured  to  Germany  what  her  arms  had  won,  do  but  evince 
the  earnestness  of  purpose  with  which  these  measures  were 
adopted,  and  emphasize  the  severe  natuie  of  the  laws  of  con- 


I 


366  MILITARY   GOVERNMENT    AND   MARTIAL    LAW. 

quest.  Dissertations  on  the  abstract  lights  of  the  conquered 
would  have  little  availed  the  people  of  these  provinces.*  The 
government,  even  the  municipal  laws  so  far  as  deemed  desira- 
ble, was  recast  in  the  iron  mould  of  their  traditional,  warlike 
enemy,  now  become  their  masters.  And  yet  who  will  assert 
that  all  this  was  not  necessary  if  the  subjugated  territory  was 
to  remain  to  the  conquerors? 

351.  It  has  been  the  policy  of  the  United  States  to  give 
the  conquered — whom  it  has  also  been  its  policy  to  incorporate 
into  the  Union — civil  government  as  speedily  as  possible  and 
in  as  great  measure  as  the  cucumstances  warranted.  It  is  a 
fact  chat  in  evevy  instance  the  tei  ritories  involved  at  one  time 
were  dominated  by  Spain,  and  theii  civilization  and  civil 
polity  had  the  peculiar  stamp  of  that  monarchy,  where  the 
Church  was  the  most  powerful  element  in  the  State. 

In  New  Mexico,  in  1846,  a  civil  government  was  organized 
almost  as  soon  as  the  army  took  possession;  in  California  the 
military  government  was  of  longer  duiacion;  in  Cuba,  Poito 
Rico,  and  the  Philippine  Archipelago  military  governments 
were  maintained  uncil  it  was  deemed  that  they  wisely  could 
be  replaced  by  the  civil.  The  only  real  difficulty  was  in  New 
Mexico  and  the  Philippines,  and  due  to  the  same  cause-^ 
namely,  the  intense  hatred  of  the  natives  to  the  dominant 
power  of  the  United  States,  prompting  them  to  indulge  their 
natural  taste  for  rebellion. 

352.  With  regard  to  the  course  pursued  by  the  United 
States  authorities  in  1865,  and  subsequently  towards  citizens 
of  States  in  which  rebellion  had  recently  been  suppressed,  it  is 
to  be  remarked  that  when  the  Civil  War  ended  military  govern- 
ment was  continued  over  the  rebel  territory  with  a  suspension 
of  the  privilege  of  the  writ  of  habeas  corpus  until  the  civil  au- 
thority of  the  Republic  could  be  fully  restored.  An  entire  po- 
litical and  civil  restitution  was  not  completed  until  the  civil 
tribunals  of  the  Government  could  exercise  their  authority 
peacefully  within  the  limits  of  each  State  and  the  functions  of 
that  Government  be  fully  discharged.     This  required,  by  the 


WHEN    MILITARY    GOVERNMENT    CEASES.  367 

free  system  of  the  United  States,  a  loyal  cooperation  of  the 
people  who  exercised  political  power  within  each  State,  since 
they  must  hold  many  of  the  offices  and  compose  the  juries  for 
the  trial  of  all  offences.  It  was  also  necessary  that  the  State 
governments  should  be  in  active  operation  in  conformity  with 
and  subordination  to  the  Constitution  of  the  United  States, 
not  only  for  the  administration  of  the  internal  affairs  of  each 
State,  but  to  enable  the  people  of  the  State  to  have  their  share 
in  the  administration  of  the  affairs  of  the  Republic.  Until 
these  results  were  reached,  the  regions  of  country  then  recently 
in  rebellion,  with  their  inhabitants,  were  held  under  the  forcible 
or  military  rule  of  the  Republic  so  far  as  was  necessary,  though 
it  was  exercised  to  a  great  extent  by  civil  officers  and  civil 
methods.  1 

353.  It  was  judicially  determined  that  the  Civil  War  did 
not  begin  or  terminate  at  the  same  time  in  all  the  insurrec- 
tionary States.  2  Its  commencement  in  certain  States  was 
referred  to  the  President's  proclamation  of  blockade  em- 
bracing them,  dated  April  19,  1861,  and  as  to  others  his  second 
blockade  proclamation  embracing  them,  dated  April  27,  1861 ; 
while  its  termination  as  to  certain  States  was  referred  to  the 
proclamation  of  April  2,  1866,  declaring  that  the  war  had  closed 
in  those  States;  and  as  to  Texas,  to  the  proclamation  of  20th 
August,  1866,  declaring  it  had  closed  in  that  State  also. 

354.  The  last  rebel  army  surrendered  in  May,  1865.  Thus  a 
year  elapsed  after  all  resistance  in  the  field  had  ceased  before  the 
President  announced  that  the  war  had  terminated  as  to  any 
portion  of  the  conquered  territory,  which  during  this  time  was 
occupied  and  in  effect  governed  by  the  national  forces.  The 
status  of  affairs  existing  during  this  time  was  well  described  by 
the  chief  justice  in  delivering  the  opinion  of  the  Supreme  Court 
in  the  case  of  Lamar,  v.  Browne.  Active  hostilities  in  Georgia 
terminated  about  April,  1865.  In  August  of  that  year  some 
cotton    stored  at  Thomasville  in  that  State  was  seized  by  the 


I.   VVheaton,  Dana's 'note,  p. -32..     2.    12  Wallace,  p.  700;   15  Wallace, 
P-  177- 


368  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

United  States  military  officers  and  turned  over  by  them  to  the 
Treasury  Department.  In  the  action  (trover)  brought  to  re- 
cover the  value  of  the  property,  the  position  was  taken  by 
plaintiff  that  as  armed  resistance  had  long  since  ceased,  the 
cotton  at  the  time  it  was  taken  possession  of  was  not  liable 
to  hostile  seizure.  "It  is  true,"  said  the  chief  justice,  "as 
claimed,  that  when  the  seizure  was  made  active  hostilities  in 
Georgia  had  entirely  ceased.  The  last  organized  army  of  the 
Rebellion  east  of  the  Mississippi  had  suriendered  almost  two 
months  before,  and  a  very  large  portion  of  the  national  forces 
had  been  disbanded.  The  blockade  had  been  raised,  and  trade 
and  commercial  intercourse  in  that  part  of  the  insurgent  ter- 
ritory again  authorized ;  but  still,  in  fact,  a  state  of  war  existed,"  \ 
and  therefore  the  military  forces  were  clearly  acting  within  the 
general  scope  of  their  powers  in  taking  possession  of  property 
used  to  aid  the  Rebellion.  2 

355.  The  experience  of  the  United  States  Government, 
therefore,  but  adds  to  the  evidence  derivable  almost  universally 
from  the  history  of  other  nations,  that  military  government 
ceases  at  the  pleasure  of  him  who  instituted  it  upon  such  con- 
ditions as  he  elects  to  impose,  and  that  its  termination  is  not 
in  point  of  time  coincident,  either  necessarily  or  generally,  with 
the  cessation  of  hostilities  between  the  contending  belligerents. 

356.  Of  course,  if  the  government  of  military  occupation 
be  expelled,  it  ceases  with  that  fact.  This  was  the  case  with 
those  established  by  the  French  marshals  in  Spain  from  1808 
to  181 2.  The  case  of  permanent  conquest  has  been  considered 
in  preceding  sections  of  this  chapter.  If  the  territory  be  sur- 
rendered in  pursuance  of  treaty  stipulations,  their  terms  will 
decide  the  matter.  This  subject  has  had  various  illus  crations 
since  1898.  In  Cuba,  the  military  government  only  ceased 
when  it  was  deemed  by  the  United  States  that  a  satisfactory 
organization  had  been  given  the  Cuban  State.  In  Porto 
Rico,  a  government  provided  by  act  of  Congress  superseded 

I.  92  U.  S.,  p.  193.     2.  I  Knapp,  P.  C,  p.  316. 


WHEN    MILITARY   GOVERNMENT    CEASES.  369 

that  of  military  occupation.  In  the  Philippines,  a  civil  gov- 
ernment, organized  by  the  Executive  under  authority  of  Con- 
gress, succeeded  the  military.  In  South  Africa,  British  military 
rule  ceased  over  the  annexed  republics  when  a  satisfactory 
condition  of  affairs  looking  to  civil  rule  was  established  there. 


— 24 — 


a. 


PART  II. 

MARTIAL   LAW. 


CHAPTER  XVll. 
Martial  Law  Distinguished  from  Military  Law. 

357.  Martial  law  is  that  rule  which  is  established  when  civil 
authority  in  the  community  is  made  subordinate  to  military, 
either  in  repelling  invasion  or  when  the  ordinary  administra- 
tion of  the  laws  fail  to  secure  the  proper  objects  of  government. 

358.  It  is  at  once  both  a  domestic  and  ordinarily  an  un- 
written law.  It  is  exercised  over  districts  of  that  country 
only  whose  military  authorities  enforce  it,  and  the  limits  pre- 
scribed for  that  exercise  are  not  often  the  subject  of  statu- 
tory regulation.  When  armies  operate  in  enemy  territory, 
'the  enforcement  of  corresponding  authority  is,  as  we  have 
seen,  correctly  designated  Military  Government. 

359.  Martial  law  has  its  foundation  in  reason.  It  is  but 
a  development  of  the  principles  of  the  common  law,  1  which 
latter,  however,  contemplating  as  it  does  the  maintenance  of 
order  and  the  preservation  of  society  by  unaided  civil  au- 
thority, or,  at  most,  such  authority  aided  by  strictly  subor- 
dinate military  forces,  is  not  suited  to  the  more  trying  and 
turbulent  times  of  invasion,  rebellion,  or  other  occasion  of 
overpowering  social  disorder. 

When  martial  law  is  invoked  in  face  of  invasion  or  rebel- 
lion that  rises  to  proportions  of  belligerency,  it  is  a  war  power 

I.   Hare's  American  Constitutional  Law,  Vol.  2,  pp.  954-55- 

371 


372  MILITARY   GOVERNMENT  AND  MARTIAL  LAW. 

pure  and  simple;  when  established  as  incident  to  the  gov- 
ernor proclaiming  a  part  of  the  State  to  be  in  insurrection  or 
rebellion,  it  carries  many  military  features  growing  out  of  the 
fact  that  the  condition  of  afifairs  in  the  community  is  greatly 
assimilated  to  that  of  war;  when  brought  into  existence  be- 
cause of  a  local  reign  of  lawlessness  and  violence  which  has 
dethroned  or  paralyzed  the  civil  administration,  it  may  be 
regarded  as  an  extension  and  development  of  the  police  power. 
Its  characteristics  at  any  one  time  may  be  a  combination  of 
these. 

360.  The  term  is  sometimes,  though  erroneously,  used  as 
synonymous  with  military  law.  While  martial  law,  how- 
ever, usually  is  unwritten,  the  military  law  of  the  land  is  found 
in  the  statute-books  and  the  customs  of  the  service. 

361.  It  is  from  England  that  the  United  States  derived 
both  of  these  terms,  as  it  has  the  common  law,  and  the  funda- 
mental principes  of  its  jurisprudence.  In  the  former  country 
the  term  "martial  law"  has,  in  the  progress  of  time,  changed  its 
signification.  From  earliest  periods  of  which  we  have  authen- 
tic record  the  sovereigns  of  England,  when  engaged  in  wars, 
found  regulations  for  the  government  of  their  troops  necessary. 
These  regulations  were  what  the  kings  chose  to  make  them. 
They  constituted  the  "martial  law"  of  those  early  days,  and" 
were  properly  applicable  only  to  soldiers  while  embodied  as 
such,  and  to  retainers  of  the  camp;  just  as  in  the  United 
States  the  militia  of  the  several  States,  when  called  into  the 
service  of  the  general  Government,  are  subject  to  the  rules 
and  articles  of  war,  but  are  not  so  at  other  times. 

362.  During  this  period  of  her  history  England  had  no 
standing  army.  Every  freeman  was  a  soldier.  Each  warlike 
occasion  brought  the  knights  and  their  retainers  to  the  field, 
60,000  of  the  former  being  bound  by  free-hold  tenures  to  re- 
spond for  forty  days  each  year  to  the  sovereign's  call  to  arms. 
It  was  of  the  rules  for  the  governme-nt  of  these  forces  that  Hale 
in  his  history  of  the  common  law  remarks:  "The  kings  of 
the  realm,  preparatory  to  an  actual  war,  were  used  to  impose 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      373 

rules  and  orders  for  the  due  order  of  their  soldiers,  together 
with  certain  penalties  on  the  offenders,  and  this  was  called 
martial  law.  But  touching  martial  law,  it  is  to  be  observed 
that  in  truth  and  reality  it  is  not  a  law,  but  something  in- 
dulged rather  than  allowed  as  law ;  the  necessity  of  good  order 
and  discipline  in  an  army  is  that  onty  which  gives  these  laws  a 
countenance." 

363.  The  term  "martial  law, "  as  here  used,  was  not  inappro- 
priate. It  meant  the  rule  of  the  military  as  distinguished 
from  that  of  the  civil  authorities.  It  signified  the  discipline 
of  the  camp,  where  the  laws  of  peace  were  inadequate  either  10 
maintain  order  among  the  soldiers  themselves,  or  to  protect 
the  community  against  their  rude  violence.  It  was  applicable 
only  to  those  in  martial  array  or  their  attendants. 

364.  To  martial  law,  as  here  restricted  by  the  common-law 
historian,  objection  could  not  fairly  be  urged;  it  was  a  ne- 
cessity, without  which  neither  invasion  could  be  driven  back 
nor  insurrection  suppressed.  But  years  wrought  the  before- 
mentioned  change  in  the  signification  of  the  term.  The  lines 
drawn  between  classes  of  the  people  in  England  were  at  once 
marked  and  profound.  The  rise,  progress,  and  finally,  to  a 
considerable  extent,  the  obliteration  of  these  deeply  implanted 
distinctions  form  one  of  the  most  interesting  and  instructive 
chapcers  in  the  history  of  that  nation.  The  serfs  and  villeins 
often  rose  in  rebellion,  not  by  preconcerted  movement,  but 
urged  on  by  a  common  and  intense  hatred  of  the  classes  above 
them.  There  was  no  civil  power  in  the  land  capable  of  sup- 
pressing these  uprisings.  As  just  mentioned,  the  sovereign 
had  not  at  command  the  strong  right  arm  of  a  regularly  organ- 
ized military  force.  On  such  occasions  the  need  of  a  regular 
army  was  severely  felt.  The  large  number  of  the  turbulent 
and  discontented  rendered  it  impracticable  for  the  ordinary 
officers  of  government  to  overthrow  and  bring  to  justice  open, 
defiant  disturbers  of  the  peace. 

365.  In  these  emergencies  resort  was  had  to  what  was 
termed  martial  law  to  supplement  the  inadequate  powers  of 


374  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

civil  government.  But  it  now  no  longer  meant,  as  in  former 
periods,  those  rules  adopted  for  the  control  of  the  army  when 
actually  brought  into  the  field;  martial  law  was  now  being 
applied  to  a  different  portion  of  the  community,  and  in  this 
new  sense  the  term  was  simply  descriptive  of  that  mode  of 
procedure  resorted  to  by  the  sovereign  during  the  suppression 
of  a  rebellion  too  formidable  for  the  civil  authorities  to  put 
down.  1 

366.  Whenever  there  was  any  insurrection  or  public  dis- 
order, the  crown  employed  martial  law  in  this  new  sense,  and 
it  was  exercised  not  only  over  soldiers,  but  the  whole  people. 
Anyone  might  be  punished  under  it  as  a  rebel  or  an  aider  or 
abettor  of  rebellion  whom  the  provost  marshal  or  lieutenant 
of  a  county  or  their  deputies  pleased  to  suspect.  Lord  Bacon 
said  that  the  trial  at  common  law  granted  to  Essex  and  his 
fellow-conspirators  was  a  favor,  for  that  the  case  would  have 
borne  and  required  the  severity  of  martial  law.  2 

367.  But  it  was  the  acts  of  Charles  I.  which  at  once  carried 
the  exercise  of  this  undefined  power  to  its  limit  and  led  to  its 
restriction  by  Parliament.  The  want  of  respect  for  the  laws  of 
the  land,  arising  doubtless  from  the  suffering  and  attendant 
discontent  of  the  people  which  characterized  the  reign  of  that 
fated  monarch,  seemingly  rendered  resort  by  him  to  stringent 
measures  of  repression  necessary.  Accordingly  commissions 
were  issued  to  certain  trusted  servants  of  the  crown,  empower- 
ing them  to  inflict  the  death  penalty  upon  soldiers  or  other  dis- 
solute persons  who  should  commit  robberies  and  similar  crimes 
according  to  the  summary  practices  of  martial  law.  Times, 
measures,  and  men,  however,  had  changed,  and  whatever  the 
people  might  have  been  willing  to  put  up  with  from  the  iron 
hand  of  a  Tudor,  they  were  not  prepared  quietly  to  acquiesce 
in  this  stretch  of  royal  authority  when  attempted  by  a  Stuart 
in  the  person  of  the  insincere,  vacillating,  and  tyrannical 
Charles.     The  Petition  of  Right  followed  quickly,  by  which  at 

I.  See  Opinions  .\ttomey-General,  23,  p.  123.  2.  Hume,  History 
of  England,  Vol.  5,  Appendix  III.,  p.  402. 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      375 

one  blow  was  struck  down  then,  and  apparently  for  all  time, 
every  pretense  of  authority  for  invoking  martial  law  within 
the  realm  in  time  of  peace. 

It  was  here  declared,  in  what  has  been  truly  designated  one 
of  the  landmarks  of  English  liberty,  that  no  man  ought  to  be 
judged  to  death  but  by  the  laws  established  either  by  custom 
or  acts  of  Parliament.  The  circumstance  was  then  narrated  of 
the  appointment  of  the  commissions  under  the  royal  seal  to 
proceed  against  such  soldiers,  mariners,  and  dissolute  persons 
joining  them  as  should  commit  murder,  robbery,  felony,  mu- 
tiny, or  other  outrage  or  misdemeanor  whatsoever,  by  such 
summary  course  and  order  as  was  agreeable  to  martial  law 
and  was  used  in  armies  in  time  of  war.  This  was  declared  to 
be  illegal,  and  it  was  prayed  that  these  commissions  might 
be  revoked  and  annulled,  and  that  thereafter  none  of  like 
nature  might  be  issued.  By  the  favorable  action  of  the  King, 
the  Petition  of  Right  became  (1627)  the  law  of  the  land;  and 
subsequently  the  exercise  of  martial  law,  accoiding  to  the 
technical  meaning  of  that  term  in  time  of  peace  within  the 
realm,  has  been  interdicted.  1 

368.  "What,"  said  a  profound  lawyer  and  jurist, 2  "is 
martial  law?  It  is  the  will  of  a  military  commander  operating 
without  any  restraint,  save  his  judgment,  upon  the  lives,  upon 
che  property,  upon  the  entire  social  and  individual  condition 
of  all  over  whom  this  law  extends.  But,  under  the  Constitu- 
tion of  the  United  States,  over  whom  does  this  law  extend  ? 

"In  time  of  war  a  military  commander,  whether  he  be 
the  commander-in-chief  or  one  of  his  subordinates,  must  pos- 
sess and  exercise  powers  both  over  the  persons  and  property 
of  citizens  which  do  not  exist  in  time  of  peace.  But  he  pos- 
sesses and  exercises,  such  powers,  not  in  spite  of  the  Consti- 
tution and  laws  of  the  United  States,  or  in  derogation  from 
their  authority,  but  in  virtue  thereof  and  in  strict  subordina- 

I.  Manual,  pp.  5,  6,  787.  2.  Ex-Associate  Justice  of  the  Supreme 
Court  of  the  United  States,  R.  B.  Ciu-tis. 


376  MILITARY    GOVERNMENT   AND   MARTIAL    LAW, 

tion  thereto.  The  general  who  moves  his  army  over  private 
property  in  the  course  of  his  operations  in  the  field,  or  who 
impresses  into  the  public  service  means  of  transportation  or 
subsistence  to  enable  him  to  act  against  the  enemy,  or  who 
seizes  persons  within  his  lines  as  spies,  or  destroys  supplies 
in  immediate  danger  of  falling  into  the  hands  of  the  enemy, 
uses  authority  unknown  to  the  Constitution  and  laws  of  the 
United  vStates  in  times  of  peace,  but  not  unknown  to  the  Con- 
stitution and  those  laws  in  time  of  war.  The  power  to  declare 
war  includes  the  power  to  use  the  customary  and  necessary 
means  effectively  to  carry  it  on.  As  Congress  may  institute 
a  state  of  war,  it  may  legislate  into  existence  and  place  under 
executive  control  the  means  for  its  prosecution.  And  in  time 
of  war,  without  any  special  legislation,  not  the  commander- 
in-chief  only,  but  every  commander  of  an  expedition  or  of 
a  military  post  is  lawfully  empowered  by  the  Constitution  and 
laws  of  the  United  States  to  do  whatever  is  necessary  and  is 
sanctioned  by  the  laws  of  war  to  accomplish  the  lawful  objects 
of  his  command. 

"But  it  is  obvious  that  this  implied  authority  must  find 
early  limit  somewhere.  If  it  were  admitted  that  the  command- 
ing general  in  the  field  might  do  whatever,  in  his  discretion, 
might  be  necessary  to  subdue  the  enemy,  he  could  levy  contri- 
butions to  pay  his  soldiers;  he  could  force  conscripts  into  his 
service;  he  could  drive  out  of  the  entire  community  all  per- 
sons not  desirous  to  aid  him ;  in  short,  he  could  be  the  absolute 
master  of  the  country  for  the  time  being.  No  one  has  ever 
supposed,  no  one  will  now  undertake  to  maintain,  that  the 
commander-in-chief,  in  time  of  war,  has  any  such  lawful  au- 
thority as  this.  What,  then,  is  his  authority  over  the  persons 
and  property  of  citizens?  I  answer  that  over  all  persons 
enlisted  in  his  forces  he  has  military  power  and  command; 
that  over  all  persons  and  property  within  the  sphere  of  his 
actual  operations  in  the  field  he  may  lawfully  exercise  such 
constraint  and  control  as  the  successful  prosecution  of  his 
particular  military  enterpiise   may,  in  his  honest  judgment, 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      377 

absolutely  require;  and  upon  such  persons  as  have  commiuied 
offenses  against  any  article  of  war  he  may,  through  appro- 
priate military  tribunals,  inflict  the  punishment  prescribed  by 
law.     And  there  his  lawful  authority  ends. 

"The  military  power  over  citizens  and  their  property  is  a 
power  to  act,  not  a  power  to  prescribe  rules  for  future  action. 
It  springs  from  present  pressing  emergencies,  and  is  limited 
by  them.  It  cannot  assume  the  functions  of  the  statesman  or 
legislator,  and  make  provisions  for  future  or  distant  arrange- 
ments by  which  persons  and  property  may  be  made  sub- 
servient to  military  uses.  It  is  the  physical  power  of  an  army 
in  the  field,  and  may  control  whatever  is  so  near  as  to  be 
actually  reached  by  that  force  in  order  to  remove  obstructions 
to  its  exercise. 

' '  But  when  the  military  commander  controls  the  persons  or 
property  of  citizens  who  are  beyond  the  sphere  of  his  actual 
operations  in  the  field,  when  he  makes  laws  to  govern  their  con- 
duct, he  becomes  a  legislator.  Those  laws  may  be  made  actu- 
ally operative ;  obedience  to  them  may  be  enforced  by  military 
power;  their  purpose  and  effect  may  be  solely  to  support  or 
recruit  his  armies,  or  to  weaken  the  power  of  the  enemy  with 
whom  he  is  contending.  But  he  is  a  legislator  still;  and 
whether  his  edicts  are  clothed  in  the  form  of  proclamations,  or 
of  military  orders,  by  whatever  names  they  may  be  called, 
they  are  laws.  If  he  have  the  legislative  power  conferred  on 
him  by  the  people,  it  is  well.  If  not,  he  usurps  it.  He  has  no 
more  lawful  authority  to  hold  all  the  citizens  of  the  entire 
country,  outside  of  the  sphere  of  his  actual  operations  in  the 
field,  amenable  to  his  military  edict,  than  he  has  to  hold  all 
the  property  of  the  country  subject  to  his  military  requisitions. 
He  is  not  the  military  commander  of  the  citizens  of  the  United 
States,  but  of  its  soldiers."  i 

This  was  written  at  a  tin:e  when  the  United  States  was  in  the 
midst  of  civil  war.     The  Executive  had  frequently  resorted  to 


I.  "  Executive  Power,"  published  October,  1862. 


378  MILITARY    GOVERNMENT   AND   MARTIAL    LAW. 

martial  law  where^the  unaided  civil  authorities  apparently  could 
not  overcome  the  difficulties  which  encompassed  them,  thereby 
rendering  necessary  the  prompt  action  of  military  power  in  or- 
der that  an  effective  blow  might  be  struck  at  the  machinations, 
both  open  and  secret,  of  those  who  were  aiding  and  abetting 
rebellion.  The  constitutional  principle  here  enunciated,  that 
'  'power  to  declare  war  includes  the  power  to  use  the  customary 
and  necessary  means  effectively  to  cany  it  on,"  is  that  upon 
which  rests  the  right  to  invoke  martial  law  as  a  war  measure. 
But  a  mere  statement  of  the  principle,  the  truth  of  which  is  per- 
haps denied  by  none,  is  of  little  value  in  determining  when  and 
where  martial  law  legally  may  be  enforced.  The  real  difficulty 
lies  not  in  formulating,  but  in  applying  the  principle.  The 
latter  is  the  pivotal  point  upon  which  turns  the  legality  of  the 
proclamation  of  martial  law  or  its  enforcement  without  this 
formality. 

369.  The  power  of  the  Executive  to  prosecute  a  war  pre- 
cipitated upon  the  country  carries  with  it  by  necessary  implica- 
tion the  incidental  power  to  make  use  of  the  customary  and 
necessary  means  of  carrying  it  on  successfully.  If  he  deem  the 
placing  any  district  under  martial  law'  a  proper  measure,  it  is 
difficult  logically  to  deny  him  the  right  to  do  it.  Someone 
must  judge  of  the  necessity;  the  determination  of  some  au- 
thority must  be  final.  And  where,  with  reason,  can  be  lodged 
this  discretionary  power  with  greater  safety  than  with  that 
branch  of  the  Government  to  which  is  entrusted  the  conduct 
of  the  war,  and  which  is  held  responsible  for  its  successful 
prosecution  ? 

370.  The  Southern  Confederacy  during  its  brief  existence 
had  an  extensive  martial-law  experience.  As  a  result  the  prin- 
ciples underlying  the  lawful  exercise  of  this  unusual  authority 
received  careful  examination  and  exposition  by  jurists  of  ac- 
knowledged ability.  In  a  letter  to  a  military  commander  from 
the  Confederate  Assistant  Secretary  of  War,  an  ex-associate 
justice  of  the  Supreme  Court  of  the  United  States,  it  was  re- 
marked that  the  proclamation  of  martial  law  in  a  locality  im- 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      379 

plies  that  the  district  is  the  seat  of  war  or  rebellion,  or  that  it 
has  fallen,  or  soon  might  fall,  within  the  lines  of  military  oper- 
ations or  communication.  It  implies  that  a  more  vigorous 
policy  has  become  necessary  to  preserve  the  efficiency  of  the 
army  and  to  maintain  its  discipline,  to  secure  in  all  its  fullness 
its  energy  and  vigor  for  use  againsc  the  enemy,  or  it  might  im- 
ply that  such  an  emergency  has  arisen  as  to  require  an  extra- 
ordinary application  of  the  resources  of  the  population  for 
their  defense.  The  system  of  measures  and  administration 
which  is  introduced  in  such  extraordinary  and  transitory  exi- 
gencies involving  the  public  safety  varies  according  to  circum- 
stances; the  measures  and  administration  are  occasional  and 
transient  in  their  operation  as  to  time  and  limited  as  to  local- 
ity, seldom  proceeding  from  the  supreme  power  of  the  State, 
or  affecting  the  constitution  of  the  body  politic,  not  often 
necessarily  impeding  municipal  administration.  Continuing, 
it  was  observed,  that  a  city,  the  capital  of  a  State  or  nation, 
the  depository  of  its  government  and  archives,  the  site  of  its 
workshops,  arsenals,  hospitals,  magazines,  and  munitions,  with 
an  insufficient  army  for  its  defense,  and  a  wavering  popula- 
tion beleagured  by  a  powerful  and  bitter  enemy,  who  would 
make  its  goods  a  booty  and  its  houses  a  desolation,  surely  must 
be  subject  to  conditions  as  to  government  and  police  dissimilar 
from  that  of  a  city  sheltered  against  danger  from  any  quarter. 
These  regulations  not  existing  in  ordinary  times,  but  called 
for  by  extraordinary  circumstances,  it  was  held,  would  find 
their  authority  in  the  power  of  the  Executive  to  use  the  military 
forces  of  the  nation  to  repel  invasions,  and  to  adopt  the  meas- 
ures requisite  to  employ  those  forces  with  the  utmost  advant- 
age to  that  end.  In  the  fulfilment  of  this  office  he  might  not 
make  unreasonable  or  vexatious  searches  or  seizures,  nor  un- 
duly restrain  liberty  or  take  life,  but  the  same  act  might  be 
reasonable  at  one  time  and  under  one  class  of  circumstances, 
and  vexatious  and  wrongful  under  another.  In  all  his  pro- 
ceedings he  and  his  agents  are  responsible  for  acts  not  justified 
in  the  scope  of  his  public  duty. 


380  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

"In  the  war  in  ^hich  we  are  engaged,"  observed  the  same 
official  at  another  time,  "circumstances  are  assembled  which 
have  scarcely  ever  been  seen  before  together.  The  entire  mil- 
itary population  has  been  appropriated  by  law  for  the  public 
defense,  and  before  another  year  expires  probably  all  will  be 
called  into  service.  Our  enemy  is  seeking  to  find  an  ally  in 
those  in  our  own  household  and  to  add  a  servile  to  the  horrors 
of  a  civil  war.  Civil  administration  is  everywhere  relaxed 
and  has  lost  much  of  its  energy,  and  our  entire  Confederacy  is 
like  a  city  in  a  state  of  siege,  cut  oflf  from  all  intercourse  with 
foreign  nations,  and  invaded  by  superior  force  at  every  available 
point.  Military  administration  at  such  places  as  are  within 
the  scope  of  military  operations  and  supplies  and  upon  the 
lines  of  military  communication,  in  the  very  nature  of  the  situa- 
tion, must  have  a  liberal  extent.  In  so  far  as  it  affects  citizens 
who  do  not  belong  to  the  arniy,  it  should  be  marked  with 
sobriety,  discretion,  and  deference  for  personal  rights.  No 
advantage  should  be  taken  by  the  exigencies  of  the  time  to 
inflict  any  injustice.  In  respect  to  the  city  of  Atlanta  there 
can  be  but  little  difficulty  in  proceeding  upon  the  principles 
here  laid  down.  The  object  of  the  proclamation  [of  martial 
law]  there  was  to  secure  the  safety  of  the  hospitals,  public 
stores,  railroad  communications,  the  discipline  of  the  troops 
in  transitu,  and  to  collect  deserters  and  absentees  along  rail- 
roads and  guard  against  espionage  on  the  part  of  the  enemy. 
The  provost  guard  was  placed  there  to  enable  the  officer  to  ac- 
compHsh  these  objects,  and  the  regulations  to  be  adopted  must 
be  suitable  to  these  ends.  In  accomphshing  them  some  reg- 
ulation of  that  unlimited  freedom  of  intercourse  and  traffic 
which  exists  in  time  of  peace  has  been  found  to  be  proper, 
and  some  expropriation  of  private  property  for  public  use 
essential;  but  it  has  been  the  anxious  desire  of  this  department 
that  no  substantial  invasion  of  the  great  principles  of  consti- 
tutional   liberty    should    occur;  that    no   injustice    should    be 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      38 1 

suffered,  and  that  as  little  of  personal  inconvenience  endured 
as  circumstances  would  permit."  1 

371.  These  views  regarding  the  enforcement  of  martial  law 
as  an  incident  to  the  prosecution  of  hostilities  are  particularly 
valuable.  They  are  not  the  vagaries  of  the  theorist,  but  de- 
liberately formed  opinions,  given  under  official  responsibility 
when  circumstances  rendered  martial  law  a  practical,  however 
unwelcome,  necessity.  No  people  ever  were  more  jealous  of 
their  constitutional  rights  than  were  those  of  the  Southern 
Confederacy.  But,  as  here  evidenced,  there  arose  occasions 
when,  even  with  th^m,  it  was  acknowledged  that  the  rights  of 
the  few  must  sometimes  give  way  to  the  preservation  of  the 
whole,  and  that  military  power  properly  may  be  invoked 
when  civil  authority  cannot  meet  the  ends  of  government. 

372.  It  is  worthy  of  special  notice  that  the  city  of  Atlanta,  at 
the  time  referred  to,  when  martial  law  there  was  declared  and 
here  justified,  was  not  the  immediate  theatre  of  military  opera- 
tions, or  immediately  adjacent  thereto,  although,  being  a  great 
center  of  military  communication,  it  was  an  important  stra- 
tegic point.  The  evidence  of  this  distinguished  judge,  whose 
predilections  were  all  in  favor  of  the  supremacy  of  the  civil 
power,  is  therefore  contradictory  of  the  principle  insisted  upon 
by  some,  that  to  justify  martial  law  the  district  affected  must 
actually  be  resounding  with  the  clash  of  arms. 

In  the  nature  of  things  the  limitation  of  martial  law  to  such 
districts  cannot  be  correct.  As  will  more  fully  appear  here- 
after, necessity  alone  justifies  resort  to  this  extreme  measure. 
It  is  the  test  by  which  those  responsible  for  its  enforcement 
must  be  judged.  Look  at  the  matter  which  way  we  will,  it 
comes  to  that  at  last.  While  this  necessity  will  almost  inev- 
itably arise  in  districts  occupied  by  contending  armies,  it  by  no 
means  follows  that  it  will  be  confined  to  such  districts. 

373.  When  instituted  because  of  civil  commotion,  martial 
law  is  confined  to  the  disturbed  district.     But  in  this  case. 


I.  October  27,  1862.     (R.  R.  S.,  I.,  Vol.  16,  Part  II.,  p.  979  ct  seq.) 


382  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

equally  as  when  a  war  measure,  the  true  test  of  justification 
being  necessity,  it  follows  logically  that  martial  law  is  legal, 
whenever  the  civil  authorities,  acting  either  alone  or  with  the 
assistance  of  a  subordinate  military  force,  cannot  properly  per- 
form the  functions  of  government.  Not  to  resort  to  this  law 
under  such  circumstances  would  be  criminal,  as  without  it 
life  and  property  would  be  placed  at  the  mercy  of  the  lawless. 

374.  If  it  be  asked  what  security  exists  against  abuse 
of  this  summary  military  authority,  the  answer,  as  before 
pointed  out,  is  in  the  amenability  of  those  exercising  it  not 
only  to  military  superiors,  but  also  before  the  civil  tribunals 
of  the  country  when  peace  and  order  again  resume  their  sway. 
This,  it  will  be  noticed,  is  carefully  laid  down  by  the  authority 
just  quoted. 

375.  Martial  law  imports  a  departure  from  the  usual  or- 
der of  things.  It  does  not  mean  the  administration  of  the  ordi- 
nary law  in  a  summary  way,  but  it  is  a  totally  different  law. 
It  has  been  used  by  all  governments  and  in  all  countries,  and 
is  as  necessary  to  the  sovereignty  of  a  State  as  the  power  to  de- 
clare and  make  war.  The  right  to  declare,  apply,  and  enforce 
martial  law  is  one  of  the  sovereign  powers,  and  resides  in  the 

Note. — Among  the  manuscripts  of  the  late  Dr.  Francis  Lieber  was 
found,  after  his  death,  one  on  the  subject  of  martial  law,  written  in  the 
form  of  a  note  to  the  fifth  and  sixth  articles  of  "The  Instructions  for  the 
Government  of  the  Armies  of  the  United  States  in  the  Field"  (G.  O.  100, 
1863).  After  distinguishing  between  martial  law  in  hostile  countries 
and  domestic  martial  law,  he  says: 

"As  to  martial  law  at  home,  which  may  become  necessary  in  cases 
of  foreign  invasion,  as  well  as  in  cases  of  domestic  troubles,  it  has  full 
sway  in  the  immediate  neighborhood  of  actual  hostilities.  The  military 
power  may  demolish  or  seize  property  or  may  arrest  persons,  if  indispens- 
able for  the  support  of  the  army  or  the  attaining  of  the  miUtary  objects  in 
view.  This  arises  out  of  the  immediate  and  direct  physical  necessity,  as 
much  so  as  the  law  of  trespass  is  inoperative  against  those  who  forcibly 
enter  a  house  in  case  of  a  conflagration.  This  operation  of  martial  law 
is  not  exclusive  or  exceptional.  Any  immediate  physical  danger,  and 
paramount  necessity  arising  from  it,  dispenses  with  the  forms  of  law 
most  salutary  in  a  state  of  peace. 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      383 

governing  authority  of  the  State,  and  it  depends  upon  the  Con- 
stitution of  the  State  whether  restrictions  and  rules  are  to  be 
legislatively  adopted  for  its  application,  or  whether  it  is  to 
be  exercised  by  the  Executive  and  on  his  initiative  according 
to  the  exigencies  which  call  it  into  existence.  But  even  when 
left  unrestrained  by  constitutional  or  statutory  law,  like  the 
power  of  a  civil  court  to  punish  contempts,  it  must  be  exercised 
with  due  moderation  and  justice ;  and  as  paramount  necessity 
alone  can  call  it  into  existence,  so  must  its  exercise  be  limited 
to  such  times  and  places  as  this  necessity  may  require;  and, 
moreover,  it  must  governed  by  the  rules  of  general  public  law, 
as  applied  to  a  state  of  war;  It,  therefore,  cannot  be  despot- 
ically or  arbitrarily  exercised  any  more  than  any  other  bel- 
ligerent right  can  be  so  exercised.  1 

"The  subject  of  the  greatest  difficulty  connected  with  martial  law  is  its 
existence  in  a  country  distant  from  the  scene  of  military  action  or  in  dis- 
tricts which  are  not  in  a  state  of  insurrection.  How  far  may  it  extend  in 
point  of  geographical  limits?  How  far  may  it  extend  in  intrinsic  action? 
Can  it  be  dispensed  with  under  all  circumstances?  How  can  people  de- 
voted to  liberty  limit  its  action  so  that  it  may  not  become  a  means  of 
military  despotism? 

"It  cannot  be  dispensed  with  under  all  circumstances,  and  if  there 
were  a  law  prohibiting  it,  it  would  break  through  the  law  in  cases  of 
direct  and  absolute  necessity.  The  salvation  of  a  country  is  like  the 
saving  of  an  individual  life.     It  is  paramount  to  all  else.     *     *     * 

"It  has  been  denied  that  the  Government  has  any  right  to  proclaim 
martial  law  or  to  act  according  to  its  principles  in  districts  distant  from 
the  field  of  action,  or  to  declare  it  in  larger  districts  than  either  cities  or 
counties.  This  is  fallacious.  The  only  justification  of  martial  law  is  the 
danger  to  which  the  country  is  exposed,  and  as  far  as  the  positive  danger 
extends,  so  far  extends  its  justification."  (Ives'  Military  Law,  p.  13, 
note.) 

Regarding  the  last  point  here  touched  upon,  Whiting  (War  Powers, 
loth  edition,  p.  169)  says:  "Nothing  in  the  Constitution  or  laws  can  define 
the  possible  extent  of  any  military  danger.  Nothing,  therefore,  in  either 
of  them  can  fix  or  define  the  extent  of  power  necessary  to  meet  the  emer- 
gency. Hence  it  is  worse  than  idle  to  attempt  to  lay  down  rules  defining 
what  must  be  the  territorial  limits  of  martial  law." 

I.  Halleck,  Chap.  17,  Sec.  25;  see  also  O'Brien,  American  Military 
Law,  p.  28. 


384  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

Reference  here  is  made  to  martial  law  considered  solely 
as  a  war  measure,  hence  the  reference  to  the  exercise  of  bel- 
ligerent rights.  Martial  law  to  meet  civil  commotion  was 
not  adverted  to.  The  laws  of  different  countries  with  respect 
to  this  last  power  vary.  In  France,  and  in  most  other  States 
of  continental  Europe,  three  conditions  of  society  are  care- 
fully provided  for:  the  state  of  peace,  where  all  are  gov- 
erned by  civil  or  military  authority,  depending  upon  the  class 
to  which  they  belong;  the  state  of  war,  where  the  law  and  au- 
thority depend  upon  tb  "  particular  condition  of  the  place  and 
circumstances  of  the  case,  the  civil  authority  sometimes  acting 
in  concert  with,  and  sometimes  in  subordination  to,  the  mili- 
tary; the  state  of  siege,  where  the  civil  law  is  suspended  for  the 
time  being,  or  at  least  is  made  subordinate  to  the  military,  and 
the  place  is  under  martial  law,  or  under  the  authority  of  the 
military  power.  The  latter  may  result  from  the  presence  of  a 
foreign  enemy,  or  by  reason  of  a  domestic  insurrection,  and  the 
rule  applies  to  a  district  of  country  as  well  as  to  a  fortress  or 
city.  The  state  of  siege  corresponds  to  martial  law  in  England 
and  the  United  States.^  There  is,  however,  this  important  dis- 
tinction :  What  lawfully  may  be  done  under  a  state  of  siege  i 
fixed  by  statute,  while  martial  law — subject  to  individual  re- 
sponsibility for  its  enforcement,  as  before  mentioned — is  a 
rule  unto  itself,  its  existence  and  rules  of  action  being  seldom 
the  subject  of  legislative  enactment. 

376.  The  histories  of  both  England  and  the  United  vStates 
afford  many  illustrations  of  resort  being  had  with  both  legis- 
lative and  judicial  sanction  to  martial  law  when  the  civil  au- 
thorities were  unable  to  preserve  order,  secure  the  liberty  of 
the  subject,  and  protect  him  in  his  life  and  property.  "For," 
as  observed  by  an  English  writer,-  "no  judicial  decisions  can 
alter  the  fact  that  the  application  of  military  government,  un- 
der the  law  of  necessity,  commonly  called  martial  law,  must 
always  exist,  although  it  is  difficult  to  exactly  define  it  further 

I.  Appendix  V.     2.  Pratt's  Military  Law,  p.  214. 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.       385 

than  as  being  the  authority  exercised  by  a  military  com- 
mander over  all  persons,  whether  civil  or  military,  within  the 
precincts  of  his  command  in  places  where  there  is  either  no 
civil  judicature  or  this  has  ceased  to  exist." 

377.  Regarded  as  a  belligerenc  right,  to  be  exercised  under 
the  customs  of  war  in  repelling  invasion,  martial  law  is  that 
military  rule  and  authority  which  exists  in  relation  to  persons 
and  things  under  and  within  the  scope  of  active  military 
operations,  and  which  extinguishes  or  suspends  civil  rights 
and  the  remedies  foimded  upon  them,  for  the  time  being,  so 
far  as  it  may  appear  to  be  necessary  in  order  to  the  full  ac- 
complishment of  the  purposes  of  the  war — the  party  who  ex- 
ercises it  being  liable  in  an  action  for  any  abuse  of  the  authority 
thus  conferred.  It  is  the  instituting  over  our  own  people  the 
government  of  force,  extending  to  persons  and  property,  ac- 
cording to  the  laws  and  usages  of  war,  to  the  exclusion  of  the 
municipal  government,  in  all  respects  where  the  latter  would 
impair  the  efficiency  of  military  rule  and  military  action. 
Founded  upon  the  necessities  of  war,  and  limited  by  them,  its 
existence  does  not  necessarily  suspend  all  civil  proceedings. 
Contracts  may  still  be  made  and  be  valid  so  long  as  they  do 
not  interfere  with  or  affect  military  operations.  The  civil 
courts  are  not  necessarily  closed,  for  all  actions  relating  merely 
to  the  private  affairs  of  individuals  may  still  be  entertained 
without  detriment  to  the  public  service;  but  it  closes  the  con- 
sideration there  of  any  action,  suit,  or  proceeding  in  which 
the  civil  process  would  impair  the  efficiency  of  the  military 
force.  1 

This  describes  with  greatest  precision  the  conduct  of  affairs 
when  martial  law  was  proclaimed  in  the  British  colonies  in 
South  Africa  in  1 899.  It  was  as  a  war  measure  that  the  British 
authorities  availed  themselves  of  this  power.  The  incidents 
attending  enforcement  of  martial  law  under  such  circumstances 
are    wider    in   scope    than   when   martial  law  is  inaugurated 

1.     Professor  Parker,  North  American  Review,  October,  1861. 

— 25 — 


386  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

to  put  down  a  local  insurrection,  in  this,  at  least,  that  in 
the  latter  case  no  military  commissions  would  be  invoked, 
whereas  in  the  midst  of  war's  alarms  they  would  be  utilized 
without  hesitancy,  i 

378.  The  military  authorities  where  martial  law  is  insti- 
tuted must  in  any  case  judge  in  the  first  instance  of  its  neces- 
sity. Still,  the  power  they  wield  is  restricted  to  the  scope  of 
the  necessity  which  it  has  been  determined  exists ;  so  that  if 
an  arbitrary  f 01  ce  be  used,  having  no  connection  with  the  exi- 
gency, or  not  within  its  possible  scope,  the  party  responsible 
may  be  held  civilly  to  account  for  his  acts.  If  the  commander 
should  go  beyond  what  is  necessary,  to  commit  a  private  wrong 
disconnected  from  military  operations,  the  existence  of  mar- 
tial law  would  not  excuse  him  from  accountability  afterwards 
before  a  judicial  tribunal. 

379.  Turning  now  to  the  case  when  martial  law  is  invoked 
to  suppress  revolt  against  municipal  authority,  the  remarks 
of  the  judge-advocate  general  before  the  House  of  Commons 
committee  in  the  Ceylon  investigation  are  instructive.  He 
there  declared  that  martial  law,  properly  so  called,  is  not 
written,  but  unwritten  law;  it  arises  from  necessity  to  be 
judged  of  by  the  executive;  it  comprises  all  persons,  civil  or 
military,  and  is  to  be  executed  by  those  who  have  to  execute 
it,  and  faithfully,  with  as  much  humanity  as  the  occasion  al- 
lows, and  according  to  their  sense  and  conscience.  The  proc- 
lamation of  martial  law  is  a  notice  to  all  those  to  whom  it  is 
addressed  that  there  is  another  measure  of  law  and  another 
mode  of  proceeding  than  there  was  before,  and  when  martial 
law  is  proclaimed  there  is  no  rule  or  law  by  which  the  officers 
executing  it  are  to  be  bound.  It  is  more  extensive  than  ordi- 
nary military  law,  and  overrules  all  other  law  and  is  entirely 
arbitrary.  There  is  no  regular  practice  laid  down  in  any 
work  on  military  law  as  to  how  courts-martial  are  to  be  con- 
ducted or  powers  exercised  under  martial  law,  but,  as  a  rule, 

I.  Papers  relating  to  martial  law  in  South  Africa,  presented  to 
Parliament  by  command  of  His  Majesty,  London,  1903. 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      3^7 

he  would  say  that  it  should  approximate  as  near  as  possible 
to  the  regular  forms  and  course  of  justice  and  the  usages  of  the 
military  service.  1 

This  opinion  was  a  carefully  considered  statement  of  the 
judge-advocate  general's  view  of  the  subject  then  under  con- 
sideration. Yet  the  assertion  that  the  power  exercised  under 
martial  law  is  entirely  arbitrary  is  liable  to  mislead.  It  can- 
not be  meant  by  this  that  the  authority  there  exercised  by 
the  military  is  despotic  and  irresponsible,  nor  even  that  re- 
sponsibility is  limited  to  accountability  to  military  superiors 
alone.     And  herein  lies  the  safety  of  the  community. 

380.  It  is  true  that  some  expressions  of  military  com- 
manders and  recognized  authorities  on  the  law,  detached 
from  their  context  and  hence  in  great  degree  misapplied,  give 
color  to  the  view  that  officers  are  not  legally  responsible  for 
their  acts  under  these  circumstances;  for  instance,  the  state- 
ment of  the  Duke  of  Wellington,  that  "martial  law  is  the  will 
of  the  commander-in-chief";  of  Lord  Hale,  that  "it  was  in 
truth  and  fact  no  law  at  all,  but  something  indulged  rather 
than  law";  of  Blackstone,  that  "it  is  built  upon  no  settled 
principles,  but  is  entirely  arbitrary- in  its  decisions";  or  that 
"it  is  an  arbitrary  kind  of  law  or  rule  sometimes  established 
in  a  place  or  district  occupied  or  controlled  by  an  armed  force, 
by  which  the  civil  authority  and  the  ordinary  administration 
of  the  law  are  either  wholly  suspended  or  subjected  to  military 
power."  2 

381.  None  of  these  authorities  gives  countenance  to  the 
proposition  that  those  who  enforce  martial  law  over  our  own 
people  and  territory  are  legally  irresponsible  for  what  they  do. 
The  Duke  of  Wellington  was  speaking  of  military  government 
— the  power  of  a  conqueror  on  foreign  soil — as  illustrated  by 
his  own  experience  in  France;  while,  as  we  have  seen.  Lord 
Hale  referred  to  rules  adopted  by  the  sovereign  for  the  gov- 

I.  Finlason,  Repression  of  Riot  -and  Rebellion,  pp.  135-36,  I95- 
2.   Burrill's  Law  Dictionary. 


^88  IMILITARY    GOVERNMEXT    AND    MARTIAL    LAW. 

eminent  of  his  irregular  army  when  it  was  called  into  active 
service.  Neither  one,  therefore,  had  in  mind  martial  law  con- 
sidered as  a  domestic  fact.  And  if  Blackstone  meant  that 
for  those  who  carry  martial  law  into  effect  there  is  either  no 
amenability,  or  none  except  to  military  superiors  for  op- 
pressive use  of  power  over  the  civil  community,  not  only 
can  martial  law  have  no  place  in  the  judicial  system  of  Eng- 
land, but  it  never  would  be  tolerated  in  any  country  of  laws 
or  freedom,  nor  anywhere  except  under  a  despotism.  With 
such  a  scope  it  cannot  exist  in  the  United  States  consistently 
with  the  Constitution,  which,  for  the  time  being,  it  would 
subvert.  Neither  the  President  nor  Congress  constitutionally 
could  authorize  the  exercise  of  such  a  power,  nor  can  it  exist  by 
the  general  principles  of  the  law. 

382.  Yet  martial  law  in  Ireland  has  time  and  again  been 
established  by  act  of  Parliament;!  while  the  supreme  federal 
tribunal  of  the  United  States  has  decided  that,  under  certain 
disturbed  conditions  of  the  civil  power,  martial  law  is  per- 
Tnissible  not  only  in  the  States  of  the  Union,  but  under  the 
general  Government.  2  Nowhere,  however,  will  be  found  either 
legislative  or  judicial  sanction  of  the  doctrine  that  martial 
law  is  the  turning  loose  on  the  community  a  horde  of  irre- 
sponsible officials  wielding  a  limitless,  because  an  undefined, 
power. 

383.  The  great  problem  is  to  reconcile  the  necessities  of 
'government  with  security  to  personal  rights.  And  as  befoie 
remarked,  this,  it  is  conceived,  is  most  nearly  attained  by  up- 
holding to  the  utmost  those  upon  whom,  under  trying  circum- 
stances, is  devolved  the  duty  of  putting  in  execution  this  great 
law  of  necessity,  while  at  the  same  time  holding  them  to  a 
strict  reckoning  for  abuse  of  authority  thus  temporarily  placed 
in  their  hands. 


I.  29  Gaorge  III.,  Chap,  ii  (1799),  Irish  Parliament;  43  George 
III.,  Chap.  117  (1803);  3  and  4  William  iV.,  Chap.  4  (1833).  2.  7  How- 
ard, p.  I ;  4  Wallace,  p.  2. 


MARTIAL   LAW   DISTINGUISHED   FROM   MILITARY    LAW.      389 

The  safeguards  against  martial  law  are  not  found  in  the  de- 
nial of  its  protection,  but  in  the  amenability  of  the  President 
to  impeachment;  of  military  officers  to  the  civil  and  criminal 
laws  and  to  military  law;  in  the  frequent  change  of  public 
officers,  the  dependence  of  the  army  upon  the  pleasure  of 
Congress,  and  the  good  sense  of  the  troops.  1 

384.  Omitting  cases  that  have  occurred  during  active 
warfare,  and  therefore  as  an  incident  of  belligerency,  there 
have  been  numerous  instances  of  martial  law  having  in  terms 
been  declared  by  governors  and  military  commanders  of  high 
rank.  The  occasions  have  all  resulted  from  the  entire  back- 
down of  civil  administration  and  failure  to  perform  its  appro- 
priate functions  in  the  governmental  system.  They  are  not 
growing  less  frequent  within  the  limits  of  che  United  States, 
but  rather  the  reverse.  2  Martial  law,  to  meet  and  overcome 
domestic  violence,  appears  to  be  invoked  more  frequently 
within  those  limits  than  under  any  other  of  the  first-class 
powers.  There  must  be  some  deep-seated  reason  for  this; 
doubtless  many  reasons.  One  of  the  most  potent,  perhaps,  is 
the  elective  character  of  local  officials,  who  in  consequence  feel 
acutely  a  personal  interest  in  the  cultivation  of  friendly  terms 
with  those  in  the  community  who,  in  subordinate  capacities, 
have  much  to  do  with  popular  elections  and  who  not  infre- 
quently are  the  prime-movers  in  civil  disturbances  that  neces- 
sitate invoking  the  interposition  of  the  milicary  power.  An- 
other reason  is  the  confusion  in  the  minds  of  many  people 
leading  them  to  interpret  liberty  as  being  license;  the  safe- 
guards to  personal  rights  secured  by  the  amendments  to  the 
Constitution  as  an  immunity  to  them  in  invading  the  same 


I.  Whiting,  War  Powers,  loth  edition,  pp.  163,  170.  2.  With- 
out attempting  to  enumerate  all,  the  following  instances  are  cited: 
General  Andrew  JacksOn,  New  Orleans,  18 14;  Rhod'^  Island  Legislature, 
1842;  Commanding  General,  New  Orleans,  1866;  Governor  of  Arkansas, 
1868;  Governor  of  Tennessee,  1869;  Governor  of  Arkansas,  1874;  Gov- 
ernor of  Washington  Territory,  1886;  Governor  of  Pennsylvania,  1892: 
Governor  of  Idaho,  1892;  Governor  of  Idaho,  1899;  Governor  of  Pennsyl- 
vania, 1902;  Governor  of  Colorado,  1903-04. 


390  MILITARY   GOVERNMENT   AND    MARTIAL   LAW. 

rights  of  others.  "The  rioters  in  Chicago  at  the  Haymarket 
massacre,"  observed  the  Colorado  judge  in  dismissing  a  case 
against  militia  oificers  for  false  imprisonment,  "quoted  in 
hand-bills  declarations  of  Thomas  Jefferson  on  liberty,  and 
bespoke  the  author  of  the  Declaration  of  Independence  in 
justification  of  their  acts  of  bloodshed  and  rioting.  Liberty 
is  not  unbridled  license.  While  the  courts  must  protect  the 
personal  liberty  of  the  citizen,  liberty  in  this  sense  does  not 
mean  a  right  to  impose  upon  the  rights  of  another  citizen,  nor 
to  incite  to  breaches  of  the  peace,  rioting,  and  destruction  of 
property." 

385.  In  this  tieatise  the  following  principles  relating  to 
the  instituting  and  execution  of  martial  law  are  maintained: 

First.  That  no  government  worthy  of  the  name  will  per- 
mit itself  to  be  overturned,  the  object  for  which  it  was  in- 
stituted to  be  defeated,  by  the  tiu-bulent  element  in  its  midst, 
simply  because  the  civil  administration  fails,  whether  culpa- 
ble or  otherwise,  to  perform  the  function  prescribed  by  the 
wTitten  law;  but,  in  such  case,  it  is  the  right  and  duty  of 
government,  in  self-defense,  to  resort  to  a  higher  and  un- 
written law  to  meet  the  exigency. 

Second.  That  the  force  called  into  active  operation  in 
this  exigency  is  of  necessity  the  military  and  martial  law  is 
its  rule  of  conduct. 

Third.  That  martial  law  thus  may  be  invoked  either  by 
the  executive  or  the  law-making  power,  although  the  former 
generally  will  be  the  case. 

Fourth.  A  proclamation  establishing  martial  law,  while 
convenient  as  notifying  to  all  the  true  conditions,  is  not 
necessary;  but  the  placing  the  military  in  control,  by  proper 
authority,  carries  its  own  proclamation  that  martial  law  there 
prevails. 

Fifth.  In  the  exercise  of  this  power  the  military  may,  if 
convenient  to  all  authorities,  utilize  the  civil  administration; 
but  this  to  the  extent  only  that  the  military  may  deem  such 
course  desirable. 


MARTIAL    LAW    DISTINGUISHED    FROM    MILITARY    LAW.      39 1 

Sixth.  In  the  enforcement  of  martial  law  the  military 
may  not  wanton  with  power  and  use  it  tyrannically  or  for  the 
oppression  of  the  community;  and  should  this  be  done,  the 
perpetrators,  after  law  has  resumed  its  proper  sway,  may  be 
brought  before  the  civil  courts,  where  such  acts  may  be  in- 
quired into;  the  question  for  the  court  to  determine  in  such 
case  being  how  the  heart  stood  when  such  alleged  unlawful 
acts  were  perpetrated. 


CHAPTER  XVIII. 

Martial  Law  under  English  Jurisprudence. 

386.  Theories  regarding  martial  law,  its  nature,  the  scope 
of  authority  exercisable  thereunder,  and  the  responsibility  of 
those  enforcing  it;  what  state  of  facts  brings  into  existence 
the  necessity  which  justifies  resort  to  this  unusual  power,  as 
well  as  the  extent  of  territory  over  which  it  legally  may  be 
enforced,  will  depend  in  great  degree  upon  the  experience  of 
that  government  whose  officers  are  called  upon  to  carry  it 
into  effect,  and  whose  courts  may  pass  upon  the  legality  of 
their  acts.  These  theories  will  be  reflected  in  the  writings 
of  its  historians  and  commentaries  on  its  laws,  the  practices 
of  its  generals,  the  decisions  of  its  courts.  What  may  be  true 
regarding  one  government  and  under  one  combination  of  cir- 
cumstances may  not,  and,  except  to  a  limited  extent,  probably 
will  not,  be  true  under  another  government  and  different  sur- 
roundings. It  is  necessary  to  remember  this,  that  too  much 
weight  be  not  attached  to  authorities  who  may  have  arrived 
at  conclusions  drawn  from  facts  which  are  not  of  general 
applicability. 

387.  In  the  United  States  it  is  natural  to  turn  to  English 
precedents.  Not  only  is  the  foundation  of  the  judicial  systems 
the  same,  but  likewise  the  great  bulwarks  of  society  found  in 
the  common  law,  whereby  security  is  given  to  life,  liberty, 
and  property.  In  martial-law  experiences,  however,  the  for- 
tunes of  the  two  governments  in  many  respects  have  been 
dissimilar,  a  fact  which  has  given  rise  to  diverse  views.  In 
England  the  question  has  been  one  of  dealing  with  rebellion, 
not,  except  to  a  very  limited  extent,  in  the  island  of  Great 
Britain  itself,  but  in  Ireland  and  in  distant  colonies.     Foreign 

392 


I 


]MARTTAL    LAW    UNDER    ENGLISH    JURISPRUDENCE.  T,();^ 

invasion  or  rebellion  so  extensive  as  to  secure  to  the  rebels 
belligerent  rights  has,  happily,  since  the  days  of  Cromwell, 
never  confronted  the  British  Government.  In  the  United 
States,  on  the  other  hand,  martial  law  has  been  resorted  to 
under  all  the  circumstances  mentioned.  As  the  experience  of 
the  latter  Government  has  been  more  varied  and  extensive 
in  dealing  with  martial  law  as  a  domestic  fact  especially,  so  the 
views  entertained  by  its  authorities  may  be  expected  to  be, 
as  they  are,  more  comprehensive.  They  have  examined  the 
subject,  if  not  more  carefully,  still  with  the  aid  of  light  drawn 
from  a  wider  experience  and  the  advantage  of  having  many 
more  points  of  observation.  It  will  not,  therefore,  be  sur- 
prising if  the  conclusions  at  which  they  have  arrived  are  not 
in  all  respects  similar  to  those  drawn  by  others  differently 
situated;  but  from  the  important  fact  that  their  experience 
has  been  more  varied  as  well  as  more  extensive,  we  may  with 
some  degree  of  confidence  rely  upon  the  correctness  of  those 
conclusions. 

388.  And  first,  as  to  English  experiences.  In  1803  parts 
of  Ireland  were  in  a  state  of  rebellion.  The  civil  authorities 
could  not,  acting  either  alone  or  aided  by  a  subordinate  mili- 
tary, enforce  the  laws  of  the  land.  Resort  was  had,  therefore, 
to  more  efficacious  measures.  By  act  of  Parliament  1  passed 
to  meet  the  emergency  it  was  enacted  that  it  should  be  lawful 
for  the  lord  lieutenant  or  other  chief  governor  of  Ireland, 
from  time  to  time  during  the  continuance  of  the  rebellion, 
and  whether  the  ordinary  courts  of  justice  should  or  should 
not  be  open,  to  issue  his  orders  to  all  officers  commanding  the 
forces  to  take  the  most  vigorous  and  effectual  measures  -for 
suppressing  the  rebellion  which  should  appear  to  be  necessary 
for  the  public  safety  and  the  persons  and  property  of  loyal 
subjects;  to  panish.all  persons  acting,  aiding,  or  in  any  manner 
assisting  the  rebellion,  according  to  martial  law,  either  by 
death  or  otherwise,  as  to  them  seemed  expedient  for  the  pun- 
ishment and  suppression  of  all  rebels  in  their  districts,  and  to 

I.  43  George  III.,  Chap.  117. 


394 


MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 


arrest  and  detain  in  custody  all  persons  engaged  in  such  re- 
bellion or  suspected  thereof,  and  to  cause  all  persons  so  ar- 
rested to  be  brought  to  trial  in  a  summary  way,  by  couit- 
martial,  for  all  offences  committed  in  furtherance  of  the  re- 
bellion, whether  such  persons  were  taken  in  open  arms  against 
His  Majesty,  or  otherwise  concerned  in  the  rebellion,  or  in 
aiding  or  in  any  manner  assisting  the  same,  and  to  execute 
the  sentences  of  all  such  courts-martial,  whether  by  death  or 
otherwise.  Finally,  and  as  if  in  anticipation  that  this  par- 
liamentary declaration  of  martial  law  might  possibly  be  con- 
strued in  some  way  as  a  precedent  to  detract  from  the  com- 
mon-law power  of  the  sovereign,  it  was  further  enacted  that 
nothing  in  the  act  should  be  construed  to  take  away,  abridge, 
or  diminish  the  acknowledged  prerogative  of  the  crown  for  the 
public  safety,  to  resort  to  the  exercise  of  martial  law  against 
open  enemies  and  traitors.  Language  could  not  more  clearly 
and  forcibly  set  forth  the  full  scope  of  martial-law  power  in 
time  of  insurrection  or  rebellion. 

389.  Two  features  of  this  law  are  worthy  of  particular 
attention:  first,  the  careful  reservation  of  the  right  of  the 
crown  by  prerogative  to  resort  to  martial  law,  thus  refuting 
the  claim  sometimes  made  that  Parliament  alone  has  authority 
to  put  into  operation  this  power,  and  establishing  beyond 
question  that  the  crown  legally  could  resort  to  martial  law  in 
the  contingencies  mentioned,  where  the  expression  "open  ene- 
mies or  traitors"  would  seem,  as  in  reason  it  should,  to  provide 
against  invasion  as  well  as  rebellion;  second,  the  provision 
that  the  summary  course  of  martial  law  should  have  full  effect 
equally,  whether  the  ordinary  courts  of  justice  were  or  were 
not  open;  and  the  reason  for  this  was  as  interesting  as  the 
provision  itself  was  important — namely,  that  the  course  of  the 
common  law  would  be  taken  advantage  of  by  guilty  parties  as 
a  means  of  escape  from  the  punishment  due  to  their  crimes. 
This  is  the  more  important  from  the  fact  that  one  of  the  most 
familiar  rules  for  the  determination  of  the  necessity  which 
alone  justifies  martial  law  is  whether  or  not  courts  of  justice 


MAKTIAL   LAW    UNDER   ENGLISH    JURISPRUDENCE.  395 

in  the  district  affected  can  sit  and  perform  their  functions. 
But  the  act  cited,  while  recognizing  the  fact  that  courts  of 
justice  might  be  open  for  the  administration  of  justice,  pro- 
vided specifically  that  whether  they  were  or  were  not  made 
no  difference;  martial  law  was  to  be  strictly  enforced,  and  the 
ordinary  courts,  though  they  might  sit  undisturbed,  were  not 
to  be  permitted  to  be  made  a  cloak  to  shield  the  guilty  from 
the  legal  consequences  of  their  acts. 

390.  It  may  be  assumed  that  in  a  country  of  laws  and 
which  deserves  to  be  called  free  nothing  in  governmental  af- 
fairs rises  superior  in  dignity  and  authority  to  a  constitutional 
act  of  the  national  legislature.  This  is  pre-eminently  so  in 
the  United  Kingdom,  where  Parliament — king,  lords,  and 
commons  acting  together — is  absolute,  and  may  change  even 
the  constitution  at  will.  Yet  we  find  here  two  principles 
enunciated  by  that  supreme  power:  first,  that  the  crown  by 
virtue  of  prerogative  may  in  certain  cases  legally  enforce  martial 
law;  second,  the  fact  that  courts  of  justice  may  be  sitting  is 
not  the  infallible  criterion  by  which  the  necessity  that  justi- 
fies martial  law  is  to  be  tested — principles  which,  singularly 
enough,  receive  but  the  reluctant  assent  of  many  writers  and 
even  judges  of  that  country. 

In  this  is  discernible  the  difference  between  the  conduct  of 
a  department  or  governmental  agency  whose  duty  it  is  to  meet 
a  great  public  emergency,  and  which  proceeds,  with  every 
practicable  regard  for  the  rights  of  the  citizen,  to  the  perform- 
ance of  that  duty  in  the  most  direct  and  effective  manner,  and 
the  speculations  of  those,  replete  with  wisdom  after  the  fact, 
who  come  upon  the  stage  when  all  danger  is  passed  and  dilate 
upon  the  various  phases  of  what  may  have  been  a  governmental 
crisis,  weaving  finest  theories  regarding  what  can  and  what 
cannot  constitutionally  be  done  under  such  circumstances. 
With  entire  candor  it  may  be  said,  however,  that  the  former  is 
entitled  to  the  more  respectful  consideration.  The  govern- 
mental department,  whatever  it  be,  acts  under  a  responsibility 
with  which  those  who  criticise  its  measures  have  not  been 


39^  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

honored.  The  former  has  to  do;  the  latter,  as  a  rule,  but  to 
enjoy  the  pleasures  of  contemplation  while  indulging  their 
fancies  regaiding  what  ought  to  have  been  done. 

391.  To  the  same  effect  was  British  colonial  experience. 
In  a  case  growing  out  of  the  Jamaica  rebellion  of  1865,  in  which 
it  was  alleged  that  under  color  of  martial  law  murder  had  been 
committed,  the  colonial  judge,  who  had  been  a  witness  to  the 
terrors  of  the  servile  insurrection,  truthfully  obser-ved:  "It  is 
manifest  that  every  government  must,  in  the  interest  of  those 
under  its  care,  possess  the  power  of  resorting  to  force  in  the 
last  extremity.  The  want  of  such  a  power  would  place  the 
very  existence  of  the  State  at  the  mercy  of  organized  con- 
spiracy. The  public  safety,  therefore,  which  is  the  ultimate 
cause,  confides  to  the  supreme  authority  in  every  country  the 
power  to  declare  when  the  emergency  has  arisen.  But  martial 
law,  while  it  dispenses  with  the  forms  and  delays  which  apper- 
tain to  ordinary  criminal  jurisdiction,  does  not,  therefore,  au- 
thorize or  sanction  every  deed  assumed  to  be  done  in  its  name. 
It  stops  far  short  of  that.  For  if  it  did  not,  lawless  men,  un- 
der color  and  pretense  of  authority,  might  commit  acts  abhor- 
rent to  humanity,  and  might  gratify  malice  and  revenge, 
hatred  and  ill-will.  No  greater  error  exists  than  to  suppose 
that  the  subjecting  a  district  to  military  power  authorizes  ex- 
cess on  the  part  of  those  who  exercise  that  power.  Deeply, 
therefore,  is  it  in  the  interest  of  the  public  welfare  that  it 
should  be  understood  what  martial  law  sanctions  and  what  it 
does  not.  It  allows,  in  one  word,  everything  that  is  necessary 
towards  putting  down  resistance  to  lawful  authority.  It  re- 
quires that  the  acts  of  its  members  should  be  honest  and  bona 
fide.  And  it  further  fastens  as  a  condition  upon  its  agents  that 
their  acts  should  be  deemed  to  be  necessary  in  the  judgment  of 
moderate  and  reasonable  men.  Reason  and  common  sense 
must  approve  the  particular  act.  It  is  not  sufficient  that  the 
party  should  unaffectedly  believe  such  and  such  an  act  to 
be  called  for;  the  belief  must  be  reasonably  entertained  and 
such  as  a  person  of  ordinary  understanding  would  not  repudi- 


M.UtTIAL    LAW    UNDER   ENGLISH    JURISPRUDENCE.  397 

ate.  If  these  conditions  are  not  fulfilled,  the  act  becomes  un- 
lawful, with  all  the  consequences  attaching  to  illegality.  It 
then  takes  rank  with  those  acts  to  which  the  privilege  and  pro- 
tection of  martial  law  are  not  extended.  The  vindictive  pas- 
sions are  prohibited  as  absolutely  during  niilitarv  rule  as  in  the 
most  orderly  and  tranquil  condition  of  human  affairs.  Excess 
and  wantonness,  cruelty  and  unscrupulous  contempt  of  human 
life,  meet  with  no  sanction  from  martial  law  any  more  than 
from  ordinary  law.  No  amount  of  personal  provocation  will 
justify  or  excuse  vindictive  retaliation.  Were  it  otherwise, 
an  institution  which,  though  stern,  is  beneficial,  would  degen- 
erate into  an  instrument  of  meie  private  malice  and  revenge."  1 

These  views,  delivered  from  che  bench  and  in  the  very  pres- 
ence as  it  were  of  insurrection,  will  piesent  the  two  aspects 
under  which  martial  law  appears :  first,  a  necessity  arising 
from  particular  ciicumstances  and  justifying  what  in  good 
faith,  honestly  and  with  reasonable  discretion,  may  be  done 
under  it  to  protect  and  defend  life  and  property  and  preserve 
society;  second,  a  rule  of  law  holding  to  strict  accountability 
those  who  seek  under  cover  of  its  exercise  to  gratify  personal 
and  unworthy  ambition,  or  to  tyrannize  over  those  whom 
misfortune  for  the  time  being  has  placed  in  their  power. 

392.  This  rebellion  and  the  measures  taken  to  suppress  it 
gave  rise  to  heated  discussions  in  England  on  the  subject  of 
martial  law;  the  officers  who  had  declared  and  enforced  it 
were  subjected — but  without  ultimate  serious  legal  conse- 
quences— to  the  annoyance  of  prosecutions  in  the  mother 
country,  which  assumed  very  much  the  appearance  of  perse- 
cutions. The  home  government,  while  not  justifying  all  that 
had  been  done,  sustained  the  energetic  measures  of  its  officers, 
and  grand  juries  could  not  be  brought,  even  under  the  seemingly 
biased  instructions  of  judges,  to  bring  in  true  bills  against  them. 
One  of  the  most  notable  and  valuable  incidents  of  this  public 
agitation  was  the  delivering  an  opinion — non-judicial — on 
the  nature  and  scope  of  martial  law,  by  Mr.  Edward  James 

j     I.  Finlason,  Repression  of  Riot  and  Rebellion,  pp.  168-69. 


398  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

and  Sir  James  Fitz- James  Stephen,  called  forth  at  the  instance 
of  the  government  authorities.  This  opinion,  as  we  are  in- 
formed in  the  "History  of  the  Criminal  Law  of  England,"  i 
was  drawn  by  Mr.  Stephen,  and  it  is  worthy  of  pai  ticular  notice, 
both  on  account  of  the  learning  and  probity  of  its  author  and 
its  historical  and  legal  value. 

It  was  observed  that  "the  whole  doctrine  of  martial  law  was 
discussed  at  great  length  before  a  committee  of  the  House  of 
Commons  which  sat  in  the  year  1849  to  inquire  into  certain 
transactions  that  had  taken  place  in  Ceylon.  Sir  David  Dun- 
das,  the  judge-advocate  general,  explained  his  view  at  length, 
and  was  closely  examined  upon  it  by  Sir  Robert  Peel,  Mr.  Glad- 
stone, and  others.  The  following  answers  amongst  others 
throw  much  light  on  the  subject:  '5459.  If  a  governor  fairly 
and  fully  believes  that  the  civil  and  military  power  which  is 
with  him,  and  such  assistance  as  he  might  derive  from  the 
sound-hearted  part  of  the  Queen's  subjects,  is  not  enough  to 
save  the  life  of  the  community  and  to  suppress  disorder,  it  is 
his  duty  to  suppress  it  by  martial  law  or  any  other  means. 
5476.  (Sir  Robert  Peel)  A  wise  and  courageous  governor,  re- 
sponsible for  a  colony,  would  take  the  law  into  his  own  hands 
and  make  a  law  for  the  occasion  rather  than  submit  to  anarchy.? 
A.  I  think  that  a  wise  and  courageous  governor  would,  if  nec- 
essary, make  a  law  to  his  own  hands,  but  he  would  much  rather 
take  a  law  which  is  already  made ;  and  I  believe  that  the  law 
of  England  is  that  a  governor,  like  the  crown,  has  vested  in 
him  the  right,  where  the  necessity  arises,  of  judging  of  it  and 
being  responsible  for  his  work  afterwards,  so  to  deal  with  the 
laws  as  to  supersede  them  all  and  to  proclaim  martial  law  for 
the  safety  of  the  colony.  5477.  (In  answer  to  Mr.  Gladstone) 
I  say  he  is  responsible  just  as  I  am  responsible  for  shooting  a 
man  on  the  king's  highway  who  comes  to  rob  me.  If  I  mistake 
my  man,  and  have  not,  in  the  opinion  of  the  judge  and  jury  who 
try  me,  an  answer  to  give,  I  am  responsible.     5506.  My  notion 

I.  Vol.  I,  p.  207. 


MABTIAL    LAW   UNDER   ENGLISH    JURISPRUDENCE.  399 

is  that  martial  law  is  a  rule  of  necessity,  and  that  when  it  is 
exercised  by  men  who  are  empowered  to  do  so,  and  they  act 
honestly,  vigorously,  and  with  as  much  humanity  as  the  case 
will  permit  in  discharge  of  their  duty,  they  have  done  that 
which  every  good  citizen  is  bound  to  do.  Martial  law  has,  ac- 
cordingly, been  proclaimed  in  several  colonies — viz.,  at  the 
Cape  of  Good  Hope,  in  Ceylon,  Jamaica,  and  in  Demerara.' 

"The  views  thus  expressed  appear  to  be  substantially  cor- 
rect. According  to  them,  the  words  'martial  law,'  as  used  in 
the  expression  'proclaiming  martial  law,'  might  be  defined  as 
the  assumption  for  a  certain  time  by  the  officers  of  the  crown 
of  absolute  power  exercised  by  military  force  for  the  purpose 
of  suppressing  an  insurrection  or  resisting  an  invasion.  The 
proclamation  of  martial  law  in  this  sense  would  only  be  a 
notice  to  all  whom  it  might  concern  that  such  a  course  was 
about  to  be  taken. 

"It  is  scarcely  possible  to  distinguish  martial  law,  as  thus 
described  and  explained,  from  the  common-law  duty  which  is 
incumbent  upon  every  man,  and  especially  upon  every  magis- 
trate, to  use  any  degree  of  physical  force  that  may  be  required 
for  the  suppression  of  a  violent  insurrection,  and  which  is  in- 
cumbent as  well  on  soldiers  as  on  civilians,  the  soldiers  retaining 
during  such  service  their  special  military  obligations.  Thus 
for  instance,  it  is  apprehended  that  if  martial  law  had  been 
proclaimed  in  London  in  1 780,  such  a  proclamation  would  have 
made  no  difference  whatever  in  the  duties  of  the  troops  or  the 
liabilities  of  the  rioters.  Without  any  proclamation  the  troops 
were  entitled  and  bound  to  destroy  life  and  propert)'  to  any  ex- 
( enl  which  might  be  necessary  to  restore  order.  It  is  difficult 
to  see  what  further  power  they  would  have  had,  except  that  of 
punishing  the  offenders  afterwards,  and  this  is  expressly  for- 
bidden by  the   Petition  of  Right." 

Sir  James  Fitz- James  Stephen  summed  up  his  views  of  mar- 
tial law  in  general  in  the  following  propositions :  First,  martial 
law  is  the  assumption,  by  officers-  of  the  crown,  of  absolute 
power  exercised  by  military  force  for  the  suppression  of  an  in- 


400  MILITARY   GOVERNMENT    AND    MARTIAL    LAW, 

surreccion  and  the  restoration  of  order  and  lawful  authority. 
The  officers  of  the  crown  are  justified  in  any  exertion  of  phys- 
ical force  extending  to  the  destruction  of  life  and  property  to 
any  extent  and  in  any  manner  that  may  be  required  for  the 
purpose.  They  are  not  justified  in  the  use  of  cruel  and  un- 
usual means,  but  are  liable  civilly  and  criminally  for  such  ex- 
cess. They  are  not  justified  in  inflicting  punishment  after  re- 
sistance is  suppressed  and  after  the  ordinary  courts  of  just- 
ice are  reopened.  The  principle  by  which  their  responsibility 
is  measured  is  well  expressed  in  the  case  of  Wright  v.  Fitz- 
Gerald.  i  Wright  was  a  French  school-teacher  who,  after  the 
suppression  of  the  Irish  rebellion  of  1798,  brought  an  action 
against  Mr.  Fitz-Gerald,  the  sheriff  of  Tipperary,  for  having 
cruelly  flogged  him  without  due  inquiry.  Martial  law  was  in 
full  force  at  that  time  and  an  act  of  indemnity  had  afterwards 
been  passed  to  excuse  all  breaches  of  the  law  committed  in 
the  suppression  of  the  rebellion.  In  summing  up,  Mr.  Justice 
Chamberlain,  with  whom  Lord  Yolverton  agreed,  remarked 
that  the  jury  were  not  to  imagine  that  the  legislature,  by  en- 
abling magistrates  to  justify  under  the  Indemnity  Bill,  had  re- 
leased them  from  the  feelings  of  humanity  or  permitted  them 
wantonly  to  exercise  power,  even  though  it  were  to  put  down 
rebellion.  No;  it  expected  that  in  all  cases  there  should  be  a 
grave  and  serious  examination  into  the  conduct  of  the  supposed 
criminal,  and  every  act  should  show  an  intent  to  discover 
guilt,  not  to  inflict  torture.  By  examination  or  trial  he  did  not 
mean  that  sort  of  examination  and  trial  which  they  were  then 
engaged  in,  but  such  the  best  the  nature  of  the  case  and  exist- 
ing circumstances  would  allow  of.  That  this  must  have  been 
the  intention  of  the  legislature  was  manifest  from  the  expres- 
sion "magistrates  and  all  other  persons,"  which  proved  that  as 
every  man,  whether  magistrate  or  not,  was  authorized  to  sup- 
press rebellion,  and  was  to  be  justified  by  the  Indemnity  Bill  for 
his  acts,  it  is  required  that  he  should  not  exceed  the  necessity 

I.  27  vState  Trials,  p.  759  (ante,  Sec.  11,  Introduction). 


MARTIAL    LAW    UNDER   ENGLISH    JURISPRUDENCi:.  4< )  I 

which  gave  him  the  power,  and  that  l:e  should  show  in  his  jus- 
tification that  he  had  used  e'very  possible  means  to  ascertain 
the  guilt  which  he  had  punished;  and,  above  all,  no  deviation 
from  the  common  principles  of  humanity  should  appear  in 
his  conduct. 

Second,  the  courts-martial,  as  they  are  called,  by  which 
martial  law  Ln  this  sense  of  the  word  is  administered,  are  not, 
properly  speaking,  courts-martial  at  all.  They  are  merely 
committees  formed  for  the  purpose  of  carrying  into  execution 
the  discretionary  powers  assumed  by  the  Government.  On 
the  one  hand,  they  are  not  obliged  to  proceed  in  the  man 
ner  pointed  out  by  the  Mutiny  Act  and  the  Articles  of  War. 
On  the  other,  if  they  do  so  proceed,  they  are  not  protected  by 
them  as  the  members  of  a  court-martial  might  be,  except  so 
far  as  such  proceedings  are  evidence  of  good  faith.  They  are 
justified  in  doing  with  any  forms  and  in  an)'  manner  whatever 
is  necessary  to  suppress  insurrection  and  to  restore  peace  and 
the  authority  of  the  law.  They  are  personally  liable  for  any 
acts  which  they  may  commit  in  excess  of  that  power,  even  if 
they  act  in  strict  accordance  with  the  Mutiny  Act  and  the 
Articles  of  War. 

393.  This  opinion  is  deemed  of  sufficient  importance  to  be 
quoted  at  length.  It  will  be  observed,  however,  that  the 
learned  counsel  who  delivered  it  had  only  under  consideration 
the  case  of  rebellion,  riot,  or  insurrection,  an  uprising  so  small 
in  its  proportions  as  not  to  warrant  dignifying  the  resulting  con- 
test for  its  suppression  by  the  name  of  war ;  nor  such  as  would 
secure  to  the  rebels  belligerent  rights ;  nor  does  the  situation  of 
a  community  disordered  by  invasion  receive  any  except  a  pass- 
ing allusion,  with  no  examination  as  to  what  the  necessities 
growing  out  of  such  a  state  of  afi'airs  legally  would  justify. 
Attention  at  the  time  it  was  delivered  was  being  earnestly 
directed  to  the  incidents  attending  the  recent  enforcement  of 
martial  law  in  the  distant  island  of  Jamaica;  and  the  burnhig 
question  of  the  hour  was  whether  after  the  suppression  of  active 
resistance  alleged  criminals  legallv  could  be  proceeded  against 

—26— 


402 


MILITARY   GOVERNMENT   AND    MARTIAL    LAW. 


before  military  tribunals  erected  under  the  authority  of  martial 
law,  or  whether  they  should  be  turned  over  for  trial  to  the  civil 
tribunals.  Upon  this  point  the  opinion  is  clear  that  the  latter 
is  the  proper  course  under  the  English  law. 

At  the  present  time  what  are  styled  above  as  committees 
are  designated,  under  English  martial-law  juriis^rudence, 
military  courts ;  they  reach  the  cases  of  all  those  "within  the 
proclaimed  district  not  triable  by  courts-martial  or  by  the  civil 
courts  that  may  have  been  retained;  the  causes  triable  before 
them  must  have  arisen  subsequent  to  the  inauguration  of 
martial  law  and  within  the  proclaimed  district,  i 

The  reference  made  to  the  disturbances  of  1780 — Lord 
George  Gordon  riots — shows  that  the  opinion  did  not  extend  in 
its  scope  beyond  the  case  of  a  formidable  uprising  such  as  those 
riots  were,  where  the  military  acted  in  aid  of  and  in  subordina- 
tion to  the  civil  authorities ;  but  in  point  of  fact  acted  thus  very 
inefficiently  compared  to  what  they  might  have  done,  due  to 
the  vacillation  and  want  of  firmness  on  the  part  of  the  civil 
magistrates,  who  first  hesitated  to  call  upon,  and  when  called 
out,  to  direct  the  military  where  and  how  to  act.  2  As  to  the 
powers  and  responsibilities  of  the  military  when  so  acting,  the 
views  of  the  opinion  are  in  consonance  with  those  heretofore 
expressed  in  this  treatise  as  attaching  to  officers  under  mar- 
tial law. 

394.  A  case  for  the  legal  declaration  of  martial  law,  or  its 
enforcement  perhaps  without  declaration,  like  that  which  arose 
at  New  Orleans  in  1 814,  at  Atlanta  and  other  places  in  the 
Confederacy,  or  in  Missouri,  Kansas,  and  elsewhere  within  the 
Federal  lines  during  the  Civil  War,  receive  no  consideration 
from  the  writer  of  the  opinion  just  cited.  Yet  these  are  ex- 
periences in  our  own  history  fraught  with  vastly  more  im- 
portant consequences  to  society  and  good  government  than 
are  the  incidents  attending  rebellion   in  a  small  semi-civiliized 

I.  Papers  relating  to  martial  law  in  South  Africa,  presented  to  Parlia- 
ment by  command  of  His  Majesty,  London,  1903.  2.  Finla^on,  Repres- 
sion of  Riot  and  Rebellion,  p.  7  et  seq. 


MARTIAL    LAW    UNDER   ENGLISH   JURISPRUDENCE.  403 

island,  where  the  energetic  use  of  a  few  soldiers  for  a  brief 
period  sufficed  to  stamp  out  effectually  all  resistance  to  lawful 
authority. 

395.  As,  therefore,  the  experiences  of  Great  Britain  and  the 
United  States  as  to  the  occurrences  which  called  forth  martial 
law  have  been  so  dissimilar,  it  is  not  to  be  wondered  at  if  the 
views  of  the  authorities  of  the  two  countries — executive,  legal, 
and  judicial  as  to  its  nature,  and  the  powers,  duties,  and  re- 
sponsibilities of  those  who  are  called  upon  to  put  it  into  execu- 
tion— should,  as  before  pointed  out,  to  some  extent  be  found 
to  differ.  It  would  be  strange  were  it  not  so.  Yet  careful  ex- 
amination will  evince  that  want  of  concurrence  is  not  so 
marked  as  might  have  been  anticipated  considering  the  unlike 
standpoints  occupied  by  those  whose  duty  it  has  been  to  give 
the  subject  closest  attention.  And  whatever  view  may  be 
taken  in  England  of  the  military  courts  which  may  sit  under 
martial  law,  whether  they  be  considered  mere  committees  or 
courts  proper,  their  nature  is  not  an  open  question  in  the 
United  States,  where  military  commissions  are  as  well  known 
and  within  their  proper  sphere  as  well  recognized  as  courts- 
martial  themselves.  1 

396.  "The  declaration  of  marshal  law,  or,  as  modern  usage 
prefers  to  write  it,  of  martial  law,"  says  Simmons,  2  "extends  its 
operations  to  persons  not  within  the  provisions  of  the  Mutiny 
Act,  and  subjects  the  whole  population  of  the  proclaimed  dis- 
trict to  orders  according  to  the  rules  and  discipline  of  war, 
and  renders  all  persons  amenable  to  courts-martial  on  the  or- 
der of  the  military  authority  and  so  long  as  the  civil  judica- 
ture is  not  in  force.  There  is  also  a  modified  exercise  of  martial 
law  where,  by  special  intervention  of  the  authority  exercising 
the  supreme  legislative  power,  courts-martial  have  been  erected 
into  tribunals  for  the  trial  of  persons  not  otherwise  subject  to 
military  law  for  certain  specified  offences,  notwithstanding  that 

I.  State  V.  Stillman,  Supt.  Ct.  Tenn.,' 7  Coldwell,  p.  352;  i  Wallace, 
pp.  251-4.  2.  Constitution  and  Practice  of  Courts-Martial,  7th  edition, 
Sec.  36. 


404  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

the  ordinary  course  of  law  may  have  been  partially  restored  or 
may  never  have  been  altogether  stayed."  He  then  remarks 
that  the  Mutiny  Act,  by  prohibiting  martial-law  methods  in 
time  of  peace,  indirectly  recognizes  resort  to  this  expedient  as 
legal  in  time  of  war  and  rebellion,  or  such  armed  rising  as  is 
levying  war  against  the  crown;  that  no  legal  dogma  can  be 
clearer  than  this,  and  being  each  year  recognized  by  Parlia- 
ment, it  is  entitled  to  all  the  deference  which  may  be  due  to  an 
act  of  the  legislature  so  repeatedly  revised  and  considered; 
finally,  that  the  legal  right  of  the  sovereign  to  resort  to  the 
exercise  of  martial  law,  as  here  defined,  has  been  frequently 
reasserted  by  the  legislature  and  is  not  to  be  questioned. 

397.  To  the  same  effect  is  McArthur,  who  calls  attention  to 
the  confusion  of  thought  often  fallen  into  by  able  lawyers  and 
writers,  who  constantly  confound  military  law  as  exercised  by 
authority  of  Parliament,  the  Mutiny  Act,  the  Articles  of  War, 
and  Army  Regulations,  "with  a  different  branch  of  the  royal 
prerogative  denominated  martial  law,  and  which  is  only  re- 
sorted to  upon  an  emergency  of  invasion,  rebellion,  or  insur- 
rection."! This  was  in  1813;  and  he  observes  that  martial 
law  is  proclaimed  by  authority  of  Parliament  over  the  kingdom 
partially  or  wholly  for  the  suppression  and  extinction  of  the  re- 
bellion; that  the  authority  under  which  martial  law  is  exer- 
cised, when  it  prevails  in  its  full  extent,  claims  a  jurisdiction 
in  summary  trials  by  courts-martial  not  only  over  all  persons 
in  the  military  service  under  all  circumstances,  but  that  it  alsa 
extends  to  a  great  variety  of  cases  not  relating  to  military 
matters,  byt  affecting  those  occupying  the  district  for  the  time 
being  subjected  to  martial  law. 

398.  Griffiths  observes  that  martial  law  extends  to  all  per- 
sons within  the  district  affected,  while  military  law  applies  only 
to  those  belonging  to  or  serving  with  the  army;  that  necessity 
is  the  only  rule  of  the  former;  that  the  punishments  which 
courts-martial  may  inflict  under  its  authority  are  not  limited  as 

I.   Vol.  I,  p.  33. 


MARTIAL    LAW    UNDER   ENGLISH    JURISPRUDENCE.  405 

under  ordinary  circumstances,  and  that  imperious  necessity 
under  the  actual  surroundings  at  the  time  determine  in  any  case 
what  punishments  are  suitable  for  established  guilt.  1  This  ac- 
cords with  the  remarks  of  Stephen,  before  quoted,  that  courts 
under  martial  law  are  not  bound  by  nor  could  they  seek  the 
shelter  of  the  Mutiny  Act. 

399.  In  the  Manual  of  Military  Law  issued  with  the  sanction 
of  the  British  War  Office  it  is  stated  that  martial  law  as  distin- 
guished from  military  law  and  the  customs  of  war  is  unknown 
to  English  jurisprudence ;  that  the  intermediate  state  between 
war  and  peace  called  by  Continental  writers  a  "state  of  siege" 
does  not  exist  in  English  law,  which  never  presupposes  the 
possibility  of  civil  war,  and  is  silent  as  to  such  a  condition  of 
things;  that  within  the  United  Kingdom  peace  always  exists 
in  contemplation  of  English  law,  and  the  disturbers  of  that 
peace  are  considered  guilty  according  to  the  gravity  of  their 
offences  and  punishable  therefor  with  fine,  imprisonment,  penal 
servitude,  or  death ;  that  while  what  is  called  martial  law  had 
been  in  former  times  proclaimed  against  disturbers  of  the  public 
peace  in  England,  yet  such  a  proclamation  in  no  degree  sus- 
pended the  ordinary  law  or  substituted  any  other  in  its  stead, 
and  amounted  to  no  more  than  an  authoritative  announcement 
of  the  existence  of  a  state  of  things  in  which  force  would  be 
used  against  wrong-doers  for  the  purpose  of  protecting  the  pub- 
lic peace;  that  the  origin  of  the  misuse  of  the  expression  "mar- 
tial law,"  as  implying  a  state  of  things  in  which  subjects  in  time 
of  peace  are  rendered  amenable  to  some  other  than  the  ordinary 
law,  would  probably  be  found  in  the  illegal  attempts  which  have 
been  mentioned  as  made  in  the  arbitrary  times  of  English  his- 
tory to  apply  military  law  to  the  civil  population,  as  in  those 
days  a  proclamation  of  martial  law  would  have  the  significant 
effect  that  military,  or,  as  it  was  then  called,  martial  law,  would 
be  substituted  for  the  ordinary  law  as  respects  the  disturbers  of 
the  public  peace ;  in  other  words;  that  the  rioters,  when  cap- 

I.  Notes  on  Military  Law,  London,  1841,  p.  20;  see  also  Franklyn* 
Outlines  of  Military  Law,  p.  84. 


406  MILITAEY   GOVERNMENT   AND   MARTIAL   LAW. 

tured,  would  be  tried  and  punished  by  military  and  not  by 
civil  tribunals;  that  such  a  state  of  things  never  legally  ex- 
isted in  England,  although  a  restricted  power  of  trying  by 
military  tribunals  offenders  against  the  public  peace  in  Ireland 
has  on  several  occasions  been  created  by  act  of  Parliament, 
and  that  by  English  law  those  persons  only  can  be  tried  by 
courts-martial  who  are  by  the  Army  Act  declared  to  be  subject 
to  military  law.  i 

400.  Such  may  be  the  theory  of  the  law.  But  as  to  this  it 
imports  little  whether  martial  law  be  recognized  in  English 
jurisprudence  or  not,  if  in  fact  it  be  appealed  to  not  infre- 
quently by  Parliament,  the  crown,  and  the  governors  of  im- 
portant colonies.  The  theory  that  this  law  has  no  recognition 
in  the  judicial  polity  of  any  country,  when  the  facts  show  that 
it  is  invoked  either  by  direction  or  with  the  approbation  of  the 
highest  governmental  authorities,  can  only  be  productive  of 
evil  consequences;  it  confuses  the  mind  by  creating  a  doubt 
whether  such  summary  procedure  as  attends  the  martial  law 
actually  in  force  can  ever  legally  be  resorted  to ;  and  however 
pleasing  the  idea  to  those  who  erect  for  themselves  in  this 
world  a  condition  of  society  and  government  where  all  is  bliss, 
contentment,  and  all  without  coercion  obey  the  laws,  expe- 
rience shows  that  it  is  impractical.  The  history  of  England 
refutes  it.  Whether  martial  law  be  or  be  not  recognized  by 
her  system  of  jurisprudence,  its  assistance  has  often  been  util- 
ized by  those  who  in  one  capacity  or  other  are  held  responsible 
for  the  preservation  of  law  and  order  in  the  community. 
Upon  this  point  a  recent  English  authority  remarks:  "The 
occasions  on  which  force  may  be  employed,  and  the  kind  and 
degree  of  force  which  it  is  lawful  to  use  in  order  to  put  down 
a  riot,  is  determined  by  nothing  else  than  the  necessity  of  the 
case.  If,  then,  by  martial  law  be  meant  the  power  of  the  gov- 
ernment or  of  loyal  citizens  to  maintain  public  order  at  what- 

I.  Page  4  et  seq  (2d  edition). 


MARTIAL    LAW    UNDER   ENGLISH   JURISPRUDENCE.  407 

ever  cost  of  blood  or  property  may  be  necessary,  martial  law 
is  assuredly  a  part  of  the  law  of  England."  1 

401.  Since  the  Petition  of  Right  none,  not  even  the  sov- 
ereign, it  is  apprehended,  has  seriously  entertained  the  thought 
that  martial  law  in  time  of  peace  was  legal  within  the  realm. 
To  argue  that  it  is  not,  is  a  waste  of  words ;  it  is  denying  what 
no  one  asserts  to  be  true.  What  is  claimed,  however,  and  what 
the  experience  of  that  country  proves  to  be  tiue  is  this :  When 
the  ordinary  authorities  are  unable  to  secure  to  the  people 
the  rights  of  life,  person,  and  property  which  society  was  or- 
ganized to  protect  and  government  to  maintain  in  consequence 
either  of  insurrection,  rebellion,  or  invasion,  and  it  becomes 
necessary  to  put  forth  every  resotuce  of  the  State  with  an  en- 
ergy and  promptness  of  which  the  military  power  alone  is 
capable,  then,  under  these  circumstances,  the  proper  govern- 
mental agents  are  justified  in  proceeding  by  another  and  un- 
written law,  sanctioned  by  custom  and  recognized  by  both  the 
executive  and  legislature  as  that  law  only  which  is  adapted  to 
such  emergencies.  It  is  not,  in  the  proper  sense,  a  time  of 
peace,  hence  the  laws  of  peace  are  not  applicable;  but  it  is 
either  absolutely  or  in  great  measure  time  of  war,  and  the  laws 
of  war  largely  prevail. 

402.  In  this  view  it  becomes  important  to  know  what  con- 
stitutes war,  and  in  regard  to  this  the  remarks  of  Lord  Tenter- 
den  are  worthy  of  particular  notice :  ' '  The  pomp  and  circum- 
stance of  military  array  such  as  usually  attend  regular  warfare 
are  by  no  means  necessary  to  constitute  an  actual  levying  of 
war.  Rebellion  at  its  first  commencement  is  rarely  found  in 
military  discipline  or  array,  although  a  little  success  may  soon 
enable  its  actors  to  assume  them."  2  To  the  same  effect  Lord 
Campbell,  then  Attorney-General,  remarked  that  "levying  war 
against  the  crown  is  where  there  is  an  armed  force  seeking  to 
supersede  the  law  and  gain  some  public  object.  "3     Lord  Chief 

T.  Dicey,  Law  of  the  Constitution  (1889),  p.  268.  2.  37  State  Trials, 
p.  684.     3.  Regina  v.  Frost,  9  Car   and  Payne's  Reports,  p    141. 


4o8  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

Justice  Tindal  added  that  "there  must  be  an  insurrection  and 
force  accompanying  it  and  an  object  of  a  public  nature."  It 
matters  not  what  kind  of  force,  if  it  be  offensive  and  destruct- 
ive— the  club  or  the  sword,  the  fire-arm  or  the  fire-brand. 
Numbers  armed  with  rude  weapons  may  overpower  a  smaller 
force  armed  and  disciplined;  and  when  that  disproportion  of 
force  is  established,  and  the  ordinary  powers  of  law  which  ap- 
ply only  to  actual  resistance  manifestly  fail,  recourse  must  be 
had  to  measures  of  war.  i 

403.  Without  going  back  to  the  more  violent  periods  of  her 
early  history,  English  modern  experience  furnishes  evidence  that 
the  ordinary  machinery  of  civil  government  may  be  inadequate 
successfully  to  deal  with  a  mere  passing  social  disorder  arising 
out  of  local  causes.  Recall  scenes  attending  the  seating  of  Mr. 
Wilkes  in  Parliament  in  1768,  the  so-called  Lord  George  Gor- 
don riots  of  1 780,  before  mentioned,  and  those  at  Manchester 
in  1830 !  2  On  the  first  occasion  alluded  to  matters  soon  passed 
beyond  the  power  of  the  magistracy  to  control,  and  the  military 
were  called  out  to  aid  the  civil  authorities.  At  last,  every  effort 
to  restore  tranquillity  proving  ineffectual,  the  soldiers  received 
the  word  of  command  and  fired.  Five  or  six  persons  were 
killed  and  fifteen  were  w^ounded.  The  mob  was  dispersed,  but 
inexpressible  rage  prevailed  against  the  soldiers.  The  King, 
howevet,  sanctioned  their  conduct,  which  put  a  timely  check  to 
the  daring  spirit  shown  by  the  mob,  and  returned  thanks  to 
the  commanding  officer  for  his  prudence  and  resolution.  Cer- 
tainly the  military  had  acted  none  too  soon.  "Nothing,"  says 
the  historian  Adolphus,  speaking  of  these  scenes,  "could  ex- 
ceed the  frenzy  and  indignation  which  prevailed  in  the  public 
mind;  riots  of  the  most  dangerous  nature  were  daily  excited. 
All  was  terror,  confusion,  and  alarm,  and  under  the  mask  of 
patriotism  treason  was  actively  employed;  combinations  were 
form.ed  in  different  parts  of  the  country ;  the  civil  arm  seemed 
too  weak  to  restrain  the  general  spirit  of  licentiousness  which, 

I.  Finlason,  Repression  of  Riot  and  Rebellion,  p.  33.     2.  Adolphus' 
History  of  England,  Reign  of  George  III.,  Vol.  i,  pp.  312,  313. 


MARTIAL   LAW   UNDER   ENGLISH   JURISPRUDENCE.  409 

actuated  by  a  designing  leader  or  stimulated  by  a  real  cause  of 
complaint,  would  have  produced  a  total  devastation  of  the 
social  order.  The  spirit  of  revenge  against  all  who  appeared 
to  support  the  government  in  the  late  proceedings  was  carried 
to  the  greatest  excess." 

After  quiet  was  restored,  the  magistrate  who  authorized  the 
military  to  fire  and  several  of  the  soldiers  were  indicted  for 
murder,  but  they  were  all  acquitted.  This  prosecution  of 
a  faithful  officer  who  had  done  his  duty  could  not  but  have  a 
baleful  influence,  which  twelve  years  afterwards  made  itself 
manifest  in  the  Gordon  riots.  In  the  latter  the  mob  finally  at- 
tacked the  bank,  but  the  soldiers  inflicted  a  servere  chastise- 
ment upon  them.  The  military  came  in  from  the  country,  and, 
in  obedience  to  an  order  of  the  King  in  council,  directions  were 
given  to  the  officers  to  fire  upon  the  rioters  without  waiting  the 
sanction  of  the  civil  power.  Tranquillity  was  restored,  but  not 
before  four  hundred  and  fifty-eight  persons  had  been  killed  or 
wounded,  i 

"The  magistracy  of  the  metropolis,"  says  the  historian, 
"have  been  reproached  for  supineness  during  the  prevalence  of 
these  dreadful  riots ;  but  it  was  not  forgotten  that  an  excellent 
magistrate  for  the  county  of  Surrey  was  tried  for  his  life  in  con- 
sequence of  the  order  given  by  him  at  the  riots  in  1 768,  for  the 
military  to  fire,  after  long  and  patiently  enduring  the  greatest 
provocation  from  the  rioters  and  twice  reading  the  riot  act. 
Such  a  precedent  could  not  but  tend,  in  a  similar  emergency, 
to  enfeeble  the  civil  power."  2  As,  after  the  riots  of  1768,  the 
magistrate  was  prosecuted  for  calling  on  the  military  to  sup- 
press the  disturbance,  so  now,  when  that  very  example  had 
deterred  him  from  acting,  the  lord  mayor  of  London  was  in- 
dicted and  convicted  for  not  calling  them  out. 

In  the  remaining  instance  referred  to,  the  Manchester  riots  of 
1830,  the  civil  officers  seem  again  to  have  been  influenced  by 
the  fate  of  their  predecessor   in   authority,  the  lord  mayor  of 

I.  Wade's  History  of  England,  p.  516.     2.   Ibid.,  p.  517. 


4IO  MILITARY   GOVERNMENT    AND   MARTIAL    LAW. 

London.  This  was  but  natural,  and  it  led  them  to  resolve  to 
escape  indictment  for  non-action  at  least.  The  result  was  that 
they  let  loose  the  yeomanry  cavalry  upon  an  indiscriminate 
crowd  of  men,  women,  and  children,  of  whom  several  hundred 
were  either  cut  down  or  trampled  under  the  horses'  feet.  We 
may  infer,  however,  that  the  officials,  civil  and  military,  in  this 
instance  hit  the  "precise  line"  of  their  duty,  as  Lord  Sidmouth 
communicated  to  them  the  thanks  of  the  Government  for  their 
prompt,  decisive  decree  and  efficient  measures  for  the  preser- 
vation of  the  public  tranquillity,  i 

With  such  instances  of  failure  of  civil  government  to  meet 
unusual  ebullitions  of  local  discontent,  it  is  not  surprising  that 
the  theory  which  invests  the  common  law  with  an  energy  equal 
to  every  emergency  has  become  discredited  even  with  English- 
men. In  the  light  of  these  facts,  what  becomes  of  the  principle 
that  peace  always  exists  in  contemplation  of  English  law? 

404.  Whatever  the  theoiy  may  be,  the  fact  is  that  martial 
law,  even  if  "unknown  to  English  jurisprudence,"  is,  as  here 
shown,  not  unknown  to  English  law  and  experience.  The  vari- 
ous acts  of  Parliament  before  cited,  providing  for  its  enforce- 
ment, and  its  declaration  in  English  colonies  either  under  the 
sanction  of  statutes  or  the  custom  of  war,  furnish  cumvilative 
evidence  of  this.  Nor  is  the  great  English  constitutional  histo- 
rian in  accord  with  the  Manual.  ' '  There  may  indeed  be  times  of 
pressing  danger,"  remarks  Hallam,  2  "when  the  conservation  of 
all  demands  the  sacrifice  of  the  legal  rights  of  the  few;  there 
may  be  circumstances  which  may  not  only  justify  but  compel 
the  temporary  abandonment  of  constitutional  forms.  It  has 
been  usual  for  all  governments  during  an  actual  rebellion  to  pro- 
claim martial  law  or  the  suspension  of  civil  jurisdiction.  And 
this  anomaly,  I  must  admit,  is  very  far  from  being  less  indispen- 
sable at  such  unhappy  seasons  in  countries  where  the  ordinary 
mode  of  trial  is  by  jury  than  where  the  rights  of  decision  reside 
in  the  judge.     The  executive  department  in  modern  times  has 

I.  Wade's  History  of  England  p.  750  2.  Constitutional  History  of 
England,  Vol.  i.  p.  240  et  seq. 


MARTIAL   LAW   UNDER  ENGLISH   JURISPRUDENCE.  41I 

been  invested  with  a  degree  of  coercive  power  to  maintain  obe- 
dience of  which  our  ancestors  in  the  most  arbitrary  reigns  had 
no  practical  experience.  If  we  reflect  upon  the  multitude  of 
statutes  enacted  since  the  days  of  Elizabeth  in  order  to  restrain 
and  suppress  disorder,  and  above  all,  on  the  prompt  and  certain 
aid  that  a  disciplined  army  affords  to  our  civil  authorities,  we 
may  be  inclined  to  think  that  it  was  rather  the  weakness  than 
the  vigor  of  her  government  which  led  to  its  inquisitorial 
watchfulniiss  and  harsh  measures  of  prevention."  To  the  same 
effect  is  Dicey :  ' '  The  belief,  indeed,  of  our  statesmen  down  to 
a  time  considerably  later  than  the  revolution  of  1689  was  that  a 
standing  army  must  be  fatal  to  English  freedom.  Yet  very 
soon  after  the  revolution  it  became  apparent  that  the  existence 
of  a  body  of  paid  soldiers  was  necessary  to  the  safety  of  the 
nation."  1 

405.  Referring  to  the  apprehension  that  it  would  be  danger- 
ous to  liberty  thus  temporarily  to  elevate  the  military  over  the 
civil  power,  Hallam  continues  :2  "Nothing  could  be  more  idle  at 
any  time  since  the  revolution  than  to  suppose  that  the  regular 
army  would  pull  the  speaker  out  of  his  chair,  or  in  any  manner 
be  employed  to  confirm  a  despotic  power  in  the  crown.  Such 
power,  I  think,  could  never  have  been  the  waking  dream  of 
either  king  or  minister.  But  as  the  slightest  inroads  upon 
private  rights  and  liberties  are  to  be  guarded  against  in  any 
nation  that  deserves  to  be  called  free,  we  should  always  keep 
in  mind  not  only  that  the  military  power  is  subordinate  to  the 
civil,  but  as  the  subordination  must  cease  when  the  former  is 
frequently  employed,  that  it  should  never  be  called  upon  in 
aid  of  the  peace  without  sufficient  cause.  Nothing  would  more 
break  down  the  notion  of  the  law's  supremacy  than  the  perpet- 
ual interference  of  those  who  are  really  governed  by  another 
law;  for  the  doctrine  of  some  judges, that  the  soldier, being  still  a 
citizen,  acts  only  in  the  preservation  of  the  public  peace  as  any 

I.  Study  of  the  Constitution,  p   268.     2.  Vol.  3,  p.  253. 


412  MILITAKY   GOVERNMENT   AND   MARTIAL   LAW. 

other  citizen  is  bound  to  do,  must  be  felt  as  a  sophism  even  by 
those  who  cannot  find  an  answer  to  it." 

406.  Viewed  in  the  light  of  such  authority  and  of  the  various 
statutes  instituting  martial  law  in  Ireland  and  the  carrying  it 
into  execution  in  various  British  colonies  under  executive  sanc- 
tion, the  dogma  that  martial  law  is  unknown  to  English  jiu-is- 
prudence  wiU  scarcely  be  deemed  by  the  unprejudiced  to  be  of 
great  importance.  Those  who  have  actually  to  deal  with  the 
afifairs  of  this  world  and  are  responsible  for  the  preservation  of 
society  and  supremacy  of  the  laws  are,  as  a  rule,  more  inter- 
ested in  knowing  what  exists  in  fact  rather  than  in  theory. 
"When,"  says  Clode,  "foreign  invasion  or  civil  war  renders  it 
impossible  for  courts  of  law  to  sit,  or  to  enforce  the  execution 

NoTE.^The  language  of  the  historian  in  the  closing  sentence  above 
quoted,  as  to  the  proposition  that  the  soldier,  being  still  a  citizen,  is  bound 
equally  with  all  other  citizens  to  aid  in  putting  down  insurrections,  was 
called  out  by  a  remark  made  by  an  eminent  English  judge  relative  to  the 
employment  of  the  military  in  suppressing  the  Gordon  riots.  Hallam 
pronounces  it  a  sophism.  And  so  in  fact  it  is,  unless  it  be  understood  in 
a  particular  sense.  The  military,  especially  the  regular  force,  are  gov- 
erned by  a  law  of  their  own ;  every  member  of  it  takes  an  oath  to  obey 
the  lawful  orders  of  the  superiors  appointed  over  him.  To  these  supe- 
riors his  services  and  obedience  are  first  due.  If,  therefore,  it  should  hap- 
pen that  the  civil  magistrate  calls  the  soldier  in  one  direction,  and  his 
superior  military  officer  in  another,  he  must  obey  the  latter.  The  propo- 
sition is  true,  therefore,  only  in  case  the  soldier,  when  the  magistrate  de- 
mands his  services,  is  not  called  elsewhere  by  his  officers.  So  much  for 
the  soldier  acting  individually  in  response  to  the  demand  of  the  civil  au- 
thorities. But  all  know  how  inefficient  and  futile  such  assistance  must  be 
in  times  of  extreme  peril.  Individual  soldiers,  how  many  soever  they 
may  be  on  such  occasions,  are  mixed  with  and  are  lost  to  view  almost  in 
the  multitude.  They  have  not  even  arms  in  their  hands ;  for  the  soldier ^ 
when  walking  the  streets  like  a  private  citizen,  does  not  carry  his  arms 
with  him.  His  presence  adds  nothing,  therefore,  to  the  power  of  the 
civil  arm.  It  is  only  when  organized  and  directed  by  their  own  officers 
that  the  military  become  formidable.  Yet  when  so  acting  there  can  be 
seen  little  similarity  in  the  position  of  the  soldiers  and  that  of  citizens 
forming  the  posse  comitatus,  and  directed  by  the  civil  magistrate,  except 
that  both  act  to  sustain  the  law's  supremacy. 


i 


MAETIAL    LAW    UNDER   ENGLISH    JURISPRUDENCE.  413 

of  their  judgments,  it  becomes  necessary  to  find  some  rude  sub- 
stitute for  them,  and  to  employ  for  that  purpose  the  military, 
which  is  the  only  remaining  force  in  the  community.  While 
the  laws  are  silenced  by  the  noise  of  arms,  the  rulers  of  the 
armed  force  must  punish  as  equitably  as  they  can  those  crimes 
which  threaten  their  own  safety  and  that  of  society."  1  And  of 
course  insurrection  or  rebellion  will,  if  the  danger  be  sufficiently 
pressing,  equally  with  invasion  or  civil  war,  justify  resort  to 
the  same  measures  of  self-preservation. 

407.  Clode  elsewhere  remarks  that  martial  law  is  not  a  writ- 
ten law ;  that  it  arises  on  a  necessity  to  be  judged  of  by  the  ex- 
ecutive, and  ceases  as  soon  as  possible  with  safety  to  the 
country  or  community;  and  that  while  existing  it  covers  all 

The  important  point  is — and  herein  Ues  the  fallacy  of  the  proposition 
referred  to  by  Hallam — that  regular  soldiers,  in  the  capacity  which  alone 
renders  them  effective  against  disturbers  of  the  peace — namely,  when 
acting  as  an  organized  body  under  their  military  commanders,  are  not,  like 
the  ordinary  citizen,  immediately  amenable  to  the  civil  magistrate,  who 
secures  the  services  of  the  soldiery,  if  at  all,  through  the  instrumentalitv 
of  their  officers.  Regular  soldiers  so  circumstanced  form  no  part  of  the 
posse  comitatus,  as  that  term  applies  to  civilians,  upon  whom  the  civil 
magistrate  lays  the  hand  of  authority  directly.  In  the  United  States 
there  is  a  federal  statute  forbidding  the  use  of  the  army  as  a  posse  comi- 
tatus, save  in  a  very  few  instances.^  And  although  this  is  not  true  in 
England,  yet  it  is  true  there  as  here  that  the  regular  forces,  when  act- 
ing with  arms  in  their  hands,  do  so  mainly  under  the  direct  orders  of  their 
lawfully  appointed  military  superiors.  It  is  therefore  plainly  erroneous 
to  class  them  with  civilians  as  to  obligations  to  obey  the  mandates  of  civil 
magistrates  in  summoning  the  posse  comitatus  to  suppress  insurrection. 
When  the  military  are  called  out  it  is  through  the  medium  of  their  com- 
manding officers,  who  alone  direct  their  movements;  while,  as  regards 
civilians,  the  civil  magistrate  not  only  drafts  them  into  service,  but  per- 
sonally commands  them  and  directs  their  energies  to  the  maintenance  of 
the  law.  When  the  civil  magistrate  has  indicated  to  the  officer  com 
manding  where  and  how  the  services  of  the  troops  are  desired,  his  func- 
tions cease;  it  is  for  the  officer  to  adopt  whatever  measures  his  experi- 
ence and  knowledge  of  military  affairs  suggest  as  best  suited  to  accom- 
plish the  end  in  view. 

1.  M.  F.,  Vol.  2,  p.  161,     2.  Act,  June  18,  1878,  Sec.  10.  Ch.  263. 


414 


MILITAET   GOVERNMENT   AND   MARTIAL   LAW. 


persons,  civil  and  military,  but  that  those  who  act  under  it 
must,  if  called  to  account,  justify  their  acts  by  showing  that 
the  necessity  actually  existed,  i 

408.  The  English  writer,  Pratt,  considers  somewhat  partic- 
ularly the  subject  of  martial  law,  but  does  not  sufficiently  dis- 
tinguish that  law  from  military  government.  "In  most  for- 
eign countries,"  he  observes,  "certain  laws  are  made  applicable 
to  a  state  of  war  or  a  state  of  siege  or  insurrection  when  a  city 
or  county  is  wholly  or  partially  placed  under  military  author- 
ity. In  England  no  such  regulation  exists.  When  an  author- 
ity is  forced  by  necessity  to  suspend  the  ordinary  legal  pro- 
cedure, it  is  for  it  to  lay  down  the  limits  of  its  action  and  to 
justify  itself  for  using  exceptional  power." 2 

He  then  lays  down  the  following  principles  as  those  which, 
as  far  as  practicable,  should  be  observed  in  carrying  martial 
law  into  effect :  ( i )  It  is  not  retrospective ;  an  offender  cannot 
be  tried  under  it  for  a  crime  that  was  committed  before  martial 
law  was  proclaimed.  (2)  It  does  not  extend  beyond  the  pro- 
claimed district  outside  of  which  an  offender  cannot  be  either 
arrested  01  tried.  (3)  It  should  not  be  kept  in  force  longer 
than  absolutely  necessary.  (4)  The  piocess  of  military  law 
should,  as  far  as  practicable,  be  adhered  to. 

The  field  of  vision  of  this  writer,  when  considering  martial 
law  as  a  domestic  fact,  seems  to  be  contracted  to  the  occasion 
of  mere  riot,  insurrection,  or  minor  rebellion.  The  circum- 
stance either  of  invasion  by  a  foreign  foe  or  of  a  rebellion  like 
that  of  1861-65  in  the  United  States,  or  of  the  seventeenth 
century  in  England,  receives  nothing  more  than  a  passing 
allusion. 

409.  The  general  rules  which  this  author  lays  down  as  those 
to  be  followed  in  the  administration  of  martial  law  are  good  in 
themselves,  and  the  only  question  likely  to  arise  is  as  to  their 
applicability  to  varying  circumstances. 

410.  His  proposition  that  martial  law  cannot  operate  retro- 

I.  Military  and  Martial  Law,  Chap.  11,  Sees.  3,  5.  2.  Military  Law, 
p.  214 


J 


MAETIAL  LAW   UNDER  ENGLISH   JURISPRUDENCE.  415 

spectively  may  be  conceded  as  agreeing  generally  with  the  fact ; 
yet  it  should  be  received  with  caution..  It  will  scarcely  be 
questioned,  for  instance,  that  those  whose  crimes  have  rendered 
martial  law  in  any  district  a  necessity  will  not  be  permitted  on 
such  a  plea  to  escape  the  legitimate  consequences  of  their  mis- 
deeds. If  the  civil  judicature  can  take  cognizance,  well  and 
good ;  but  if  not,  are  such  criminals  to  go  un whipped  of  justice 
on  the  specious  plea  that  the  military  authorities — the  only 
power  that  exists — cannot  act  in  their  cases? 

411.  The  second  proposition — namely,  that  martial  law 
'does  not  extend  beyond  the  proclaimed  districts,  and  an  of- 
fender cannot  be  either  arrested  or  tried  beyond  its  limits" — is 
very  general  in  its  terms,  and  as  a  principle  to  be  remembered 
without  being  strictly  guided  by  it  perhaps  will  do  no  harm; 
yet  this,  too,  as  will  hereafter  be  seen,  is  subject,  in  practice, 
to  so  many  exceptions  that  as  a  rule  of  conduct  it  is  of  little 
value.  1 

412.  The  third  rule  laid  down  by  Pratt — namely,  that  mar- 
tial law  should  never  be  kept  in  force  longer  than  is  absolutely 
necessary — will  not  be  disputed.  Yet,  like  the  two  preceding 
rules,  it  is  but  a  general  guide, subject  to  modification  with  vary- 
ing facts  and  circumstances.  What  is  meant  by  "absolute  ne- 
cessity" ?  Who  is  to  judge  of  its  existence?  It  is  a  condition  of 
affairs  in  which  were  the  military  rule  withdrawn,  society  would 
disintegrate  and  government  become  chaos?  This  would 
render  martial  law  an  absolute  necessity;  but  will  nothing 
short  of  this  do  it?  It  should  and  will  remain  in  operation 
until  this  stage  of  the  public  danger  has  been  passed. 

413.  But  when  invasion  has  either  been  repelled  or  its  efforts 
warded  off ;  the  riot,  insurrection,  or  rebellion  so  far  suppressed 
that  the  municipal  authorities,  acting  through  their  normal  and 
wonted  channels,  secure  to  the  people  the  enjoyment  of  civil 
institutions,  with  safety  to  the  State,  martial  law  must  cease. 
With  safety  to  the  State,  we  have  said,  and  this  is  the  funda- 
mental consideration,  because  even  although  the  danger  at  the 

I.  See  chapter   'Martial  Law  Tribunals,"  post. 


4l6  MILITAKY    GOVERNMENT    AND    MARTIAL    LAW. 

particular  locality  be  not  urgently  pressing,  still,  if  taking  into 
view  the  situation  of  the  whole  country,  national  interests  would 
be  jeopardized  by  a  cessation  of  the  martial  rule,  yet  would  the 
military  properly  retain  the  reins  of  power. 

414.  What  has  been  said  answers  the  second  queston  grcw- 
ing  out  of  the  third  proposition — namely,  UTio  is  to  judge  wheth- 
er or  not  that  absolute  necessity  exists  which  justifies  the  con- 
tinuance of  martial  law?  In  the  first  instance,  the  commander 
or  other  authority  responsible  for  the  maintenance  of  law  and 
order,  or  repelling  the  invasion,  must  determine  it.  In  the 
case  of  a  military  commander  who  had  assumed  the  authority 
to  declare  martial  law  or  to  put  it  in  operation  under  previous 
legislative  sanction,  his  judgment  would  be  subject  to  review 
by  his  military  superiors,  and  also,  it  is  conceived,  before  a  jury 
of  his  countrymen,  should  he  take  advantage  of  his  position  to 
act  in  a  capricious,  oppressive,  and  tyrannical  manner. 

415.  At  first  blush  it  might  seem  that  this  possible  responsi- 
bility to  a  body  of  twelve  men  who  survey  the  circumstances  of 
the  commander  from  the  safe  and  unexciting  station  of  a  jury- 
room  would  in  any  event  be  a  great  hardship,  the  propriety 
or  wisdom  of  which  it  would  be  difficult  to  vindicate.  This  di- 
lemma of  the  officer  has  not  escaped  notice^  and  the  policy  of 
the  law  has  been  animadverted  upon.  Sir  Charles  Napier  in 
his  remarks  on  military  law  complains  of  the  position  of  an 
officer  who,  in  the  corresponding  case  of  suppressing  a  riot,  is 
still  liable  to  trial  by  the  ordinary  tribunals  for  what  he  may  do 
in  executing  the  duty  imposed  on  him  by  the  civil  magistrate.  1 

416.  It  is  deserving  of  notice,  however,  in  this  connection, 
that  the  military  officer  apparently  acts  under  no  greater  re- 
sponsibility than  the  civilian  official.  In  the  theory  of  the  law 
this  is  strictly  true.  Still,  in  fact,  the  situations  are  very  dif- 
ferent, to  the  disadvantage  of  the  soldier.  The  military  officer 
amidst  the  scenes  of  martial  law  and  the  civil  officer  acting  in 
times  jf  peace  or  of  minor  disturbance  even  are  in  very  differ- 

I.  Page  3S. 


MAETIAL  LAW  UNDER  ENGLISH  JUHISPRUDENCE.  417 

ent  positions,  and  the  relative  difficulties  of  their  respective 
situations  are  greatly  against  the  former  and  in  favor  of  the 
latter.  To  the  military  commander  is  given  little  or  no  time 
for  the  formation  of  a  judgment  based  on  calm  reflection  and 
a  dispassioned  view  of  the  circumstances  which  beset  him. 
Promptness  and  firmness  are  expected  of  him.  With  him  hes- 
itancy is  fatal.  In  all  these  particulars  the  position  of  the 
civil  magistrate  is  more  advantageous.  The  machinery  of 
municipal  authority  is  well  regulated  and  its  workings  under- 
stood not  only  by  the  officers,  but  the  peoi^le  themselves. 
The  civil  officer  surveys  the  field  and  with  due  deliberation 
adopts  measures  to  meet  the  exigency. 

417.  To  apply  the  same  principle  of  responsibility  to  both 
classes  of  officials,  military  and  civil,  when  the  position  of  the 
latter  is  so  much  more  eligible,  might  seem  to  be  unjust.  But 
experience  proves  that  this  is  more  in  appearance  than  in  fact, 
for  juries  act  under  the  instructions  of  judges  who,  as  a  rule,  are 
at  once  patriotic,  learned,  and  impartial,  and  who  point  out 
the  law  applicable  to  the  case  with  wisdom  and  in  a  spirit  of 
fairness.  The  unusual  circumstances  of  difficulty  which  sur- 
round military  men  so  situated  are  generally  given  due  consid- 
eration, and  the  leaning  of  his  countrymen  will  generally  be 
found  towards  that  commander  who,  even  if  it  be  by  the  ex- 
ercise of  questionable  authority,  hai  the  courage  and  forti- 
tude to  protect  property,  preserve  life,  and  restore  order  to 
a  distracted  community.  1 

41 8.  The  fourth  proposition  of  this  writer — namely,  that  the 
forms  of  military  law  should,  as  far  as  practicable,  be  adhered 
to — requires  no  extended  notice.  While  in  the  trial  of  causes 
thus  arising  it  will  be  convenient  to  adhere  to  well-known  court- 
martial  rules  of  procedure,  they  are  not  obligatory  except  in  so 
far  as  superior  authority  may  have  rendered  them  so.  The 
fairest  trial  that  the  case  will  admit  of  should  be  had ;  but  sub- 
stance under  such  circumstances  takes  precedence  of  form. 

I.  Hare,  Constitutional  Law,  Vol.  2,  p.  920. 

27— 


41 8  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

Military  law  proper — the  statutory  law — is  applicable  directly 
to  the  army  and,  in  time  of  war,  to  camp-followers ;  and  while 
the  commander  might  on  principles  of  analogy,  and  as  far  as 
wisdom  dictates,  render  the  inhabitants  of  a  district  subjected 
to  martial  rule  amenable  to  military  law,  he  is  under  no  obliga- 
tion to  do  so.  He  neither  derives  his  authority  over  them  from 
that  law,  nor  can  he  appeal  to  it  to  justify  his  conduct  towards 
them  should  this  become  necessary. 

419.  Martial  law  being  lex  non  scripta,  its  rules  of  action 
rest  upon  the  customs  of  civilized  nations.  1  These  are  well 
established,  and  to  most  military  men  are  familiar.  They 
vary  with  circumstances  and  the  exigencies  of  the  occasion. 
To  repel  invasion,  for  instance,  it  might  be  necessary  for  the 
commander  to  gather  into  his  hands  all  the  reins  of  govern- 
ment, and  for  the  time  rule  in  a  wholly  arbitrary  and  even 
despotic  manner,  directing  every  resource  of  the  district  to 
the  one  object  of  frustrating  the  plans  of  the  enemy.  For 
this  purpose  whatever  property  is  necessary  may  either  be 
taken  or  destroyed,  and  the  personal  freedom  of  the  people 
be  regulated  in  such  manner  as  the  commander  of  the  defend- 
ing forces  may  direct.  At  such  times  the  maxim,  "Salus 
populi  est  suprema  lex,"  is  peculiarly  applicable. 

On  the  other  hand,  if  a  minor  case  of  rebellion  is  being 
dealt  with,  an  insurrection  or  formidable  riot,  the  military 
commander  may  well  avail  himself  of  the  aid  of  the  civil 
machinery  of  government,  including  the  courts,  to  bring  de 
linquents  to  justice  and  in  other  ways  vindicate  the  law,  all, 
of  course,  under  his  authority  and  direction  so  long  as  martial 
law  is  maintained. 


I.  American  Instructions,  Sec.  i,  par.  13, 


CHAPTER  XIX. 
Theory  op  Martial  Law  in  the  United  States. 

420.  So  much  for  English  authorities  as  to  the  nature  of 
martial  law  and  powers  exercisable  thereunder.  In  the  United 
States  the  disposition  to  refer  to  English  precedents  has  had  its 
influence  in  this  as  in  other  juridical  fields.  Hence  we  find  these 
frequently  quoted  by  American  wricers,  lawyers,  and  jurists 
when  treating  this  subject.  Still,  as  before  observed,  the  cir- 
cumstances under  wnich  maxtial  law  has  here  been  instituted 
differ  in  so  many  paiticalars  from  those  attending  a  conespond- 
ing  exeicise  of  power  in  England  and  her  dependencies  that 
new  rules  or  mate'"ial  modifications  of  those  inherited  from  the 
mother  country  are  with  us  necessary. 

42 1.  In  his  argument  in  the  Milligan  case,  1  the  attorney- 
general  2  defined  martial  law  as  the  will  of  the  commanding 
officer  of  an  armed  force,  or  of  a  military  geographical  depart- 
ment, expressed  in  time  of  war  within  his  military  jurisdiction 
as  necessity  demands  or  dictates,  restrained  or  enlarged  by 
the  orders  of  his  militaiy  chief  or  the  supreme  executive  ruler. 

422.  He  laid  down  the  br  )ad  principle  that  the  officer 
executing  martial  law  is  at  the  same  time  supreme  legislator, 
supreme  judge,  supreme  executive;  that  as  necessity  makes  his 
will  the  law,  he  only  can  define  and  declare  it,  and  whether  or 
not  it  is  infiinged,  and  of  the  extent  of  the  infraction,  he 
alone  can  judge  and  his  sole  older  punishes  or  acquits  the 
offender. 

423.  This  definition  and  these  views  seem  to  be  in  a 
measure  inconsistent.  For  if  the  commander  be  supreme  to 
the  degree  indicated  in  the  closing  sentences,  how  can  he  be 
subjected  to  those  restrictions   laid  down  as   proper  in  this 

I.   4  Wallace,  p.  2.      2.  Speed. 

41Q 


420  MILTTAEY  GOVERNMENT  AND  MAKTIAL  LAW. 

definition  of  martial  law?  It  is  believed  that  upon  the  latter 
point  the  definition  conforms  to  the  true  doctrine;  that  the 
official  carrying  martial  law  int )  execution  acts  subject  to 
restrictions  imposed  by  superioi  authority;  and  not  only  that, 
but  through  the  instrumentalities  of  the  civil  courts  he  may  be 
made,  as  before  pointed  out,  responsible  to  those  whose  rights 
of  person  and  property  he  may  have  violated  through  in- 
considerate and  unjustifiable  conduct.  When  it  is  said  that 
he  is  supreme,  it  can  only  be  meant  that  on  the  spot  there  i-  no 
power  capable  3f  arresting  the  execution  of  his  mandaces.  In 
this  sense  and  t )  this  degree  he  is  supreme.  So,  likewise,  are 
very  many  besides  milicary  officers,  who  in  isolated  positions 
have  authority  placed  in  their  hands  to  be  exercised  at  dis- 
cretion ;  they  for  the  time  being  are  supreme  within  their  spheres 
of  action,  bat  the  chain  of  their  ultimate  responsibility  is  un- 
broken, binding  them  to  a  faithful  discharge  of  their  public 
trust  under  penalities  provided  by  the  law  itself. 

424.  The  opposing  counsel  1  in  the  case  referred  to,  while 
arguing  upon  the  subject  under  discussion  from  different 
premises,  arrived  at  essentially  the  same  conclusions  regarding 
the  authority  of  military  commanders  under  sucn  circumstances : 
"I  say  what  is  called  xnartial  'aw,"  he  observed,  "for  strictly 
there  is  no  such  ching  as  martial  law ;  it  is  martial  rule — that  is  to 
say,  the  will  of  the  commanding  officer,  nothing  more,  nothing 
less.  What  is  ordinarily  called  martial  law  is  no  law  at  all. 
Wellington,  in  one  of  his  despatches  from  Portugal,  in  1810, 
and  in  his  speech  on  the  Ceylon  affairs,  so  describes  it.  Let  us 
call  the  thing  by  the  right  name ;  it  i  ••  not  martial  law,  but  martial 
rule.  And  when  we  speak  of  it,  let  us  speak  of  it  as  abolish- 
ing all  law  and  substituting  the  will  of  tne  military  commander, 
and  we  shall  give  a  true  idea  of  the  thing  and  be  able  to  reason 
about  it  with  a  clear  sense  of  what  we  are  doing."  Thus 
do  extremes  meet.  Each  side  to  the  contention  errone- 
ously maintained  the  absolute  nature  of  the  power  wielded  un- 
der martial  law;  the  one  to  lend  a  sanction  t  >  military  com- 

I.  Mr.'David  Dudley  Field. 


THEORY  OF  MARTIAL  LAW  IN  THE  UNITED  STATES.         42 1 

missions  far  from  the  field  of  operations,  the  other  to  prove 
that  such  commissions  legally  could  not  be  convened. 

425.  The  reference,  however,  to  the  remarks  of  the  Duke  of 
Wellington  sufficiently  evinces  that  che  advocate  making  use  of 
it  did  not  properly  discriminate  between  militarv  government 
which  the  Duke  had  in  mind,  and  which  is  governed  by  the 
laws  of  war,  and  that  martial  law,  considered  as  a  domesti'^ 
fact,  the  exercise  of  which  was  being  argued  in  the  case  at  bar. 

426.  It  is  plain,  too,  that  this  arbitrary  authority  was,  in 
the  argument,  held  to  be  closely  allied,  if  not  identical,  with 
irresponsible  power.  But  this  was  clearly  wrong.  In  this  coun- 
try, at  least,  military  officers  cannot  exercise  such  authority; 
it  ^'s  inconsistent  with  the  principles  of  our  government,  under 
which  the  people  justly  regard  the  responsibility  of  all  public 
servants  to  the  law  as  the  palladium  of  liberty. 

427.  The  Supreme  Court  in  this  case,  as  is  well  known,  took 
occasion  to  support  the  view  that  martial  law,  under  certain 
conditions,  legally  could  be  enforced  in  the  United  States.  And 
while  the  justices  disagreed  upon  the  question  as  to  the  terri- 
torial limits  that  properly  should  be  assigned  to  the  exercise  of 
martial-law  power,  they  all  agreed  that  in  cases  of  great  emer- 
gencies, when  society  was  disordered  by  insurrection  or  in- 
vasion, and  the  exeruijn  of  every  energy  of  government  was 
necessary  to  save  the  country,  the  exercise  of  martial  law, 
from  the  necessities  of  the  case,  then  became  legal. 

428.  What  was  said  by  the  justices  regarding  martial  law 
was  indeed  obi.ter.  That  question  was  not  before  the  couit  for 
determination.  Upon  the  matter  at  issue  all  were  agreed. 
Still,  as  in  the  arguments  the  nature  of  martial  law  was  elab- 
orately discussed,  all  the  justices,  five  expiessing  the  majoii^y 
and  f  jur  the  minority  views,  took  occasion  to  clear  up  the 
judicial  atmosphere  which  bef  :>re  had  rendered  the  subject  hazy. 
Nor  did  this  division  of  opinion  lend  greater  obscurity.  The 
difference  between  opposing  views  reduced  itself  t  >  one  point, 
namely,  whether  or  not  martial  law  legally  could  be  enforced 
in  districts  far  removed  from  the  tread  of  contending  armies, 


422  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 
n-yi  outside  the  pale  of  law.  As  was  said  by  the  Supreme  Court 
of  the  United  States  in  Luther  v.  Borden :  1  "  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 
necessary  to  the  States  of  this  Union  as  to  any  other  govern- 
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  Scate  as  to  require  the  use  of  its  military  force 
and  the  declaration  of  maitial  law,  we  see  no  grxmd  upon 
w'.iich  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  entering  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 
theieunder  mere  empty  parade;  but  the  court  tO)k  care  sedu- 
1  msly  to  guard  the  rights  of  the  people  by  remarking  that  no 

I.  7  Howard,  p.  i. 


THEORY  OF  MAKTTAL  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  wilfull)'^  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  follows  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- 
thority, 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 
not  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."  1  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  MILITARY   GOVERNMENT   AND    MARTIAL   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  further  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  becom.es  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  ins  rumiental  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  1 814-15  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 


THEORY  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  am  theState."  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 
insure  success.  It  might  be  that  calculating  politicians,  igno- 
rant of  the  difficulties  that  surrounded  him,  would  condenm  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  MILITAKT   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  to  perpetu- 
ate. Could  he  have  f  )Ught  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  securicy  and  quiet  which  che  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  che  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'sLife  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- 
tieve  the  better  judicial  opinion  of  the  country  concurs.  1 

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  concentrate  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  give  an  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  Drder  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 
efiforts  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  Df  the  judiciary  of  England  and  the  United  Scates. 

438.  In  the  aspect  that  it  is  the  exercise  ii  the  last  powei  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  Staces  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  understood.  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 

buii  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.  ^ 
I.   See  Sees.   602,  603,  604,  Chap.   XXV.,   post. 


CHAPTER  XX. 
Martial  Law  SuppIvEments  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  fail  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  right  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 

430 


MAKTIAL  LAW  SUPPLEMENTS  COMMON  LAW.  431 

the  people  to  put  down  the  uprisings  of  their  own"  brothers, 
neighbors,  and  friends  with  whom  thev  sympathized. 

44.3.  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  soveieigns  of  England  to  resort  to  what 
was  denominated  martial  law.  Before  finding  fault  it  would  be 
well  to  point  out  what  course  c  )uld  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  t)Tanny.  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  formeily  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;  Whking,  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. 
Even  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  kill  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 for  him  to  follow  the  precise  line  marked  out  by  the  law — 
often  a  difficult  task  in  times  )f  peace,  and  all  the  more  so  when 
amidst  civil  disturbances,  the  fears,  hopes,  and  passions  of  men 
are  excited  and  calm  deliberation  before  decisive  action  often 
is  rendered  impossible. 


MARTIAL  LAW   SUPPLEMENTS   COMMON   LAW.  433 

4|8.  It  has  been  said  that  the  common  law  is  based  upon 
considerations  afifecting  (i)  the  public  good;  (2)  the  safety  of 
the  community.  But  in  emergencies  it  recognized  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  powers:  of  anticipating  civil  disorders  were  nil, 
whi^e  those  of  siipprfession  and  prosecution,  as  just  seen,  were 
incompetent  to  cope  with  rebellion. 

449.  When  we  consider  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  theu  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  Runnymede  in  1215  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. 

45  r.  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  u^e  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  regir- 
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  lim- 

—28 


434  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

its  is  therefore  in  such  times  justified  on  the  pi  inciple  of  abso- 
lute necessity,  i  And  in  this  Mr.  Sergeant  Spankie  concurred 
when  he  wrote  tnac  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  ey-.acise  of  its  prerog- 
ative— that  is,  of  its  right  to  do  its  duty,  arall  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  ics  spread- 
ing, that  miglit  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. 


MARTIAL  LAW   SUPPLEMENTS   COMMON    LAW.  435 

453.  When  the  Revokition  of  1775  was  precipitated,  the 
people  had  thus  become  familiar  with  practical  tnilitarv  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  f  Drees,  sent 
out  to  secure  public  propeity,  had  been  attacked,  compelled 
to  abandon  then  enterprise,  and  many  of  them  killed.  The 
sympathy  of  the  people  was  with  the  assailants  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 
affect  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,  wh  d  have  already  begun  and  threaten  further  to  prose- 
cuce  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  purpose  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  struggle  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  governors  took  in  their  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  1 775-83  was  characterized  by  heroic 
sacrifices.  But  it  would  be  practicing  self-deception  to  imagine 
that  ic  was  not  accompanied  by  the  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 


MARTIAL  LAW   SUPPLEMENTS   COMMON   LAW.  437 

New  Y  )rk  city  with  its  adjacent  defences  had  been  seized  by  the 
enemy.  The  commander-in-chief,  wiih  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  capture,  that  body 
hastily  adjourned  to  meec  at  Baltimore.  It  was  then  that  by 
formal  resolve  of  Congress  all  affairs  of  government,  in  so  far 
as  chey  related  to  the  piosecution  of  the  wai,  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  inquire  regarding  the  nature  of  'he  ne  essity 
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  arc  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."! It  is  true  the  court  had  not  here  in  mind  a  case  of 
technical  martial  law,  yet  the  principle  announced  as  to  the 
supremacy  of  military  rule  upon  occasions  of  necessity  is  of 
the  very  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  charge  of  being  a  spy  2  that  the  language  quoted  was 
used. 

461.  Military  rule  was  not  unknown,  however,  in  New  York 
city  during  chat  great  struggle  for  the  preservation  of  the 
Union.  On  the  13th  of  July,  1863,  ^  serious  and  extensive  riot 
broke  out  there  in  opposition  to  the  draft  lO  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  citv  and  restored  order.  Had  it  not  been  for  this  ener- 
getic use  of  tiie  troops  the  hopes  of  the  rebels  might  have  been 
realized,  the  city  1  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  waich  the 
civil  officers,  including  the  courts,  have  put  forth  to  perform 
their  functions.  Hence  Blackscone'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 
accordmg  to  the  laws  of  the  land.  ^  By  this  wai  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  thmgs,  it  is  extremely  diflficult  to  fix 
upon  any  delinite  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  the  fir^.t  place,  there  may  be  an  irreconcilable 
difference  of  opinion  as  to  whether  or  n^t  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  diffi- 
culties of  the  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  Df  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. 


440  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

dignity,  learning,  and  impartiality  of  that  noble  department  of 
governmen  c — the  judiciary.  It  needs  neitner  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  b}'^  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,"  say;  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  office.  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.  ^ 

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  rebeUion,  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    GOVERNME^TT    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  governm.ent,  or 
diverting  the  course  of  affairs  into  improper  channels,  may  re- 
sult just  as  easily  in  times  of  civil  commotion  from  indispcsiticn 
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  more  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  ;2  that  the 
necessity  must  be  actual  and  present ;  the  invasion  real,  such 
as  effectuall}^  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 
force,  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. 

t.  Johnson  v.  Jones,  44  Illinois,  p.  155.  2.  Ex  parte  Milligan,  4 
Wallace,  p.  2. 


1 


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  went  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  3  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 

1.   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  line  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.  11 2- 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  encourage  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  MILITAEY   GOVEENMENT   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 
Louisiana,  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,  1815,  official  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. 


NATURE   OF   NECESSITY  JUSTIFYING  MARTIAL  LAW.  447 

until  this  object  was  attained  bej'-ond  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  IvOuisiana  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  MILITARY    GOVERNMENT    AND   MARTIAL   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  Louisiana  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  OF   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  8th, 
12th,  and  30th  of  August  and  30th  of  September,  1814,  the 
governor  of  Louisiana  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  hesitafon  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 


450  MILITARY    GOVERNMENT    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  militar3^  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  gccd. 
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  JUSTIFYING  MARTIAL   LAW.         45 1 

the  Annapolis  Department,  in  which  Baltimore  was  situated, 
to  arrest  the  Baltimore  marshal  of  police  and  the  police  board.  1 
The  departnent  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  com.binations 
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  m.ob  or  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  s)^m- 
pathies  which  rendered  the  local  civil  authorities  inim.ical  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.     Theyj^knew 

I.  National  Intelligencer,  May  29-30  and  June  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- 
ways 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    GOVERNMENT    AND   MARTIAL   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, 


NATURE  OF   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  authorities  3f  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  (^Tovernment  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 
ieclare  martial  law. 


CHAPTER  XXII. 
Federal  Authority  to  Institute  Martial  Law. 

497.  The  political  organization  of  the  United  States  en- 
braces  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 
land  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  cc/llapsed 
at  rumor  of  this  show  of  force.  Another  so-called  rebellion 
occurred  in  the  eastern  part  of  the  same  State  in  1799,  but,  in 

I.   Art.  I,  Sec.  8.     2.  Act  May  2,  1792 

4S7 


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-sufhcient 
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.  Jeflferson, 
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  Lincoln  took,  immediately  after 
his  first  inauguration,  the  initiatory  steps  to  put  down  the 

I.  Act  February  28,  1795.  2.  R.  S.,  5298,  1642;  Hildretb,  Vol.  5, 
t..  627. 


FEDERAL  AUTHORITY   TO  IISTSTITDTE   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 
bellion  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  em.ployment  of  the  military 
power  in  all  cases  of  possible  necessity.  Accordingly,  by  act 
approved  April  20,  1871,  it  was  provided  that  whenever  in- 
surrection, domestic  violence,  unlawi"ul  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  military 
force  of  the  nation  be  placed  at  the  President's  disposal  to 
use  at  discretion  for  this  purpDse,  first  warning  the  insurgents 
by  proclamation  to  disperses  There  are  numerous  other 
provisions  of  the  Federal  laws  authorizing  the  employm-cnt  of 
the  military  for  national  purposes,  such  as  to  enforce  the  neu- 
trality 4  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  agamst  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  the  dignity  of  the  United  States.     And  they 

I.  2  Black,  p.  666.  2.  Chap.  25  (R.  S.,  :-,2qS).  3.  Chap.  22  (R.  S., 
5299).  4.  R.  S.,  52S7-S8.  5.  R.  S.,  ^792-  6.  R  S.,  198 1-  7-  R.  S., 
2052,  2062,  21 18,  2147,  2150. 


46o  ]\riLiTARy  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;  refeience  is  heie  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- 
lace,  p.  I  et  seq 


FEDERAL   AUTHORITY   TO   INSTITUTE   MARTIAL  LAW.         46 1 

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.  1 

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  moi  e  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  wTought  by 
armed  resistance  to  the  existing  government.  It  was  so  under- 
stood and  construed  by  the  State  officials.  In  this  condition  of 
things,  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 involved  in  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  limitations  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  p^int 
i^  legally  determined,  or  legally  can  be  inferred,  the  Executive 
Department  of  the  gDvernment  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 


FEDERAL   AUTHORITY   TO   INSTITUTE   MARTIAL  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 
levying  of  war."  1  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  Bollman,  4  Cranch,  p.   126;  U.  S.  v.  Burr,  ibid.,  p.  469. 
2.  U.  S.  V.  Mitchell,  2  Dall.,  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  imder  military  orders  to  the  exclusion  of  civil 
precepts. 

509.  The  case  of  Commonwealth  v.  Blcdgett  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  oft'ence  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. 


FEDERAL   AUTHORITY   TO   INSTITUTE   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.  1 

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. 


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  may  lesort  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  difficulties  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  AUTHORITY   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.  1  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  becam.e  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 86 1,  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,  1S61. 
This  officer  perfectly  understood  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  wiitten  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   AUTHORITY   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  the 
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.  1  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,  civil,  mili- 
tary— which  rendered  the  cessation  of  martial  law  impracticable. 

.520.  By  March,  1863,  the  Union  cause  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- 
cendency. 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. 


470  MILITARY    GOVERNMENT   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  AUTHOKITY   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, which  tliey  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  their 
duty  as  citizens  and  to  the  government  which  protected  them, 
miy  fail  in  mDm^nts  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 
g2  lerosity  of  this  policy.  To  such  extent  was  opposition  carried 
that  newspaper  articles  appeared  intended  to  excite  mutiny 
a  nong  the  soldiers,  both  national  and  State.  To  meet  this  new 
daiger  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  cora,missions  for  trial.  1 

524.  Wnea  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  afifairs  in  Kansas  may  be  cited.     The  people  of  that 

I.  R.  R.  S.,  I.,  Vol.  22,  Part  IT.,  p.  546. 


472  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

State  were  devotedly  loyal.  The  armed  forces  of  the  enemy 
in  few  instances,  and  then  for  the  briefest  periods,  touched  her 
soil.  The  border  land,  however,  adjoining  Missouri  bad  tot 
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,  lobberies, 
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  pui suing 
their  purposes  of  avarice  or  revenge.  It  was  under  these  cir- 
cumstances that  the  general  comm.anding  the  Department  of 
Xansas  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 
competent  to  deal.  It  was  intended  to  put  down  the  crimes 
before  mentioned  as  so  prevalent  along  the  border,  with  a 
strong  hand  and  by  smnmary  process.  For  this  purpose  the 
trial  of  all  prisoners  charged  with  armed  depredations  agaij:£t 
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  ard 
.vicinity  early  in  1861,  with  the  causes  that  rendered  it  neces- 
sary, has  been  already  adverted  to.  In  June,  1863,  when  the 
insurgents  were  actually  within  the  boundaries  of  the  State, 
or  in  large  numbers  menacing  its  invasion,  the  military  com- 
mander again,  but  this  time  in  a  formal  maimer,  established 
m.aitial  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.  1287. 


FEDERAL  AUTHORITY   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.  All  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  en^.ourage  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,!  fully  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  w^it  of  habeas  corpus  and  the  power 
to  declare  martial  law  are  not  widely  different. 

527.  The  War  Department  order  of  August  13,  1862,  issued 
bv  the  President's  directions,  can  be  looked  upon  in  no  other 
nght  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  coun- 
try which  had  protected  and  nurtured  them,  were  seeking 
to  leave  it  in  its  hour  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.  O.,  1862. 


474  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

their  aiders  and  abetters,  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,  i  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  ndlitary  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  hs  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. 

1.  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  subject  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  wiose 
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  corpus,  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  MILITAKT   GOVERNMENT   AND   MARTIAL   LAW. 

enrolled,  drafted,  or  mustered,  or  enlisted  in,  or  belonging  to' 
the  land  or  naval  forces  of  the  United  States,  or  generally  of 
any  offence  against  the  military  or  naval  service. 

531.  By  War  Department  orders  issued  immediately  after- 
wards, all  military  officers  holding  prisoners  undei  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  under  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  act 
was  done  or  omitted  to  be  done,  should  be  held  to  be  within  the 
purview  of  the  act  of  March  3,  1863.  There  were  liable  also  to 
arise  difficulties  as  to  the  evidence  of  authority  under  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 
<^ould  secure  them,  officers  were  thus  amply  protected  against 
judicial  persecution  for  acts  honestly  done  in  furtherance  of  the 
Union  cause  fiom  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- 
cutions 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  peace. 

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. 

53f).  This  was  not  unreasonable.  The  great  principles  at 
stake  during  the  war  should  never  be  lost  sight  of.  They 
should  never  be  compro  nised,  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   GOVERNMENT   AND    MARTIAL   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  )t  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,  1864,  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  Feat  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,  offices,  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  prisoners  gathered  from  all  parts  of  the 
countrv,  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,  i  This  military  governorship  over  the  District 
of  Columbia  continued  until  the  close  of  the  war. 

5^9.  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  19,  1862;  S.  O.  449,  par.  38,  A.  G.  O.,  December  16,  1864. 


480  MILITARY   GOVERNMENT   AND   MARTIAL   LAW, 

tial  law,  which,  in  the  proper  acceptation  of  the  teim,  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 
thioughout  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    estabhshed,    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  MILITARY   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 
raihtary  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  infficted;  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  military  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 


CONGRESSIONAL  MARTIAL  LAW,  483 

martial  law,  tbis  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  majoi  ity  over  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  Under  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  jrrrisprudence,  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  moie 
rigid  provisions.  3 

t.  7  Wallace,  pp.  707-8;  13  WaHace,  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  governtnents  of  the  "rebel  States" 
therein  mentioned  were  not  ^egal,  "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  authoiizing  the 
exercise  of  military  power  over  civilians  are  to  be  construed 
strictly.  It  was  also  true  that  March  2,  1867,  war  had  ceased 
ito  be  flagrant,  and  it  was  therefore  technically  time  of  peace. 

546.  Bi't  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  pei  iod  entei  taincd  by  the  leading 
people  towards  important  principles  of  governmental  policy 
w^hich  those  who  had  saved  the  Union  had  resolved  should 
'be  incorporated  into  the  Constitution.     The  act  of  March  2, 

1867,  was  to  be  construed  in  the  light  of  these  facts.  Techni- 
K:ally  it  might  be  termed  "time  of  peace";  but  in  reality  it  was 
:fai  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  distiict  commanders  with  an  au- 
thority which  gi-eatly  derogated  from  that  of  the  Executive  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. 


CONGRESSIONAL   MARTIAL   LAW.  485 

militaty  distiict  commanders  no  authority  in  matters  of  civil 
government,  they  were  now  in  express  terms  given  such  au- 
thority fully  and  completely,  not  as  formeily  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 
districts  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  States.  The  object  of  this  was  evidently  to  provide 
against  any  future  opinion  of  the  Attorney-General  adverse  ta 
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  )in  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.  ^o. 


486  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  power  of  the  President  to  insti- 
tute temporary  [military]  governments  over  the  insurgent  ter- 
ritory. 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.n  the  close  of  the  rebellion,"  said  the  same  court  in  White 
V.  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 
is  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  true  that  the  condition  of  public 
feeling  in  the  late  insurrectionary  States,  wh'ch  led  to  the  en- 
actment of  the  laws  just  cited,  was  not  such  as  ordinarily  would 
cause  a  nice  regard  to  be  paid  to  the  convenience  and  prejudices 
of  the  people  thus  subjected  to  martial  law.  Yet  we  see  on 
every  hand  military  comnianders  makmg  use  of  the  civil  m- 
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 

Chief- 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 
sought  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  fai  to  go  in  seeking  for  the  reason  of  this 
universal  deference  to  civil  institutions  on  the  part  of  military 
officers.  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, 
would  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,  howevei,  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  declaration- 
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  so- 
ciety is  disturbed  to  a  degree  beyond  the  power  of  civil  govern- 
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- 


CONGRESSIONAL   MARTIAL   LAW.  489 

plished  by  the  civil  judicature,  to  the  extent  absolutely  neces- 
sary, acting  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. 
Martial  Law  in  States  and  Territories. 

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  measures  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 


MARTIAL    LAW    IN    STATES    AND    TERRITORIES.  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- 
ganize! 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  effe:tual  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  employment  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  clause ,  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   GOVERNMENT   AND   MARTIAL   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  measiu-es  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  insurrection,  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  into  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  independ 

4.  Sec.  5300.  R.  S. 


MARTIAL    LAW    IN    STATES    AND    TERRITORIES.  493 

ently  of  State  authorities  or  in  cooperation  with  them ;  or  for 
this  occasion  the  troops  might,  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  efficaciously 
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  officer  entrusted  with  the  management  of  affairs,  calls  for. 
That  martial  law  may  be  a  proper  measure  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  m.artial 

aw  should  occasion  justify  it.  If  the  legislature  be  in  ses- 
sion or  can  be  convened  in  time  to  meet  the  emergency,  he 
might  with  piopriety  await  its  cooperation.  On  the  other 
hand,  the  state  of  fa-^ts  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 
1.  See  also  the  exercise  of  martial  law  in  Colorado,  1904. 


MARTIAL    LAW    IN    STATES    AND    TERRITORIES.  495 

with  dynamite  and  other  high  explosives  for  their  n-.easures  of 
threatened  and  actual  destruction.  The  disaffected  disti  ict  was 
a  mountainous,  is  elated  region.  A  reign  of  terror  soon  was 
inaugurated  which  swept  away  or  through  disaffection  ren- 
dered powerless  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  governor,  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  sympathy  with  the  rioters  or 
through  fear  of  their  vengeance,  we're  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  Coeur  d' Alene  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. 


MARTIAL    LAW    IN    STATES    AND    TERRITORIES.  497 

569.  It  thus  will  be  seen  that  in  the  exercise  of  martial  law 
upon  these  occasions  the  military  acted  in  coopeiation  with,  yet 
a  pait  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.  1 

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  7th  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  MILITAET   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  exercises  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.'599.  3.  R.  R.  S.,  I., 
Vol.  15,  p.  492. 


MARTIAL    LAW    IN    STATES    AKD    TERRITORIES.  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  defiance  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  vState  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  ei  seq.  2  Report  of  Gov- 
ernor of  Washington  Territory  to  Secretary  of  Interior,  1886.  3.  This 
was  a  state  of  war  under  Enghsh  authorities;  see  Regina  v.  Frost,  9  Car 
rington  &  Payne's  Reports,  p.  129. 


500  MILITAKT   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  hand  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  maitial  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 
1861  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  power 
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  CaHfornia.  Thus,  by  virtue  of  his  office  as  military  com- 
rainder  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  pubUc  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  MILITARY   GOVERNMENT   AND    MARTIAL   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 
posse  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'Alene 
regions,  at  the  Homestead,  Pennsylvania,  mills,  and  the  exten- 
sive railroad  depots  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 


MARTI AI     LAW    IN    STATES    AND    TERRITORIES.  503 

change  from  former  and  honored  practices.  Private  citizens 
in  the  disaffected  community  often  will  not  brave  the  resent- 
ment 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  18,  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  cKecuted,  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  demonstiated  that  this  was  the  only  effective 
way  to  employ  the  military.  A  development  of  this  was  the 
e.Kperience  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   GOVERNMENT    AND   MARTIAL   LAW. 

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  mines,  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  of  the  destruction  of  all  government 
save  that  of  the  mob.  An  efficient  substitute  for  the  appar- 
ently obsolete  posse  comitatus  has  been  found. 

580.  In  none  of  the  instances  here  referred  to  was  martial 
law  formally  declared  over  the  theater  of  disturbance.  Yet 
in  all,  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  unworthy  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 
functions,  because  violent  physical  force  and  measures  deterred 
them.*    While,  therefore,  it  was  not  technically  a  state  of  war, 

♦Note.  — In  this  conn^^t'iDi  t\\^  folbjvia^  e^tra^t  froii  the  charge  o 
the  chief-justice  of  Pennsylvania  to  the  grand  jury  in  the  case  of  the  Home- 
stead rioters  is  interesting:     "A  rasre  nub,  collected  upon  the  impulse  of 


506  MILITARY   GOVERNMENT    AND   MARTIAL   LAW. 

the  Status  was  not  wholly  unlike  it.  The  situation  brought 
with  it  new  ofifences,  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  quasi  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  offence  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  tlie  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  keynote.  Obviously,  measures  which 
would  be  justifiable  in  a  serious  insurrection  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  m.eans  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  life.  But  when  a  large  number  of  men  armband  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    TERRITORIES.  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  recovei- 
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  wrought  with  an  evil  intention  or  from  bad  motives. 

58,^  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  v.  Keppel,  2  Wilson,  p.  314;  Sutton  v 
Johnson,  i,  Term  Reports,  p.  548.  See  Chap  XXVII,  post;  full  consid' 
eration  of  this  subject. 


CHAPTER  XXV. 

Administration  of  Martial  Law. 

584.  Martial  law  existing  either  by  proclamation  or  force  of 
circumstances,  an  efficient  system  of  administration  must  be 
maintained.  Otheiwise,  instead  of  amelioiating  the  condition 
of  society  or  being  a  weapon  of  defence  against  an  enemy,  it 
might  prove  to  be  the  reverse.  Kence  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  countries  under 
similar  circumstances.  This  makes  the  administration  of  mar- 
tial law  a  delicate  matter,  because,  first,  the  times  give  birth  to 
many  oflfences  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,"  says 
Finlason,  "is  to  establish  in  the  proclaimed  district  a  state  of 
war  and  a  species  of  rule,  altogether  different  frornand  opposite 
to  that  of  the  common  law  in  every  respect,  wlietber  as  to  (i) 
offences,  (2)  penalties,  (3)  manner  of  procedure,  (4)  power  of 
arrest,  (5)  nature  of  proof,  (6)  mode  of  trial,  r  In  the  extreme 
^^^e  this  is  true.     It^was  so  in  Ireland  in  1798  and  r8o3,   m 

I.  Commentaries  on  Martial  Law,  p.  58. 


ADMIXISTRATION    OF    MARTIAL    LAW.  509 

* 

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  under 
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  grave  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  mimicipal,  the  gi eater  is  the  reason  for  preventing 
it  by  martial  law.     And  if  it  may.not  be  punished  or  prevented 

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  wa?  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  v\as  earnest, 
protracted,  and  characterized  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  important  constitu- 
tional principles,  and  one  affecting  the  rrost  cherished  of  all 
rights,  that  of  personal  liberty. 

I.  War  Powers,  loth  edition,  p.  190.     2.   Art    i.  Sec.  9,  cl.  2. 


ADMINISTRATION   OF    MARTIAL    LAW.  511 

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  writ  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  no* 
propitious  for  it.  His  mind  was  intently  fixed  upon  a  succesp 
ful  issue  of  the  great  struggle  for  the  pieservation  of  the  Unioi' 
This  in  his  view  dwarfed  every  other  consideration.  The  act 
referred  to  strengthened  his  hands  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  tinie 
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  would  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;  and  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   GOVERISTMENT    AND   MARTIAL   LAW. 

preventing  the  consequences  of  their  acts,  i     That  was  the  law 
as  laid  down  in  Luther  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  tne  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  Court  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;  and  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    MARTIAL    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 
foi  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  ofhcer  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  in 
believing  that  they  existed. 

594.  The  remarks  of  the  Supreme  Court  of  Indiana  in  the 
case  of  ^Cormick  v.  Humphrey  evince  a  just  appreciation  of 
the  difficulties  which  sometimes  embarrass  commanders  even 
within  friendly  territory.  1  At  the  same  time  the  principles 
enunciated  are  very  strong  for  the  necessity  that  exists  of  sus- 
taining officers  in  the  exercise  of  mar dal-l aw  power, even  though 
the  danger  that  besets  them,  instead  of  being  open  rebellion,  is 
secret  conspiracy.'  It  was  alleged  that  Humphrey,  during  the 
latter  days  of  the  Civil  War,  was  an  officer  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  militsry  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  securely  kept.  Under  these  circumstances  was 
it  the  duty  of  the  President  or  of  the  officers  in  command  of 
the  military  district  under  him  to  pe  mit  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  always  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  under  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,  1  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  1 8 14.  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. 
*  *  *  *  At  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 
our  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. 


5l6  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  which  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  I^uther  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  Louisiana  Court  seems  strangely  wide  of  the 
mark,  and  indicates  a  surprising  lack  of  appreciation  of  the 
nature  of  that  law.  1 

I.  See  ante,  Sec.  384,  Chap.  XVII.;  post.  Sees.  602,  603,  604. 


ADMINISTRATION   OF    MARTIAL   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  Louisiana  judges  were  right, 
then  the  act  of  the  Rhode  Island  Legislature  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  respdpsibility  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  Louisiana 
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;  iioU.  S.,  p.  633;  18  Wallace, 
p.  510. 


5l8  MILITARY    GOVERNMENT    AND   MARTIAL   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  they  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. 

60 r.  Nor  was  the  conduct  of  the  Louisiana  judiciary  in  181 5 
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  assumed  have  been  jeopardized  or  disregarded 
through  the  necessary  measures  of  that  military  power  which 
they  had  invoked  to  save  them  from  a  rapacious  enemy. 

6o2.  Two  recent  instances  of  the  use  of  organized  militia 
to  preserve  order  and  protect  property  when,  after  long  suf- 
fering, it  had  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  19 

habeas  corpus,  which  the  court  granted,  discharging  the  prisoner 
harmless. 

The  court  remarked  that  the  order  of  the  governor  sending 
t'le  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  MILITARY  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  ofhcer 
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  limit  but  the  necessities  and  exigencies  of  the 
situation,  i 

Tais  case  cleared  the  atmosphere  for  the  Colorado  cases  ^ 
which  in  all  important  respects  were  of  the  same  nature. 

Tne  Governor  of  Colorado  announced  in  some  instances 
that  a  condition  bordering  on  insurrection  and  rebellion  exist- 
ed, aal  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  Court  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  v.  Shortall,    Atlantic   Reporter,    55,  p.   952  et  seq. 
2.   158  U.  S.  Reports,  p.  565. 


ADMINISTRATION   OF    MAETIAL    LAW.  52 1 

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  manner  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. 


52  2  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 


ADln^INISTRATlON    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-eflfective  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  may  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 

I.  In  re  Siebold,  icx)  U.  S.  Reports,  pp.  371-399,  404-422; /n  re 
Neagle,  135  U.  S.  Reports,  pp.  63-5;  In  re  Debs,  158  U.  S.  Reports,  p.  565. 


524  MILITAEY   GOVERNMENT   AND   MARTIAL  IJAW. 

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  "maitial  law"  is  not_^often  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- 
munity as  one  of  the  necessary  safeguards  of  government. 


CHAPTER  XXVI. 
Mart  al-Law  Tribunals. 

605.  As  martial  law  biings  unusual  offences,  it  authorizes 
also  tribunals  suited  to  their  adjudication.  In  his  Principles  of 
Constitutional  lyaw,  Judge  Cooley  remarks  that  offences  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  offences 
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  general  rule  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 
hibunals  has  been  brought  in  question.  "How,"  it  has  been 
asked,  "are  they  to  be  organized?  What  shall  be  the  number 
of  their  msmbers?  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 

1.   P.  137.       2.   Ex  parte  Milligan,  4  Wallace,  p.  83. 

525 


S26  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  conimissions  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 
tmder  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 
I  rom  assault  at  all  hazards  when  there  is  just  reason  to  believe 
that  they  are  in  personal  danger.     No  express  statute  for  this 

I-  135  U.S.,  pp.  63-5. 


MARTIAL-LAW    TRIBUNALS.  52  7 

purpose  is  necessary.     All  requisite  authority  flows  from  the 
nature  of  the  duty  imposed,  i 

608.  The  court  had  come  to  the  same  conclusion  in  otlur 
cases.  2  This  reasoning  is  as  applicable  when  we  seek  to  ascer- 
tain the  authority  for  instituting  summary  military  triburals 
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')9.  A  great  mass  of  traditions  and  recognized  practices 
cluster  around,  attach  to,  and  form  a  most  important  element 
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  centuries. 

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.  11  Howard,  pp.  55^,  i04  U.  S.,  444; 
125  U.  S.,  pp.  273-80.      3.   I  Blackstone,  p.  76 


528  MILITARY   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  which  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 
until  some  statute  shall  change  their  established  principles; 

I.  4  Wallace,  p.  13.      2.  R.  R.  S.,  I.,  Vol.  8,  p.  822. 


MARTIAL-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 
courts-martial.  Regarding  the  latter  Lord  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  ofjone^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-martial.  There  is  this  in  favor  of  the  members  of  the 
martial-law  court :  they  act  under  great  difficulties,  dealing  with 

1.  4  Cranch,  p.  93.       2.  Lives  of  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  dsilin?  evideitly  characterized  their  proceedings,  even 
althou?!  jurisdiction  may  be  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,  il 
has  been  held  by  some  that  martial  law  tribunals  can  take  cog- 
ni'.ance  only  of  causes  arising  within  the  particular  martial-law 
district  where  the  tribunal  sits.  It  is  questionable  if  this  is  the 
true  doct'ine.  n  the  first  place,  all  such  analogies  a  e  forced 
and  unnatu'al.  Tne  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  regulatsd  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  Secfon  1343,  Revised  Statutes,  all  persons  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  o:  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  procedure  or  evidence,  a  would  a 
local  criminal  court  proceeding  in  a  case  regularly  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  MILITAEY   GOVERNMENT   AND  MARTIAL   LAW. 

possession  of  the  legitimate  government?  This,  it  is  believed, 
would  not  be  done.  In  truth,  any  attempt  to  shackle  tribunals 
s;tting  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  essntial 
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  bast  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; 
while  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. 
Othewise,  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 
permitted  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 


MARTIAL-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  mihtary  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  offence  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 such  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  m.aterial  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  m.ore  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  carrying  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  ofhcers  as  to  what  the  custom.s  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 


MARTIAL-LAW    TRIBUNALS.  535 

law  by  the  executive  departments  in  the  performance  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  from  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,  i 

It  took  the  British  authorities  a  good  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  .11,  Sec.  6. 


536  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

styled  the  "military  court"  for  trial  of  cases  beyond  the  civil- 
court  and  court-martial  jurisdiction. 

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  under  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'tei  States;  even  the  97th  Article  of  War,  which  autho  izes 
confinement  ii  the  penitentiary,  doss  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;  In  re  Poe,  Barnwall 
&  Adolphus'  Reports,  Vol.  5.  2.  East  Reports,  p.  306;  Finlason,  Martial 
Law,  p.  104.     3.  Finlason,  Martial  Law,  p.  loi. 


MARTIAL-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  courts  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 


c^-^8  MILITARY    GOVERNMENT    AND    MARTIAL    LAW. 

extend  their  powers  to  any  necessary  degree,  not  only  to  punish 
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  military  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-afifected  loyal  civilians 
anything  to  fear  from  this. 

622.  There  could  not  exist  a  more  erroneous  apprehension 
than  that  military  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,  military  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. 
^  623.  Except  in  the  presence  of  an  enemy  upon  the  theatre 
of  warlike  operations,  or  in  the  immediate  vicinity  thereof,  the 
military  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  miUtary.  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.  16. 


MAETIAL-LAW   TRIBUNALS.  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  in  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 
which  ordinarily  govern  in  courts-martial.  Here,  however,  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,  but  a  means  of  eliciting  truth.  Yet  the  extreme 
nicety  of  the  distinctions  which  characterize  those  rules,  and 
which,  as  a  protection  to  innocence,  is  their  chief  ornament, 
renders  them  inapplicable  for  courts  proceeding  by  more 
summary  methods. 

625.  As  a  general  thing,  military  men  are  but  imperfectly 
versed  in  the  rules  of  evidence  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  discipline  is  sacrificed.  Thenceforward  in  that  country  a 
permanent  r.  ilitary  establishment  is  a  useless  expense.  It 
should  be  abolished,  and  the  nation  depend  for  both  defence 
and  offence  upon  the  armed  levies  drawn  out  from  among  its 
citizens  as  the  exigencies  of  war  require.  Fortunately,  the 
view  that  officers  are  to  be  lawyers  first  and  soldiers  after- 
wards does  not  extensively  prevail.  The  results  which  have 
followed  occasional  attempts  to  carry  this  perverse  idea  into 
practice  have  but  the  more  strongly  demonstrated  its  inherent 
viciousness  and  its  demoralizing  effect  upon  the  military  sys- 
tem. Military  courts  endeavor  to  strike  in  the  most  direct 
way  at  the  merits  of  the  case  before  them.  Understanding 
these,  they  are  then  prepared  to  deal  out  that  measure  of  justice 
which  the  case  demands.  And  it  is  a  fact  which  candid  men 
admit  that  they  quite  as  often  succeed  as  their  more  learned 
coadjutors  of  the  civil  branch  of  the  judiciary.  A  court-martial 
is  not  a  pleasant  tribunal  for  a  guilty  man  to  face,  no  matter 
how  ably  he  may  be  defended;  whereas,  on  the  other  hand, 
the  innocent  may  with  confidence  rely  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  plainest,  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.  I 


MAETIAL-LAW   TRIBUNALS.  54 1 

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 
will  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   GOVERNMENT   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  Civ'l  War  and  the  reconstruction  periods  imme- 
diately following,  there  may  and  do  arise  occasions  when  such 
tribunals  justly  may  be  invoked  to  supply  the  energy  and  cer- 
tainty in  the  administration  of  penal  affairs  which  have  become 
necessary  and  which  cannot  be  furnished  by  the  ordinary 
judicial  system. 


CHAPTER  XXVII. 
Responsibiuty  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 
circumsta.ices,  i'  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  2  under  it  in  accordance  with 
military  usa  ;e.  At  the  ame  time  it  is  recognized  as  a  1  un- 
benling  r  ile  of  law  that  the  exer:ise  of  military  power,  where 
the  rights  o^  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.  464.  2.  Finlason,  Commentaries 
on  Martial  Law,  p.  50.       3.  91  U.  S.  Reports,  p.  712. 

543 


544  MILITARY   GOVERNMENT   AND  MARTIAL  LAW. 

tioti,  or  vindictive  feeling,  he  can  claim  no  exemption,  and 
should  be  allowed  none  under  color  of  his  office,  however  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  Ufe,  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  his 
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  entrurted  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  Lord  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  officeis  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    COMMANDERS — MARTIAL   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.  1  It  was  especially  propei  not  only  that 
an  officei  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  courts  or  juries  or  subordinatf^s. 

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  was  not 
liable  in  damages.  If,  on  the  other  hand,  they  found  that  the 
punishment  was  in  any  manner  or  degree  increased  or  aggra- 
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  tlu'  ne- 
cessity for  sustaining  executive  officers  in  the  performance  of 
their  duties ;  a  court  of  so  elevated  a  station,  with  such  a  sweep 
of  the  legal  horizon,  that  it  can  see  not  only  statutes,  but 
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  found  than  in 
the  opinions  cited. 

I.   II  Johnson (N.  Y.),  p.  113;  Scott's  Digest,  p.  377  (d);  11  Johnson 
(N.  Y.),  p.  160,       2.   12  Howard,  p.  404. 
35— 


546  MILITARY  GOVERNMENT  AND   MARTIAL  LAW. 

635.  That  such  officers  must  be  supported,  so  long  as  they 
remain  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  direct  contact 
with  the  people  and  upholds  the  prestige  and  power  of  govern- 
ment. Impair  the  efficacy  of  the  Executive  Department  and  to 
that  extent  the  energies  of  government  are  paralyzed.  Neither 
a  legislature  nor  a  judiciary  is  a*-  every  instant  of  time  abso- 
lutely essential  to  government ;  in  times  of  great  peril  they  may 
loi  Che  time  be  swept  away,  but  no  government  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  his  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.  jHoward,  46. 


RESPONSIBILITY   OF    COMMANDERS — MARTIAL   LAW.  547 

638.  Early  instances  of  military  commanders  of  United 
States  forces  being  held  liable  for  an  exercise  of  power  over 
civilians,  even  in  face  of  the  enemy,  are  not  wanting.  But  the 
judicial  determinations  in  these  cases  must  be  considered  as 
having  been  reversed  in  more  recent  times. 

639.  Among  the  instances  growing  out  of  the  War  of  1812, 
in  which  the  power  of  officers  to  try  civilians  for  alleged  offences 
against  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  Lakes,  and  which  then  was 
occupied  by  the  American  army  operating  against  Canada. 
He  was  surrendered  into  the  custody  of  Smith,  the  commander 
of  the  ai  my  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 
commander,  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,  8rst,  and  82d  of  the  Rules  and  Articles  of  War  were  in 
force,  r  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  agains-t  whomsoever  should  be  con- 
victed of  holding  correspondence  with  the  enemy  or  giving  him 

I.  Act  approved  April  10,  1806,  Chap.  20. 


548  MILITARY   GOVERNMENT   AND   MARTIAL  LAW. 

intelligence.  The  terms  of  the  law,  which  remain  unchanged 
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,  i777,  denounced  as  traitors  all  persons 
who  should  be  guilty  of  giving  intelligence  or  aid  to  the  enemy,  i 
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  court-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  ai tides  were 
similarly  construed,"  says  Winthrop,  "after  their  re-enactment 
in  1806  appears  from  the  military  ordero  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  'being  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  approved  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.V 


RESPONSIBILITY   OF    COMMANDERS MARTIAL   LAW.  549 

ing  as  spies  in  or  about  the  camps  or  posts  of  the  Army  in  time 
of  war,  if  convicted  thereof  before  either  a  court-martial  or  mili- 
tary commission.  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  com ts-mai tial  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  carrying  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  woidd  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  forces  at  and  in  the 
vicinity  of  Burlington,  Vermont,  near  the  Canadian  border, 
where  war  was  being  actively  prpsecuted,  arrested  McConnell 
as  a  spy,  although  he  was  a  citizen.  He  was  tried  and  ac- 
quitted.    There  were  many  circumstances  apparently  against 


550  MILITARY   GOVERNMENT    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. 

L/Ookel  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  movements.  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  surrounding  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    COMMANDERS MARTIAL    LAW.  551 

injury,  if  he  does  not  exceed  the  scope  of  his  authority  and  is  not 
influenced  by  malice,  corruption,  or  cruelty.  1 

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 foices  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  had  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  traitorously  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.  7  Howard,  p.  89.       2.  4  Wallace,  p.  2. 


552  MILITARY   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  miHtary  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  beUeved  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  1 
Hampton  appears  not  to  have  been  a  striking  display  of  the 
impartiaUty  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  obHgations  to  take  the 
opinions  of  judges,"  says  Mr.  Whiting,  "as  to  the  character 

I.  Lives  of  the  Chief- Justices  of  England,  Lord  Ellenborough,  p.  18 


\ 

I 


RESPONSIBILITY  OF   COMMANDERS — MARTIAL   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."  1 

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,  loth  edition,  p.  173.       2.  Sec.  714. 


554  MILITARY   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  the  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  jn^ge  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."!  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  States  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  comtiitted  in  pursuance  of  a  law  of  the  United  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    COMMANDERS — 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  withdiaw  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;  /wreNeagle. 

Note. — The  casein  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  affinned  by  the  Supreme 
Court  of  the  United  States. 


556  MILITARY  GOVERNMENT  AND   MARTIAL  LAW. 

gress  or  of  treaties  of  the  United  States  according  to  their  ex- 
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,  i  The  ground  was  taken  in  no  unmistakable  manner 
that  a  written  law  was  not  necessa^  ily  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,  pioceeded  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  vSection  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 ,  1 866) .  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  military 
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  being  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  mihtary  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  governmient  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 
ordeilv  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  authoiities  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  intei- 
pose,  that  they  are  not  afterwards  unreasonably  pursued  by 
civil  actions  because  the  measures  they  then  adopted  might 
not  in  all  instances  be  susceptible  of  a  strictly  technical  defence 
under  the  rales  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  respon  Ability  must  rest  upon  those  en- 
trusted with  the  civil  administration  to  determine  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  governm.ent  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, anci  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  liberty 
of  action  is  greater.  It  is  then  for  him  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  acts  when  viewed  in  the  light  of 
the  dangers  surrounding  and  responsibilities  devolving  upon 
him  at  the  time. 

656.  In  Commonwealth  v.  ShortalP  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  necessary  to  that  end  are  law- 
ful. The  situation  of  troops  in  a  riotous  and  insurrectionary 
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,  therefore,  shift  with  the  circumstances,  and  the 
same  standard  of  justification  must  apply  to  both.  The  only 
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. 

Responsibility  of  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- 
sponsibiHty.  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  hesitate  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  i.  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  v. 
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 hardships  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  lawful  commands  of  a  superior  whom  he 
is  bound  to  obey.  A  man  may  be  often  so  placed  in  civil  life, 
and  more  especially  in  military  life,  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; 
in  foro  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,  for  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 

1.   10  Metcalf  (Mass.),  p.  56  et  seq. 
—36 — 


562  MILITARY   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  he 
deems  to  be  illegal.  If  he  disobey  and  his  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  wholly  invol- 
untary. "Except  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  to  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  officer  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  not  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- 
emplary, 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  an  order  published  by  General 
McDowell,  commanding  that  military  department.  The  dis- 
trict was  not  under  martial  law.  Having  been  confined  in 
Fort  Alcatraz  upon  arrest,  where  Captain  Douglass  com- 
manded, McCall,  upon  release,  brought  suit  against  both  these 
military  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-y.  Hovey,  3  Bissell, 
P-  13 


564  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

raent  at  Alcatraz,  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  civiUzation. 
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  rulings. 

665.  The  reasoning  of  the  Supreme  Court  of  the  United 
States  in  Martin  z;.  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  abolishes  distinctions  between  felonies  and 
misdemeanors.  The  same  principle  applies  to  a  soldier  in  the 
performance  of  his  duty  who,  in  dbing  so,  killed  an  escaping 

I.  Hare,  Constitutional  Law,  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.  "1 

667.  To  the  citizen  who  regards  the  maintenance  of  society 
under  the  protection  of  law  as  the  great  end  and  aim  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  sacrifice  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  do-wn  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  disciphne  in  the  Army;  in  this  all  classes, 
particularly  the  civil  community  and  property-ow^ners,  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  in  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.  *  *  *  The  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  2;.  Mobs  (1 


568  iMILlTARY    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  vStudy  of  the  Constitution  of  England,  observes:  "A 
critic  were  rash  who  questioned  the  suggestion  of  a  jurist 
whose  dicta  are  more  weighty  tha'n  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.  Let  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  Hability  only. 
The  soldier  or  policeman  who,  without  full  legal  justification, 

I.  Pp.  205-6.  2.  Keightly  v.  Bell,  4  Foster  &  Finlason's  Reports, 
pp.  763-90. 


RESPONSIBILITY   OF    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- 
stances 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  authority  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  ri<,4it  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  ofilicer  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  their 
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  spread 
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  essential.  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  ac^ted  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  liability  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.  Lowtheri;.  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  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

governing  in  such  cases  is  similar  to  that  appHcable  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  i;.  Roberts,  i  Lord  Raymord's  Reports,  p.  374;  Jones  t;. 
Gwyn,  I  Wilson's  Reports,  p.  91;  Reynolds  r.  Kennedy,  i  Wilson's  Re- 
ports, p.  232.  j 


II 


CHAPTER  XXIX. 
Biij.s  OF  Indemnity. 

677.  It  has  been  the  usage  in  England  to  pass  bills  of  in- 
demnity, after  martial  law  has  ceased,  to  protect  from  prose- 
cution those  who  then  were  called  upon  to  exercise  unusual 
military  authority.  To  some  extent  this  has  been  followed 
in  the  United  vStates. 

678.  Where  martial  law  has  been  carried  into  execution 
pursuant  to  positive  statute,  as  in  Ireland  in  1803  and  Rhode 
Island  in  1842,  or  in  numerous  instances  in  British  islands  and 
colonies,  such  bills  could  only  indemnify  against  prosecution 
for  acts  done  in  exce!;s  of  what  customary  practices  under  mar- 
tial law  would  justify.  The  statutes,  which  either  directly  insti- 
tute martial  law  or  lodge  in  the  chief  executive  authority  to 
exercise  this  power  under  defined  circumstances,  carry  their 
own  immunity  for  acts  done  under  that  law,  provided  he  does 
not  transcend  its  ordinary  limits.  Hence  the  Supreme  Court 
of  the  United  States,  in  referring  to  the  Rhode  Island  rebellion, 
said  that  it  was  a  state  of  war;  and  the  established  government 
by  proclaiming  martial  law  resorted  to  the  rights  and  usages  of 
war  to  maintain  itself  and  overcome  the  unlawful  opposition. 
And  notwithstanding  the  provision  in  the  Federal  Constitu- 
tion,^ securing  the  people  in  their  persons,  houses,  papers,  and 
effects  against  unreasonable  searches  and  seizures,  and  always 
in  any  event  upon  duly  certified  warrants,  the  court  in  its 
opinion  justified  an  ofhcer  who  had  entered  a  house  without 
such  warrant  while  martial  law  prevailed. 

679.  After  the  cessation  of  martial  law  in  Jamaica  in  1865, 
a  bill  of  indemnity  was  passed  by  the  colonial  legislature.  It 
became  an  interesting  question  what- protection  this  act  afforded 

I.   Article  4,  Amendments. 

573 


5  74  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

those  who,  in  the  performance  of  their  duty,  had  been  instru- 
mental in  enforcing  that  law.  Upon  this  point  the  home 
Government  took  the  advice  of  the  law  officers  of  the  crown. 
As  a  result  the  Secretary  of  State  informed  the  colonial  gov- 
ernor that  the  effect  of  the  Indemnity  Act  was  not  to  cover  acts 
of  either  the  governor  or  subordinate  officers,  unless  such  as, 
in  case  of  the  former,  he  might  reasonably  and  in  good  faith 
have  considered  to  be  proper  for  putting  an  end  to  the  insur- 
rection, or  such  as,  in  case  of  subordinates,  had  been  done  under 
and  in  conformity  with  the  orders  of  superior  authority;  or,  if 
done  without  such  orders,  to  have  been  done  in  good  faith  and 
under  a  belief,  reasonably  entertained,  that  they  were  proper 
for  the  suppression  of  the  insurrection  and  for  the  preservation 
of  the  public  peace  on  the  island.  Regarding  measures  taken 
under  military  authority,  the  important  announcement  was 
made  that  the  proclamation  of  martial  law,  under  the  island 
statute,  operated  within  the  declared  district  to  give  as  com- 
plete indemnity  as  the  Indemnity  Act  itself.  As  to  civilians 
who  within  the  proclaimed  district  had  acted  bona  fide  for 
the  suppression  of  the  rebellion — even  without  military  or- 
ders— -they  had  a  protection  secured  to  them  by  the  Indemnity 
Act  which  they  might  not  obtain  from  the  mere  operation  of 
martial  law.  To  acts  beyond  the  proclaimed  district  the  In- 
demnity Act  had  no  applicability. 

680.  Thus  the  principle  of  immunity  for  acts  under  martial 
law  enunciated  by  the  Supreme  Court  of  the  United  States  im- 
pliedly, and  by  the  Enghsh  Government  expHcitly,  was  in  sub- 
stance the  same— namely,  that,  martial  law  having  been  legally 
instituted,  for  acts  which  reasonably  and  with  fair  intendment 
lie  within  the  domain  of  military  customs,  both  officers  and 
men  are  justified,  and  a  bill  of  indemnity  adds  nothing  to  their 
security.     It  is  simply  a  statute  of  repose  as  to  such  cases. 

681.  Under  this  view  of  the  law,  bills  of  indemnity  are  neces- 
sary only  for  the  protection  either  of  those  civilians  who,  how 
worthy  soever  their  motives,  unite  in  martial-law  measures 
without  being  impelled  by  the  coercion  of  military  authority, 


I 


BILLS    OF    INDEMNITY.  575 

or  of  the  military  themselves  when  they  resort  to  excessive 
measures,  not  clearly  warranted  by  the  customs  of  war,  yet 
adopted  in  perfect  good  faith,  for  the  public  interest. 

682.  It  may  be  asked,  Why  the  necessity  for  bills  of  indem- 
nity, if  what  is  lawful  under  the  laws  carries  within  itself  its 
own  immunity  at  such  times?  Why  not  allow  what  is  unlawful 
to  justify  itself  as  best  it  may  when  this  becomes  necessary? 
The  answer  is,  that  such  a  course  would  be  contrary  to  public 
policy,  for  it  would  expose  to  prosecution  those  who,  amidst 
scenes  of  unusual  disturbance  and  danger,  were  obliged  for  the 
public  safety  to  adopt  stringent  measures  of  control,  but  which 
the  law,  strictly  or  perhaps  liberally  construed,  might  not  war- 
rant. Out  of  abundance  of  caution,  therefore,  bills  of  indemnity 
have  sometimes  been  enacted  for  their  protection.  While  in  Eng- 
land this  is  the  usual  practice,  it  has  not  been  considered  neces- 
sary in  the  United  States.  No  bill  of  indemnity  followed  the 
exercise  of  martial  law  in  Rhode  Island  by  legislative,  nor  at 
New  Orleans,  nor  upon  either  occasion  when  martial  law  was 
instituted  in  Washington  Territory  by  executive  authority,  nor 
were  such  bills  ever  thought  of  in  connection  with  the  exercise 
of  martial-law  power  under  the  Reconstruction  Acts  of  1867. 

683.  The  frequency  with  which  martial  law  was  resorted  to 
during  the  Civil  War  by  both  the  Union  and  Confederate  au- 
thorities was  a  striking  feature  of  that  contest.  The  proclama- 
tion of  the  President  of  the  United  States  of  the  24th  of  Septem- 
ber, 1862,  was  sweeping  in  its  terms. ^  It  set  at  naught  the 
usual  safeguards  of  the  civilian  in  time  of  peace,  both  as  regards 
security  of  person  and  property.  This  was  necessary  that  full 
effect  might  be  given  to  the  unusual  powers  assumed  by  the  Pres- 
ident in  the  first  instance,  and  now  conferred  upon  him  by  the 
legislature.  It  was  not  a  time  which  admitted  of  a  wavering 
policy.  Still,  by  carrying  the  President's  orders  into  effect, 
officers  rendered  themselves  liable  to  civil  prosecutions.  It 
therefore  became  necessary  to  protect  them.^  Hence,  the  acts 
before  mentioned  of  May  11,  1866,  and  March  2,  1867,  were 

I.   Ante,  Sec.  528  et  seq.     2.  See  ante,  Sec.  533. 


576  MILITARY   GOVERNMENT    AND    MARTIAL    LAW. 

passed,  "among  other  things,"  to  use  the  language  of  the  Su- 
preme Court  of  the  United  States,  "to  protect  parties  from  lia- 
bihty  to  prosecution  for  acts  done  in  the  arrest  and  imprison- 
ment of  persons  during  the  existence  of  the  rebellion,  under 
orders  or  proclamations  of  the  President,  or  by  his  authority  or 
approval,  who  were  charged  with  participation  in  the  rebelhon, 
or  as  aiders  or  abettors,  or  as  being  guilty  of  disloyal  practices 
in  aid  thereof,  or  any  violation  of  the  usage  or  laws  of  war."  ^ 

684.  In  this  case  a  provost-marshal  had,  pursuant  to  the 
President's  instructions,  as  it  was  maintained,  arrested  without 
warrant  a  civilian  for  persuading  a  soldier  to  desert,  and,  after 
keeping  him  in  confinement  for  several  months,  released  him 
without  trial.  The  officer,  in  his  defence,  set  up  the  President's 
orders  as  his  justification.  The  Supreme  Court  remarked  upon 
this  point  that,  granting  that  the  statutes  were  not  liable  to 
any  constitutional  objection,  still  they  did  not  change  the  rule 
of  pleading  when  the  defence  is  set  up  in  a  special  plea,  or 
dispense  with  the  exhibition  of  the  order  or  authority  upon 
which  the  defendant  relied.  Nor  did  they  cover  all  acts  done 
by  officers  in  the  military  service  of  the  United  States  simply 
because  they  were  acting  under  the  general  authority  of  the 
President  as  commander-in-chief  of  the  armies  of  the  United 
States.  The  acts  of  Congress  only  covered  what  was  done 
under  orders  or  proclamations  issued  by  the  President  or  under 
his  authority;  and  there  was  no  difficulty  in  the  defendant  set- 
ting forth  such  orders  or  proclamations,  whether  general  or 
special,  if  there  were  any  applicable  to  the  case.  And  although 
in  its  decision  the  Supreme  Court  did  not  pass  upon  the  consti- 
tutionality of  the  acts  in  question — that  point  not  being  before 
them — it  is  a  significant  fact  that  these  acts  were  referred  to  in 
terms  of  commendation  as  measures  which  an  exigency  had 
rendered  necessary. 

685.  In  Mitchell  v.  Clark  these  acts  of  Congress  were  again 
carefully  and  fully  considered.     The  case  arose  in  St.   Louis, 

I.  Beani;.  Beckwith,  18  Wallace,  p.  510;  see  also  Beckvvith  v.  Bean, 
8  Otto,  p.  266. 


I 


BILI.S    OF    INDEMNITY.  577 

Missouri,  when  General  Schofield  was  in  command  there.     It 
has  been  before  remarked  that  the  mihtary  commanders  in  that 
department  during  the  Civil  War  resorted  to  forced  contribu- 
tions, under  the  martial-law  power,  from  citizens  whose  loyalty 
was  at  least  doubtful,  for  the  purpose  of  making  less  uncom- 
fortable the  situation  of  Union  refugees  who  had  been  driven 
into  the  city  from  portions  of  the  State  occupied  by  rebels.^ 
Among  others  of  this  description,  who  enjoyed  the  protection 
of  the  Union  Army  only,  as  alleged,  to  plot  against  it  in  the 
dark,  was  Clark,  the  defendant  in  error,  who  either  was  openly 
disloyal  or  strongly  tinctured   with  disloyalty.     Pursuant  to 
the  United  States  military  policy  indicated,  the  rents  due  to 
Clark  on  certain  real  estate  were  seized  upon.     This,  it  will  be 
observed,  was  an  act  which  martial  law  alone  could  justify. 
The  city  where  the  real  estate  was  situate  was,  and  had  always 
been,  within  Federal  control.     The  vState  was  never  declared 
to   be  in   a  condition   of   rebellion.     Military   authority  over 
civilians  and  civil  matters  could  only  be-  exercised  there,  there- 
fore, by  virtue  of  martial-law  power.     After  the  war  Clark 
brought  action  against  the  officer  who  had,  in  obedience  to 
superior  military  authority,  appropriated  his  rents.     The  de- 
fendant set  up  in  defence  the  fourth  and  seventh  sections  of 
the  act  of  March  3,  1863.     The  fourth  section  provided  that  any 
order  of  the  President,  or  issued  pursuant  to  his  authority, 
made  at  any  time  during  the  existence  of  the  rebellion,  should 
constitute  a  sufficient  defence  to  any  action  or  prosecution  for 
acts  done  under  or  by  virtue  of  such  order,  or  any  law  of  Con- 
gress; while  the  seventh  section  limited  the  bringing  all  such 
actions  to  two  years  after  the  passage  of  the  law. 

686.  The  Supreme  Court,  after  citing  the  provisions  of  the 
acts  of  March  3,  1863,  and  of  May  11,  1866,  which  last  greatly 
enlarged  the  indemnifying  scope  of  the  former,  proceeded:* 
"  It  is  not  at  all  difficult  to  discover  the  purpose  of  all  this  legis- 
lation. Throughout  a  large  part  of  the  theatre  of  the  Civil 
War  the  officers  of  the  Army,  as  well  as  many  civil  officers,  were 

I.   Ante,  Sec.  207  et  seq.     2.    no  U.  S.,  p.  633. 
— 37— 


578  MILITARY   GOVERNMENT^AND    MARTIAL   LAW. 

engaged  in  the  discharge  of  very  delicate  duties  among  a  class  of 
people  who,  while  asserting  themselves  to  be  citizens  of  the 
United  States,  were  intensely  hostile  to  the  Government,  and 
were  ready  and  anxious  at  all  times,  though  professing  to  be 
non-combatants,  to  render  every  aid  in  their  power  to  those  en- 
gaged in  active  efforts  to  overthrow  the  Government  and  de- 
stroy the  Union.  For  this  state  of  things  Congress  had  pro- 
vided no  adequate  legislation.  Some  statutes  were  passed 
after  delay  of  a  general  character,  l)ut  it  was  seen  that  many 
acts  had  probably  been  done  by  these  officers  in  defence  of  the 
life  of  the  nation  for  which  no  authority  of  law  could  be  found, 
though  the  purpose  was  good  and  the  act  a  necessity.  The 
act  of  1863  and  the  amendatory  act  of  1866  seem  to  have  well 
considered  the  subject.  By  the  fourth  section  of  the  act  of 
1863  Congress  undoubtedly  intended  to  afford  an  absolute  de- 
fence as  far  as  it  had  power  to  do  so."  The  court  then  sus- 
tained the  defense  of  the  statutor)'^  limitation  to  the  action 
provided  in  the  seventh  section  of  the  act. 

687.  In  Beard  v.  Burts  the  Supreme  Court  held  that  the  acts 
of  March  3,  1863,  and  May  11,  1866,  extended  protection  to  all 
persons  for  acts  they  had  taken  in  subordination  to  the  military 
authorities  engaged  in  conducting  the  war,  and  conferred  upon 
them  the  same  exemption  from  liability  to  suit  which  belonged 
to  the  President,  the  Secretary  of  War,  and  department  com- 
manders. If  these  expressions  of  the  supreme  Federal  tribunal 
did  not  go  to  the  extent  of  sustaining  affirmatively  the  constitu- 
tionality of  the  acts  of  Congress  in  question,  they  did  by  the 
strongest  implication.  The  question  of  constitutionality  was 
not  directly  before  the  court  for  decision;  had  it  been,  the 
language  used  can  leave  scarcely  a  doubt  as  to  what  the  opinion 
of  the  court  upon  this  point  would  have  been. 

688.  We  have  thus  reviewed  the  exercise  of  military  au- 
thority over  the  civil  community,  both  in  foreign  lands  and 
within  our  own  territory.  We  have  seen  that,  rightly  regu- 
lated, the  people  under  free  governments  have  no  just  cause 
of  anxiety  from  this  source.     There  all  authority,  military  and 


BILLS    OF    INDEMNITY.  579 

othe',  is  exercised  subject  to  a  proper  system  of  checks  and 
balances. 

689.  The  purpose  of  a  military  force  is  to  wage  war  against 
the  armed  e  leraies  of  the  State.  That  is  what  oflEicers  are 
trained  for,  the  object  for  which  expensive  armaments  are 
maintained.  That  is  the  duty  in  which  the  soldier  takes 
pride.  Herein  he  finds  the  path  to  fame.  The  rule  by  the 
sword  over  the  civil  community  in  a  district  distracted  either 
by  war  or  les3er  disturbances  has  nothing  attractive  to  the 
militaiy  mind.  It  may  upon  occasion  be  necessary,  but  it 
appears  as  a  necessary  evil  only.  Government  of  some  kind 
is  a  necessity,  and  any  government  is  better  than  none  at 
all.  This,  however,  does  not  make  the  military  duty  moie 
attractive. 

690.  There  is  only  one  reason  why  the  military  is  resorted  to 
foi  governmental  purposes — namely,  that  it  possesses  the  phys- 
ical and  thence  the  moral  power  to  cause  its  mandates  to  be  re- 
spected. It  is  not  only  fair,  but  absolutely  necessary,  that  the 
military  commander  and  his  subordinates  be  sustained  in  the 
reasonable  use  of  authority  they  now  must  exercise.  They 
may  not  with  impunity  abuse  it.  But  what  is  then  done  is  en- 
titled to  generou-5  interpretation  until  evil  intent  be  made  to 
appear.  What  authority  lies  strictly  within  the  jurisdictional 
line  may  not  be  easy  of  speedy  determination;  and  yet  prompt 
action  may  be  requisite  or  direst  consequences  follow.  The  law 
ii  its  regard  for  its  own  dignity  and  perpetuity  on  the  one 
hand,  and  the  rights  of  the  citizen  on  the  other,  is  not  unmind- 
ful of  this  fact.  It  weighs  any  ca'^e  arising  in  the  balance  of 
its  enviionments,  holding  to  stiict  account  heie,  and  making 
charitable  allowances  there,  that  justice  may  fairly,  evenly,  and 
impartially  be  meted  out  to  all — ruler  and  subject  alike.  In 
this  reckoning  the  circumstances  of  peril  as  they  appeared  at 
the  time  operate  with  preponderating  influence;  and  inquiry 
is  directed  to  ascertain,  not  whether  that  was  done  which  the 
law  in  times  of  quiet  and  good'  older  only  will  justify,  but 
whether  the  line  of  conduct  adapted  to  the  facts  as  they  actu- 


580  MILITARY  GOVERNMENT   AND  MARTIAL  LAW. 

ally  existed,  or  reasonably  were  thought  to  exist,  was  pursued 
with  due  solicitation  for  the  rights  of  individuals,  the  needs 
of  society,  the  demands  of  government.  All  these  interests 
are  involved,  and  must  receive  consideiation.  Hence  it  is  ap- 
piopriate  that  indemnity  acts  should  hush  in  the  repose  of 
oblivion  what  in  good  faith  those  in  power  are  thus  impelle  i 
to  do  while  guarding  with  the  strong  military  arm  the  welfaie- 
of  all  concerned. 


APPENDICES. 


APPENDIX  I. 

Headquarters  of  the  Army 
Nationai^  Palace  of  Mexico,  September  17,  1847. 

[General  Orders,  No.  287. J 

The  General-in-Chief  republishes,  with  important  additions,  the  General 
Orders,  No.  20,  of  February  ig,  1847  {declaring  martial  law),  to  govern 
\-j,U  who  mav  be  concerned. 

1.  It  is  still  to  be  apprehended  that  many  grave  offences,  not  provided 
or  in  the  act  of  Congress  "establishing  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  United  States,"  approved  April  10,  1806,  may 
again  be  committed — by,  or  upon,  individuals  of  those  armies  in  Mexico, 
pending  the  existing  war  between  the  two  Republics  Allusion  is  here 
made  to  offences,  any  one  of  which,  if  committed  within  the  United  States 
or  their  organized  Territories,  would,  of  course,  be  tried  and  severely 
punished  by  the  ordinary  or  civil  courts  of  the  land. 

2.  Assassination,  murder,  poisoning,  rape,  or  the  attempt  to  commit 
either;  malicious  stabbing  or  maiming;  malicious  assault  and  battery, 
robbery,  theft;  the  wanton  desecration  of  churches,  cemeteries,  or  other 
religious  edifices  and  fixtures;  the  interruption  of  religious  ceremonies 
and  the  destruction,  except  by  order  of  a  superior  officer,  of  public  or 
private  property,  are  such  offences. 

3.  The  good  of  the  service,  the  honor  of  the  United  States,  and  the 
interest  of  humanity  imperiously  demand  that  every  crime  enumerated 
above  should  be  severely  punished. 

4.  But  he  written  code,  as  above,  commonly  called  the  Rules  and 
Articles  of  War,  does  not  provide  for  the  punishment  of  any  one  of  those 
crimes,  even  when  committed  by  individuals  of  the  Army  upon  the  persons 
or  property  of  other  individuals  of  the  same,  except  in  the  very  restricted 
case  in  the  9th  of  those  articles;  nor  for  like  outrages  committed  by  the 
same  class  of  individuals  upon  the  persons  or  property  of  a  hostile  country, 
except  very  partially  in  the  51st,  5 2d,  and  55th  articles;  and  the  same  code 
is  absolutely  silent  as  to  all  injuries  which  may  be  inflicted  upon  individ- 
uals of  the  Army,  or  their  property,  against  the  laws  of  war,  by  individuals 
of  a  hostile  country 

581 


582  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

5.  It  is  evident  that  the  99th  article,  independent  of  any  reference  to 
the  restriction  of  the  87th,  is  wholly  nugatory  in  reaching  any  one  of  those 
high  crimes. 

6.  For  all  the  offences,  therefore,  enumerated  in  the  second  paragraph 
above,  which  may  be  committed  abroad  in,  by,  or  upon  the  Army,  a 
supplemental  code  is  absolutely  needed. 

7.  That  unwritten  code  is  martial  law,  as  an  addition  to  the  written 
military  code  prescribed  by  Congress  in  the  Rules  and  Articles  of  War,  and 
which  unwritten  code  all  armies  in  hostile  countries  are  forced  to  adopt, 
not  only  for  their  own  safety,  but  for  the  protection  of  unoffending  inhab- 
itants and  their  property  about  the  theaters  of  military  operations  against 
injuries,  on  the  part  of  the  Army,  contrary  to  the  laws  of  war. 

8.  From  the  same  supreme  necessity  martial  law  is  hereby  declared  as. 
a  supplemental  code  in  and  about  all  cities,  towns,  camps,  posts,  hospitals, 
and  other  places  which  may  be  occupied  by  any  part  of  the  forces  of  the 
United  States  in  Mexico ;  and  in  and  about  all  columns,  escorts,  convoys, 
guards,  and  detachments  of  the  said  forces  while  engaged  in  prosecuting 
the  existing  war  in  and  against  the  said  RepubUc,  and  while  remaining 
within  the  same. 

9.  Accordingly,  every  crime  enumerated  in  paragraph  No.  2  above, 
whether  committed — (i)  by  any  inhabitant  of  Mexico,  sojourner,  or  traveler 
therein,  upon  the  person  or  property  of  any  individual  of  the  United  States 
forces,  retainer  or  follower  of  the  same;  (2)  by  any  individual  of  the  said 
forces,  retainer  or  follower  of  the  same,  upon  the  person  or  property  of 
any  inhabitant  of  Mexico,  sojourner  or  traveler  therein;  or  (3)  by  any 
individual  of  the  said  forces,  retainer  or  follower  of  the  same,  upon  the 
psrson  or  property  of  any  other  individual  of  the  same  forces,  retainer 
or  follower  of  the  same,  shall  be  duly  tried  and  punished  under  the  said 
supplemental  code. 

10.  For  this  purpose  it  is  ordered  that  all  offenders,  in  the  matters 
aforesaid,  shall  be  promptly  seized,  confined,  and  reported  for  trial  before 
military  commissions,  to  be  duly  appointed  as  follows : 

11.  Every  military  commission,  under  this  order,  will  be  appointed, 
governed,  and  limited,  as  nearly  as  practicable,  as  prescribed  by  the  65th, 
66th,  67th,  and  97th  of  the  said  Rules  and  Articles  of  War,  and  the  pro- 
ceedings of  such  commissions  will  be  duly  recorded  in  writing,  reviewed, 
revised,  disapproved  or  approved,  and  the  sentences  executed — all,  as 
near  as  may  be,  as  in  the  cases  of  the  proceedings  and  sentences  of  courts- 
martial;  provided,  that  no  military  commission  shall  try  any  case  clearly 
cognizable  by  any  court-martial;  and  provided,  also,  that  no  sentence  of 
a  military  commission  shall  be  put  in  execution  against  any  individual 
belonging  to  this  Army  which  may  not  be,  according  to  the  nature  and 
degree  of  the  offence,   as  established  by  evidence  in   conformity   with 


APPENDIX    I.  5S3 

known  punishments  in  like  cases  in  some  one  of  the  States  of  the  United 
States  of  America. 

12.  The  sale,  waste  or  loss  of  ammunition,  horses,  arms,  clothing,  or 
accoutrements  by  soldiers  is  punishable  under  the  37th  and  38th  Articles 
of  War.  Any  Mexican  or  resident  or  traveler  in  Mexico  who  shall  pur- 
chase of  any  American  soldier  either  horse,  horse  equipments,  arms,  am- 
munition, accoutrements,  or  clothing  shall  be  tried  and  severely  punished 
by  a  military  commission  as  above. 

13.  The  administration  of  justice,  both  in  civil  and  criminal  matters, 
through  the  ordinary  courts  of  the  country,  shall  nowhere  and  in  no  de- 
gree be  interrupted  by  any  officer  or  soldier  of  the  American  forces,  ex- 
cept (i)  in  cases  to  which  an  officer,  soldier,  agent,  servant,  or  follower  of 
the  American  Army  may  be  a  party;  and  (2)  in  political  cases — that  is, 
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  military  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. 

16.  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 
information  of  Mexicans. 


584  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 


APPENDIX   II. 

Instructions  for  the  Government  of  Armies  of  the  United 

States  in   the  Field. 

Section  I. 

Martial   Law. 

1.  A  place,  district,  or  country  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  efifect  c^nd  consequence  of  occupation  or 
conquest. 

The  presence  of  a  hostile  army  proclaims  its  martial  law. 

♦Article  XLII.  Territory  is  considered  occupied  when  it  is  actually 
placed  under  the  authority  0/  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  nd  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-dal  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.  .Vo  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 
STesident  of  the  United  States,  April  11,  1902  (G.  O.,  52,  A.  G.  C,  1902). 


APPENDIX    II.  585 

MilitarylJurisdiction. 

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  local  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. 

t^  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. 

9.  The  functions  of  Ambassadors,  Ministers,  or  other  diplomatic 
agents,  accredited  by  neutral  powers  to  the  hostile  government,  cease, 
so  far  as  regards  the  displaced  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. 

Article  LI.  No  tax  shall  be  collected  except  under  a  written  order  and 
on  the  responsibility  of  a  commander-in-chief. 

This  collection  shall  only  take  place,  as  far  as  possible,  in  accordance 
with  the  rules  in  existence  and  the  assessment  of  taxes  in  force. 

For  every  payment  a  receipt  sliall  be  given  to  the  taxpayer. 

Article  LH.  Neither  requisition  in  kind  nor  services  can  be  demanded 
frotn  communes  or  inhabitants  except  for  the  necessities  of  the  artny  of  occu- 
pation. They  must  be  in  proportion  to  the  resources  of  the  country,  and  of 
such  a  nature  as  not  to  involve  the  population  in  the  obligation  of  taking  part  in 
m.ilitary  operations  against  their  country. 


586  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

These  requisitions  and  services  shall  only  be  demanded  on  the  authority  of 
the  commander  in  the  locality  occupied- 

The  contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  ready 
money;  if  not,  their  receipt  shall  be  acknowledged. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  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  avowedly  intended  to  remain  in  force  in  case  of  war 
between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  individual  gain; 
all  acts  of  private  revenge,  or  connivt^nce  at  such  acts. 

Offences  to  the  contrary  shall  be  severely  punished,  and  especially  so 
if  committed  by  officers. 

12.  Whenever  feasible,  martial  law  is  carried  out  in  cases  of  indi- 
vidual offenders  by  military  courts;  but  sentences  of  death  shall  be  ex- 
ecuted only  with  the  approval  of  the  Chief  Executive,  provided  the  urgency 
of  the  case  does  not  require  a  speedier  execution,  and  then  only  with  the 
approval  of  the  chief  commander. 

13.  Military  jurisdiction  is  of  two  kinds:  first,  that  which  is  con- 
ferred and  defined  by  statute;  second,  that  which  is  derived  from  the 
common  law  of  war.  Military  offences  under  the  statute  law  must  be  tried 
in  the  manner  therein  directed;  but  military  offences  which  do  not  come 
within  the  statute  must  be  tried  and  punished  under  the  common  law  of 
war.  The  character  of  the  courts  which  exercise  these  jurisdictions  de- 
pends upon  the  local  laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  Rules  and  Articles  of 
War,  or  the  jurisdiction  conferred  by  statute  on  courts-martial  are  tried 
by  military  commissions. 

M ilita ry  Necessity . 

14.  Military  necessity,  as  understood  by  modern  civilized  nations, 
consists  in  the  necessity  of  those  measures  which  are  indispensable  for 
securing  the  ends  of  the  war,  and  which  are  lawful  according  to  the  modern 
law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or  limb 
of  armed  enemies,  and  of  other  persons  whose  destruction  is  incidentally 
unavoidable  in  the  armed  contests  of  the  war;  it  allows  of  the  capturing 
of  every  armed  enemy,  and  every  enemy  of  importance  to  the  hostile 
government,  or  of  peculiar  danger  to  the  captor;  it  allows  of  all  destruction 
of  property,  and  obstruction  of  the  ways  and  channels  of  traffic,  travel,  or 
communication,  and  of  all  withholding  of  sustenance  or  means  of  life 
from  the  enemy;  of  the  appropriation  of  whatever  an  enemy's  country 
affords  necessary  for  the  subsistence  and  safety  of  the  army,  and  of  such 


APPENDIX  II.  587 

^deception  as  does  not  involve  the  breaking  of  good  faith  either  positively 
j)ledged,  regarding  agreements  entered  into  during  the  war,  or  supposed 

by  the  modern  law  of  war  to  exist.  Men  who  take  up  arms  against  one 
another  in  public  war  do  not  cease  on  this  account  to  be  moral  beings, 

responsible  to  one  another  and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  in- 
fliction of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of  maiming 
or  wounding  except  in  fight,  nor  of  torture  to  extort  confessions.  It  does 
not  admit  of  the  use  of  poison  in  any  way,  nor  of  the  wanton  devasta- 
tion of  a  district.  It  admits  of  deception,  but  disclaims  acts  of  per- 
fidy; and,  in  general,  military  necessity  does  not  include  any  act  of 
hostility  which  makes  the  return  to  peace  unnecessarily  difficult. 

17.  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. 

ArticIvE  XXII.  The  right  of  belligerents  to  adopt  means  of  injuring 
the  enemy  is  not  unlimited. 

18.  When  a  commander  of  a  besieged  place  expels  the  noncombatants 
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 
on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  bombard  a  place,  so  that  the  noncombatants,  and  especially 
the  women  and  children,  may  be  removed  before  the  bombardment  com- 
mences. But  it  is  no  infraction  of  the  common  law  of  war  to  omit  thus 
to  inform  the  enemy.     Surprise  may  be  a  necessity. 

Article  XXVI.  The  commander  of  an  attacking  force,  before  com- 
mencing a  bombardment,  except  in  the  case  of  an  assault,  should  do  all  he  can 
to  warn  the  authorities. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign  nations 
or  governments.  It  is  a  law  and  requisite  of  civilized  existence  that  men 
live  in  political,  continuous  societies,  forming  organized  units,  called 
states  or  nations,  whose  constituents  bear,  enjoy,  and  suffer,  advance  and 
retrograde  together,   in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as 
one  of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is  sub- 
jected to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced  during  the  last  cen- 
turies, so  has  likewise  steadily  advanced,  especially  in  war  on  land,  the 
distinction  between  the  private  individual  belonging  to  a  hostile  country 
and  the  hostile  country  itself,  with  its-  men  in  arms.  The  principle  has 
been  more  and  more  acknowledged  that  the  unarmed  citizen  is  to  be 


588  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

spared  in  person,  property,  and  honor  as  much  as  the  exigencies  of  war 
will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried  off 
to  distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed  in 
his  private  relations  as  the  commander  of  the  hostile  troops  can  afford 
to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues  to 
be  with  barbarous  armies,  that  the  private  individual  of  the  hostile  country- 
is  destined  to  suffer  every  privation  of  liberty  and  protection,  and  every 
disruption  of  family  ties.  Protection  was,  and  still  is  with  uncivilized 
people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descendants 
in  other  portions  of  the  globe,  protection  of  the  inoffensive  citizen  of  the 
hostile  country  is  the  rule;  privation  and  disturbance  of  private  relations 
are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrates  and  civil 
officers  of  the  hostile  country  to  take  the  oath  of  temporary  allegiance  or 
an  oath  of  fidelity  to  their  own  victorious  government  or  rulers,  and  they 
may  expel  every  one  who  declines  to  do  so.  But  whether  they  do  so  or 
not,  the  people  and  their  civil  officers  owe  strict  obedience  to  them  as 
long  as  they  hold  sway  over  the  district  or  country,  at  the  peril  of  their 
lives. 

Article  XLV.  Any  pressure  on  the  population  of  occupied  territory- 
to  take  the  oath  to  the  hostile  power  is  prohibited. 

Retaliation. 

27.  The  law  of  war  can  no  more  wholly  dispense  with  retaliation, 
than  can  the  law  of  nations,  of  which  it  is  a  branch.  Yet  civilized  nations 
acknowledge  retaliation  as  the  sternest  feature  of  war.  A  reckless  enemy 
often  leaves  to  his  opponent  no  other  means  of  securing  himself  against 
the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of 
mere  revenge,  but  only  as  a  means  of  protective  retribution,  and  more- 
over, cautiously  and  unavoidably;  that  is  to  say,  retaliation  shall  only  be 
resorted  to  after  careful  inquiry  into  the  real  occurrence,  and  the  character 
of  the  misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  farther 
and  farther  from  the  mitigating  rules  of  regular  war,  and  by  rapid  steps 
leads  them  nearer  to  the  internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  exist- 
ence, at  one  and  the  same  time,  of  many  nations  and  great  governments. 
related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition;  war  is  the  exception.     The  ultimate- 
object  of  all  modern  war  is  a  renewed  state  of  peace. 


APPEXDIX    II.  589 

The  more  vigorously  are  wars  pursued,  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  co-existence  of  modern  nations, 
and  ever  since  wars  have  become  great  national  wars,  war  has  come  to  be 
acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain  great  ends 
of  state,  or  to  consist  in  defence  against  wrong;  and  no  conventional  re- 
striction of  the  modes  adopted  to  injure  the  enemy  is  any  longer  admitted ; 
but  the  law  of  war  imposes  many  limitations  and  restrictions  on  principles 
of  justice,  faith,  and  honor. 

Section  II. 

Public  and  Private  Property  of  the  Enemy. 

31.  A  victorious  army  appropriates  all  public  money,  seizes  all 
public  movable  property  until  further  direction  by  its  government,  and 
sequesters  for  its  own  benefit  or  that  of  its  government  all  the  revenues 
of  real  property  belonging  to  the  hostile  government  or  nation.  The  title 
to  such  real  property  remains  in  abeyance  during  military  occupation,  and 
until  the  conquest  is  made  complete. 

Article  LIII.  An  army  of  occupation  can  only  take  possession  of  the 
•cash,  funds,  and  property  liable  to  requisition  belonging  strictly  to  the  state, 
depots  of  arms,  means  of  transport,  stores  and  supplies,  and,  generally,  all 
movable  property  of  the  state  which  may  be  used  for  fuilitary  operations. 

Railway  plant,  land  telegraphs,  telephones,  steamers  and  other  ships, 
.apart  from  cases  governed  by  maritime  law,  as  well  as  depots  of  arms  and, 
generally,  all  kinds  of  war  material,  even  though  belonging  to  companies  or 

■  to  private  persons,  are  likewise  material  which  may  serve  for  military  opera- 
tions, but  they  must  be  restored  at  the  conclusion  of  peace,  and  indemnities 
paid  for  them. 

Article  LV.  The  occupying  state  shall  only  be  regarded  as  admin- 
istrator and  usufructuary  of  the  public  buildings,  real  property,  forests,  and 
agricultural  works  belonging  to  the  hostile  state,  and  situated  in  the  occupied 
country.     It  must  protect  the  capital  of  these  properties,  and  administer  it 

■  according  to  the  rules  of  usufruct. 

Article  LVI.  The  property  of  the  communes,  that  of  religious,  char- 
itable, and  educational  institutions,  and  those  of  arts  and  science,  even  when 
•state  property,  shall  be  treated  as  private  property. 

All  seizure  of  and  destruction  or  intentional  damage  done  to  such  insti- 
tutions, to  historical  monuments,  works  of  art  or  science,  is  prohibited,  and 
■should  be  made  the  subject  of  proceedings. 

32.     A  victorious  army,  by  the  martial  power  inherent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  martial  power  extends,  the 
relations  which  arise  from  the  services  due,  according  to  the  existing  laws 
of  the  invaded  country,  from  one  citizen,  subject,  or  native  of  the  same 
■.to  another. 


590  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty  of 
peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  ta 
be  a  serious  breach  of  the  law  of  war — to  force  the  subjects  of  the  enemy 
into  the  service  of  the  victorious  government,  except  the  latter  should 
proclaim,  after  a  fair  and  complete  conquest  of  the  hostile  country  or 
district,  that  it  is  resolved  to  keep  the  country,  district,  or  place  per- 
manently as  its  own  and  make  it  a  portion  of  its  own  country. 

ArticIvE  XLIV.  Any  compulsion  of  the  population  of  occupied  terri- 
tory to  take  part  in  military  operations  against  its  own  country  is  prohibited. 

34.  As  a  general  rule,  the  property  belonging  to  churches,  to  hos- 
pitals, or  other  establishments  of  an  exclusively  charitable  character,  to 
establishments  of  education,  or  foundations  for  the  promotion  of  knowl- 
edge, whether  public  schools,  universities,  academies  of  learning,  or  ob- 
servatories, museums  of  the  fine  arts,  or  of  a  scientific  character — such 
property  is  not  to  be  considered  public  property  in  the  sense  of  paragraph 
31 ;  but  it  may  be  taxed  or  used  when  the  public  service  may  require  it. 

Article  XLVI.     Family  honors  and  rights,  individual  lives  and  pri- 
vate property,  as  well  as  religious  convictions  and  liberty,  must  be  respected. 
Private  property  cannot  be  confiscated. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or  precious 
instruments,  such  as  astronomical  telescopes,  as  well  as  hospitals,  must 
be  secured  against  all  avoidable  injury,  even  w^hen  they  are  contained  in 
fortified  places  whilst  besieged  or  bombarded. 

Article  XXVII.  In  sieges  and  bombardments  all  necessary  steps 
should  be  taken  to  spare,  as  far  as  possible,  edifices  devoted  to  religion,  art, 
science,  and  charity,  hospitals,  'and  places  where  the  sick  and  wounded  are 
collected,  provided  they  are  not  used  at  the  same  tim,e  for  military  purposes. 

The  besieged  should  indicate  these  buildings  or  places  by  some  particular 
and  visible  signs,  which  should  previously  be  notified  to  the  assailants. 

36.  If  such  works  of  art,  libraries,  collections,  or  instruments  belong- 
ing to  a  hostile  nation  or  government  can  be  removed  without  injury, 
the  ruler  of  the  conquering  state  or  nation  may  order  them  to  be  seized 
and  removed  for  the  benefit  of  the  said  nation.  The  ultimate  ownership 
is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away,  if  captured  by  the  armies 
of  the  United  States,  nor  shall  they  ever  be  privately  appropriated,  or 
wantonly  destroyed  or  injured. 

Protection  of  Persons,  and  Especially  of  Women. 

2,1.  The  United  States  acknowledge  and  protect,  in  hostile  countries 
occupied  by  them,  religion  and  morality;  strictly  private  property;  the 
persons  of  the  inhabitants,  especially  those  of  women;  and  the  sacred- 


APPENDIX    II.  591 

■ness  of  domestic  relations.  Offences  to  the  contrary  shall  be  rigorously 
punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader 
to  tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet  soldiers, 
or  to  appropriate  property,  especially  houses,  lands,  boats  or  ships,  and 
churches,  for  temporary  and  military  uses. 

Article  XLVII.     Pillage  is  formally  prohibited. 

38.  Private  property,  unless  forfeited  by  crimes  or  by  offences  of 
the  owner,  can  be  seized  only  by  way  of  military  necessity,  for  the  support 
or  other  benefit  of  the  army  or  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  receipts 
to  be  given,  which  may  serve  the  spoliated  owner  to  obtain  indemnity. 

Article  XXVIII.  The  pillage  of  a  town  or  place,  even  when  taken  by 
assault,  is  prohibited. 

39.  The  salaries  of  civil  officers  of  the  hostile  government  who  re- 
main in  the  invaded  territory,  and  continue  the  work  of  their  office,  and 
can  continue  it  according  to  the  circumstances  arising  out  of  the  war — 
such  as  judges,  administrative  or  police  officers,  officers  of  city  or  com- 
munal governments — are  paid  from  the  public  revenue  of  the  invaded 
territory,  until  the  military  government  has  reason  wholly  or  partially 
to  discontinue  it.  Salaries  or  incomes  connected  with  purely  honorary 
titles  are  always  stopped. 

Article  XLVIII.  //,  itt  the  territory  occupied,  the  occupant  collects 
■the  taxes,  dues,  and  tolls  imposed  for  the  benefit  of  the  State,  he  shall  do  it,  as 
far  as  possible,  in  accordance  with  the  rules  in  existence  and  the  assessm,ent 
in  force,  and  will  in  consequence  be  bound  to  defray  the  expenses  of  the  ad- 
ministration of  the  occupied  territory  on  the  same  scale  as  that  by  which  the 
legitimate  government  was  bound. 

Article  XLTX.  //,  besides  the  taxes  mentioned  in  the  preceding  ar- 
ticle, the  occupant  levies  other  money  taxes  in  the  occupied  territory,  this  can 
only  be  for  military  necessities  or  the  administration  of  such  territory. 

40.  There  exists  no  law  or  body  of  authoritative  rules  of  action  be- 
tween hostile  armies,  except  that  branch  of  the  law  of  nature  and  nations 
which  is  called  the  law  and  usages  of  war  on  land. 

Article  XXV.  The  attack  or  bombardment  of  towns,  villages,  habi- 
tations, or  buildings  which  are  not  defended  is  prohibited. 

41.  All  municipal  law  of  the  ground  on  which  the  armies  stand,  or 
of  the  countries  to  which  they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 

Article  XLIII.  The  authority  of  the  legitimate  power  having  actually 
passed  into  the  hands  of  the  occupant,  the  latter  shall  take  all  steps  in  his 
power  to  re-establish  and  insure,  as  far  as  possible,  public  order  and  safety, 
while  respecting,  unless  absolutely  prevented,  the  laws  m  force  in  the  country. 


59: 


MILITARY    GOVERNMENT    AND    MARTIAL    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  *^he  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  ^the  military 
forces  of  the  United  States,  such  psrson  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^the  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  offence. 

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  l^e  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 


fi 


APPENDIX    11.  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. 

SECTlO-r^   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  0}  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  cotiditions : 

1.  To  be  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  ivar. 
In  countries  where  fnilitia  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  MILITARY    GOVERNMENT    AND    MARTIAL   LAW. 

belligerent  ground,  and  if  unprovided  with  a  safe-conduct  granted  by  the 
captor's  government,  prisoners  of  war. 

ARTICI.E  XIII.  Individuals  who  follow  an  army  wUhout  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  fit  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  liy  the  enemy,  or  of  the  whole  country,  at  the  approach  of  a 
hostile  army,  rise,  under  a  duly  authorized  levy,  en  masse  to  resist  the 
invader,  they  are  now  treated  as  public  enemies,  and,  if  captured,  arc 
prisoners  of  war. 

Article  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  1.,  shall  be  regarded  a  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  army,  rise  against  it,  they  are  violators  of  the  laws 
of  war  and  are  not  entitled  to  their  protection. 

5.3.  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  allov.'ed 
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  lie  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  m^y  be  ad- 
mitted to  the  places  of  internment  for  the  distribution  of  relief,  as  also  to  the 
halting- places  of  repatriated  prisoners,  if  furnished  with  a  personal  permit 
by  the  military  authorities,  and  on  giving  an  engagement  in  writing  to  comply- 
with  all  their  regulations  for  order  and  police. 


APPENDIX  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  sooji  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  aimy,  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  That  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  ha^•e  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  figTit  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  MILITARY  GOVERNMENT  AND  MARTIAL  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  nationaUty,  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  of  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  destruction  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. 

60.  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. 

ArticIvE  XXIII.  Besides  the  prohibitions  provided  by  special  con- 
ventions, it  is  especially  prohibited — 

(a)  To  employ  poison  or  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  -he  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  ]]'ar  (Trejtmcnt  of). 

Article  IV.  Prisoners  of  war  are  in  'he  poiver  of  the  hostile  govern- 
ment, hut  not  in  that  of  the  individuals  or  corps  who  captured  them. 

The.'  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms-,  horses,  and  military  p.-'pers, 
retnain  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- 
ligoents  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  all 
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  inteiestel. 

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  ar 
duties  of  entry  and  others,  as  well  as  of  payments  for  carriage  by  the  govern- 
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. 

Artici^E  XYII.  Officers  taken  prisoners  may  receive,  if  necessary,  the 
full  pay  allowed  them  in  this  position  by  their  country'?  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  1)y  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  cajitor's  govern- 
ment, according  to  their  rank  and  condition. 

Article  VI.  Ihe  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  7vork  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  prisoners  of  war  have 
fallen  is  bound  to  maintain  them. 


APPENDIX  JI.  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  lias  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  they  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  with  regard  to  ihe  sick 
and  wounded  are  governed  by  the  Geneva  Convention  of  the  22nd  August, 
1864,  subject  to  any  modifications  which  may  be  introduced  into  it. 


6oO  l^IILITARY   GOVERNMENT    AND    MAETIAL   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  uniform  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  Prozvkrs,  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. 

Wai'-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- 


I 


APPEJ^DIX  II.  60J 

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-Conduct. 

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  military  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  declined.  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  i/, 
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  be  punished  without 
previous  trial. 


6o2  MILITARY   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  ditizen,  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,  unauthoriised  by  the  military 
commander,  gives  information  of  any  kind  to  the  enemy,  or  holds  inter- 
course with  him. 

91.  The  war-traitor  is  always  severely  punished.  If  his  offence 
consists  in  betraying  to  the  enemy  anything  concerning  the  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- 
C|uered  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  cannot  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  voluntarily  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  permits,  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  captm-ed,  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  captiu-ed,  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. 

1 01.  While  deception  in  war  is  admitted  as  a  just  and  necessary 
means  of  hostility,  and  is  consistent  with  honorable  warfare,  the  common 
law  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,  con^  erning  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  nmnber — 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 
orde  r  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  relea&ed  prisoners,  and  may  be  good  cause  for  refusing  to  re- 
lease such  prisoners. 


604  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

Article  IX.  Every  prisoner  of  war,  if  questioned,  is  bound  to  declare 
his  true  name  and  rank,  and  if  he  disregard'!  this  rule,  he  is  liable  to  a  curtail- 
ment of  the  advantages  accorded  to  the  prisoners  of  -war  of  his  class. 

1 08.  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  higliest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to 
both  belligerents.  Tf  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  must  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 

vSo  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is  its 
sacredness,  that  while  its  abuse  is  an  especially  heinous  oflence,  great 
caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer  of  a  flag 
of  truce  as  a  spy. 

ArTtclB  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. 

Sectio.n  VII. 
The  Parole. 

iTQ.  Prisoners  of  war  may  be  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

Article  X.  Prisoners  of  war  may  be  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,  soupulously  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  be  forced  to  accept  his  liberty 
on  parole;  similarly  the  hostile  government  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 
belligerents. 

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  permitted,  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  aUies  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  belligerents  unconnected  with 
the  paroling  belligerents,  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. 
A  rmistice — Ca  p  itulation . 

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 
locahties  onlv. 


6o8  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

An  armistice  may  be  concluded  for  a  definite  time ;  or  for  an  indefinite 
time,  during  which  either  belUgerent  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  belligerent  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  belUgerents  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. 

Article  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  b)^  the  hostile  armies  shall  be  allowed,  if 
any. 

If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as  during 
actual  hostilities. 

Article  XXXIX.  It  is  for  the  contracting  parties  to  settle,  in  tlie 
terms  of  the  armistice,  wliat  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  demolish,  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  MILITARY   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. 

1 50.  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  leg.^timate  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,  whether  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,  exchanging  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  wth 
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  government,  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  classified  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  fidelity  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. 

Treaso7i. 

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 : 

Articl,E  LIV.  The  plant  of  railways  coming  from  neutral  states, 
whether  the  property  of  those  states,  or  of  companies,  or  of  private  persons, 
sfiall  be  sent  back  to  them  as  soon  as  possible. 

Artici<E  LVII.  a  neutral  state  which  receives  in  its  territory  troops 
belonging  to  the  belligerent  armies  shall  intern  them,  as  far  as  possible,  at  a 
distance  frotn  the  theatre  of  war. 

It  can  keep  them  in  camps,  and  even  confine  them  in  fortresses  or  locations 
assigned  for  this  purpose. 

It  shall  decide  whether  officers  may  be  left  at  liberty  on  giving  their  parole 
that  they  will  not  leave  the  neutral  territory  without  authorization. 

Article  LVIII.  Failing  a  special  convention,  the  neutral  state  sliall 
supply  the  interned  with  the  food,  clothing,  and  relief  required  by  humanity. 


6l2  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

At  the  conclusion  of  peace,  the  expenses  caused  by  the  internmert'  sJmll 
be  made  good. 

Article  LIX.  A  neutral  state  may  authorize  the  passage  through  its 
territory  of  wounded  or  sick  belonging  to  the  belligerent  armies,  on  condition 
that  the  trains  bringing  them  slmll  carry  neither  combatants  nor  war  material. 
In  such  a  case,  the  neutral  state  is  bound  to  adopt  such  measures  of  safety 
and  control  as  may  be  necessary  for  the  purpose. 

Wounded  and  sick  brought  under  these  conditions  into  neutral  territory 
by  one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be  guarded 
by  the  neutral  state,  so  as  to  insure  their  not  taking  part  again  in  the  m,ilitary 
operations.  The  same  duty  shall  devolve  on  the  neutral  state  with  regard  to 
rwoundzd  or  sick  of  the  other  army  who  may  be  committed  to  its  care. 

Article  LX.  The  Geneva  Convention  applies  to  sick  and  wounded 
interned  in  neutral  territory. 

[General  Orders,  No.  3.] 

HBAD2UARTERS   OF   THE    ArMY, 

AdJutant-General's  Office, 

Washington,  January  14,  1892. 
I.  The  Convention  between  the  United  States,  Baden,  Switzer- 
land, Belgium,  Denmark,  Spain,  France,  Hesse,  Italy,  Netherlands,  Portu- 
gal, Prussia,  Wurtemberg,  Sweden,  Greece,  Great  Britain,  Mecklenburg- 
Schwerin,  Turkey,  Bavaria,  Austria,  Russia,  Persia,  Roumania,  Salvador, 
Montenegro,  Servia,  Bolivia,  Chili,  Argentine  Republic,  and  Peru,  with 
additional  articles :  For  the  amelioration  of  the  wounded  in  armies  in  the 
field;  concluded  August  22,  1864;  acceded  to  by  the  President  March  i, 
1882;  accession  concurred  in  by  the  Senate  March  16,  1882;  proclaimed 
as  to  the  original  Convention,  but  with  reserve  as  to  the  additional  articles, 
July  26,  1882;  commonly  known  as  the  Geneva  Convention,  is  as  follows: 

Original  Convention. 

Article  I.  Ambulances  and  military  hospitals  shall  be  acknowledged 
to  be  neuter,  and  as  such  shall  be  protected  and  respected  by  belligerents 
so  long  as  any  sick  or  wounded  may  be  therein. 

Such  neutrality  shall  cease  if  the  ambulances  or  hospitals  should  be 
held  by  a  military  force. 

Art.  II.  Persons  employed  in  hospitals  and  ambulances,  comprising 
the  staff  for  superintendence,  medical  service,  administration,  transport 
of  wounded,  as  well  as  chaplains,  shall  participate  in  the  benefit  of  neu- 
trality, whilst  so  employed,  and  so  long  as  there  remain  any  wounded  to 
bring  in  or  to  succor. 

Art.  III.  The  persons  designated  in  the  preceding  article  may,  even 
after  occupation  by  the  enemy,  continue  to  fulfill  their  duties  in  the 


APPENDIX  II.  613 

hospital  or  ambulance  which  they  serve,  or  may  withdraw  in  order  to  re- 
join the  corps  to  which  they  belong. 

Under  such  circumstances,  when  these  persons  shall  cease  from  their 
functions,  they  shall  be  delivered  by  the  occupying  army  to  the  outposts 
of  the  enemy. 

Art.  IV.  As  the  equipment  of  miUtary  hospitals  remains  subject  to 
the  laws  of  war,  persons  attached  to  such  hospitals  cannot,  in  withdraw- 
ing, carry  away  any  articles  but  such  as  are  their  private  property. 

Under  the  same  circumstances  an  ambulance  shall,  on  the  contrary, 
retain  its  equipment. 

Art.  V.  Inhabitants  of  the  country  who  may  bring  help  to  the 
wounded  shall  be  respected,  and  shall  remain  free.  The  generals  of  the 
belligerent  powers  shall  make  it  their  care  to  inform  the  inhabitants  of 
the  appeal  addressed  to  their  humanity,  and  of  the  neutrality  which 
will  be  the  consequence  of  it. 

Any  wounded  man  entertained  and  taken  care  of  in  a  house  shall  be 
considered  as  a  protection  thereto.  Any  inhabitant  who  shall  have  enter- 
tained wounded  men  in  his  house  shall  be  exempted  from  the  quartering 
of  troops,  as  well  as  from  a  part  of  the  contributions  of  war  which  may 
be  imposed. 

Art.  VI.  Wounded  or  sick  soldiers  shall  be  entertained  and  taken 
care  of,  to  whatever  nation  they  may  belong. 

Commanders-in-chief  shall  have  the  power  to  deliver  immediately  to 
the  outposts  of  the  enemy  soldiers  who  have  been  wounded  in  an  engage- 
ment, when  circumstances  permit  this  to  be  done,  and  with  the  consent 
of  both  parties. 

Those  who  are  recognized,  after  their  wounds  are  healed,  as  incapable 
of  serving,  shall  be  sent  back  to  their  country. 

The  others  may  also  be  sent  back,  on  condition  of  not  again  bearing 
arms  during  the  continuance  of  the  war. 

Evacuations,  together  with  the  persons  under  whose  directions  they 
take  place,  shall  be  protected  by  an  absolute  neutrality. 

Art.  VII.  A  distinctive  and  uniform  flag  shall  be  adopted  for  hos- 
pitals, ambulances,  and  evacuations.  It  must,  on  every  occasion,  be 
accompanied  by  the  national  flag.  An  arm -badge  (brassard)  shall  also 
be  allowed  for  individuals  neutralized,  but  the  delivery  thereof  shall  be 
left  to  military  authority. 

The  flag  and  the  arm-badge  shall  bear  a  red  cross  on  a  white  ground. 

Art.  VIII.  The  details  of  execution  of  the  present  Convention  shall 
be  regulated  by  the  commanders-in-chief  of  belligerent  armies,  according 
to  the  instructions  of  their  respective  governments,  and  in  conformity 
with  the  general  principles  laid  down  in  this  Convention. 


6l4  MILITARY    G'^.ViJltN.^ENT    AND   MARTIAL    LAW. 

Additional  Articles. 

Article  I.  The  persons  designated  in  Article  II.  of  the  Convention 
shall,  after  the  occupation  by  the  enemy,  continue  to  fulfiH  their  duties, 
according  to  their  wants,  to  the  sick  and  wounded  in  the  ambulance  or 
the  hospital  which  they  serve.  When  they  request  to  withdraw,  the  com- 
mander of  the  occupying  troops  shall  fix  the  time  of  departure,  which  he 
shall  only  be  allowed  to  delay  for  a  short  time  in  case  of  military  necessity. 

Art.  II.  Arrangements  will  have  to  be  made  by  the  belligerent 
powers  to  ensure  to  the  neutralized  person,  fallen  into  the  hands  of  the 
army  of  the  enemy,  the  entire  enjoyment  of  his  salary. 

Art.  III.  Under  the  conditions  provided  for  in  Articles  I.  and  IV.  of 
the  Convention,  the  name  "ambulance"  applies  to  field  hospitals  and 
other  temporary  estabhshments  which  follow  the  troops  on  the  field  of 
battle  to  receive  the  sick  and  wounded. 

Art.  IV.  In  conformity  with  the  spirit  of  Article  V.  of  the  Conven- 
tion, and  to  the  reservations  contained  in  the  protocol  of  1864,  it  is 
explained  that  for  the  appointment  of  the  charges  relative  to  the  quar- 
tering of  troops,  and  of  the  contributions  of  war,  account  only  shall  be 
taken  in  an  equitable  manner  of  the  charitable  zeal  displayed  by  the 
inhabitants. 

Art.  V.  In  addition  to  Article  VI.  of  the  Convention,  it  is  stipulated 
that,  with  the  reservation  of  officers  whose  detention  might  be  important 
to  the  fate  of  arms  and  within  the  limits  fixed  by  the  second  paragraph  of 
that  article,  the  wounded  fallen  into  the  hands  of  the  enemy  shall  be  sent 
back  to  their  country,  after  they  are  cured,  or  sooner  if  possible,  on  con- 
dition, nevertheless,  of  not  again  bearing  arms  during  the  continuance  of 
the  war. 

II.  The  foregoing  Convention  and  additional  articles  are  published 
by  order  of  the  President,  who  commands  that  the  original  Convention 
and  the  first  five  of  the  additional  articles  shall  form  part  of  the  "Instruc- 
tions for  the  Government  of  Armies  of  the  United  States  in  the  Field," 
as  published  in  General  Orders,  No.  100,  1863,  from  this  office. 

******* 

By  command  of  Major-General  Schofield. 

J.  C.  Kelton, 
A  djutant-General. 


APPENDIX    in.  615 


APPENDIX  III. 

The  Brussels  Project  of  an  International  Declaration  Concern- 
ing the  Laws  and  Customs  of  War. 

Article  I.  A  territory  is  considered  as  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army. 

The  occupation  only  extends  to  those  territories  where  this  authority 
is  established  and  can  be  exercised. 

Art.  II.  The  authority  of  the  legal  power  being  suspended,  and 
having  actually  passed  into  the  hands  of  the  occupier,  he  shall  take  every 
step  in  his  power  to  re-establish  and  secure,  as  far  as  possible,  public 
safety  and  social  order. 

Art.  III.  With  this  object  he  will  maintain  the  laws  which  were  in 
force  in  the  country  in  time  of  peace,  and  will  only  modify,  suspend,  or 
replace  them  by  others  if  necessity  obliges  him  to  do  so. 

Art.  IV.  The  functionaries  and  officials  of  every  class  who  at  the 
instance  of  the  occupier  consent  to  continue  to  perform  their  duties, 
shall  be  under  his  protection.  They  shall  not  be  dismissed  or  be  liable 
to  summary  punishment  [punis  disciplinairement]  unless  they  fail  in  ful- 
filling the  obligations  they  have  undertaken,  and  shall  be  handed  over  to 
justice  only  if  they  violate  those  obligations  by  unfaithfulness. 

Art.  V.  The  army  of  occupation  shall  only  levy  such  taxes,  dues, 
duties,  and  tolls  as  are  already  established  for  the  benefit  of  the  state  or 
their  equivalent,  if  it  be  impossible  to  collect  them,  and  this  shall  be  done 
as  far  as  possible,  in  the  form  of,  and  according  to,  existing  practice.  It 
shall  devote  them  to  defraying  the  expenses  of  the  administration  of  the 
country  to  the  same  extent  as  was  obligatory  on  the  legal  government. 

Art.  VI.  The  army  occupying  a  territory  shall  take  possession  only 
of  the  specie,  the  funds,  and  marketable  securities,  etc.  [valeurs  exigibles^, 
which  are  the  property  of  the  state  in  its  own  right,  the  depots  of  arms, 
means  of  transport,  magazines,  and  supplies,  and,  in  general,  all  the  per- 
sonal property  of  the  state  which  is  of  a  nature  to  aid  and  carry  on  the 
war. 

Railway  plant,  land  telegraphs,  steam  and  other  vessels  not  included  in 
cases  regulated  by  maritime  law,  as  well  as  depots  of  arms,  and  generally 
every  kind  of  munitions  of  war,  although  belonging  to  companies  or  to 
private  individuals,  are  to  be  considered  equally  as  means  of  a  nature 
to  aid  in  carrying  on  a  war  which  cannot  be  left  by  the  army  of  occupa- 
tion at  the  disposal  of  the  enemy. 

Railway  plant,  land  telegraphs,  as  well  as  the  steam  and  other  vessels 
above  mentioned,  shall  be  restored,  and  indemnities  be  regulated  on  the 
conclusion  of  peace. 


6l6  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

Art.  VII.  The  occupying  state  shall  only  consider  itself  in  the  light 
of  an  administrator  and  usufructuary  of  the  public  buildings,  real  property, 
forests,  and  agricultural  works  belonging  to  the  hostile  state  and  situated 
in  the  occupied  territory.  It  is  bound  to  protect  these  properties  [fondes 
de  ces  proprietes],  and  to  administer  them  according  to  the  laws  of  usufruct. 

Art.  VIII.  The  property  of  parishes  [communes^  of  establishments 
devoted  to  religion,  charity,  education,  arts,  and  sciences,  although  be- 
longing to  the  state,  shall  be  treated  as  private  property. 

Every  seizure,  destruction  of,  or  willful  damage  to,  such  establish- 
ments, historical  monuments,  or  works  of  art  or  of  science  should  be 
prosecuted  by  the  competent  authorities. 

Oj  Those  Who  Are  to  Be  Recognized  as  Belligerents;  Of  Combatants  and 
N  oncomhatants . 

Art.  IX.  The  laws,  rights,  and  duties  of  war  are  applicable  not  only 
to  the  army,  but  likewise  to  militia  and  corps  of  volunteers  complying 
with  the  following  conditions : 

1.  That  they  have  at  their   head    a    person   responsible  for  his 

subordinates ; 

2.  That  they  wear  some  settled  distinctive   badge  recognizable 

at  a  distance; 

3.  That  they  carry  arms  openly;  and 

4.  That  in  their-  operations  they  conform  to  the  laws  and  cus- 

toms of  war. 

In  those  countries  where  the  militia  form  the  whole  or  part  of  the 
army  they  shall  be  included  under  the  denomination  of  'iarmy." 

Art.  X.  The  population  of  a  non-occupied  territory  who,  on  the 
approach  of  the  enemy,  of  their  own  accord  take  up  arms  to  resist  the 
invading  troops  without  having  had  time  to  organize  themselves  in  con- 
formity with  Article  IX.,  shall  be  considered  as  belligerents  if  they  re- 
spect the  laws  and  customs  of  war. 

Art.  XI.  The  armed  forces  of  the  belligerents  may  be  composed  of 
combatants  and  noncombatants.  In  the. event  of  being  captured  by  the 
enemy,  both  one  and  the  other  shall  the  enjoy  the  rights  of  prisoners  of  war. 
******* 

Oj  Sieges  and  Bombardments . 
******* 
Art.  XVII.  In  the  like  case  all  necessary  steps  should  be  taken  to 
spare,  as  far  as  possible,  buildings  devoted  to  religion,  arts,  sciences,  and 
charity,  hospitals,  and  places  where  sick  and  wounded  are  collected,  on 
condition  that  they  are  not  used  at  the  same  time  for  military  purposes 
It  IS  the  duty  of  the  besieged  to  indicate  these  buildings  by  special  visible 
signs,  to  be  notified  beforehand  by  the  besieged. 


i 


APPENDIX   III.  617 

Art.  XVIII.  A  town  taken  by  storm  shall  not  be  given  up  to  the 
victorious  troops  to  plunder. 

Of  the  Sick  and  Wounded. 

Art.  XXXV.  The  duties  of  belligerents,  with  regard  to  the  sick  and 
wounded,  are  regulated  by  the  Convention  of  Geneva  of  the  2 2d  August, 
1864,  subject  to  the  modifications  which  may  be  introduced  into  that 
Convention.     [See  G.  O.,  No.  3,  A.  G.  O.,  1892,  Appendix  II.] 

Of  the  Military  Power  with  Respect  to  Private  Individuals. 

Art.  XXXVI.  The  population  of  an  occupied  territory  cannot  be 
compelled  to  take  part  in  military  operations  against  their  own  country. 

Art.  XXXVII.  The  population  of  occupied  territories  cannot  be 
compelled  to  swear  allegiance  to  the  enemy's  power. 

Art.  XXXVIII.  The  honor  and  rights  of  the  family,  the  life  and 
property  of  individuals,  as  well  as  their  religious  convictions  and  the 
exercise  of  their  religion,  should  be  respected. 

Private  property  cannot  be  confiscated. 

Art.  XXXIX.     Pillage  is  expressly  forbidden. 

Of  Contributions  and  Requisitions. 

Art.  XL.  As  private  property  should  be  respected,  the  enemy  will 
demand  from  parishes  [communes],  or  the  inhabitants,  only  such  payments 
and  services  as  are  connected  with  the  necessities  of  war  generally  ac- 
knowledged in  proportion  to  the  resources  of  the  country,  and  which  do 
not  imply,  with  regard  to  the  inhabitants,  the  obligation  of  taking  part 
in  the  operations  df  war  against  their  own  country. 

Art.  XLI.  The  enemy,  in  levying  contributions,  whether  as  equiva- 
lents for  taxes  [vide  Article  V.],  or  for  payments  which  should  be  made 
in  kind,  or  as  fines,  will  proceed,  as  far  as  possible,  according  to  the  rules 
of  the  distribution  and  assessment  of  the  taxes  in  force  in  the  occupied 
territory. 

The  civil  authorities  of  the  legal  government  will  afford  their  assist- 
ance, if  they  have  remained  in  office. 

Contributions  can  be  imposed  only  on  the  order  and  on  the  respon- 
sibility of  the  general-in-chief,  or  of  the  superior  civil  authority  established 
by  the  enemy  in  the  occupied  territory. 

For  every  contribution  a  receipt  shall  be  given  to  the  person  furnish- 
ing it. 

Art.  XLI  I.  Requisitions  shall  be  made  only  by  the  authority  of  the 
commandant  of  the  locality  occupied. 

For  every  requisition  an  indemnity  shall  be  granted  or  a  receipt  given. 


APPENDIX  IV. 

Extract  from  the  Laws  of  War  Proposed  by  the  Institut  de 

Droit  International,  Oxford,  September,  1880. 

******* 
Of  Occupied  Territory. 

Definition. — A  territory  is  considered  to  be  occupied  where,  as  the  re- 
sult of  its  invasion  by  an  enemy's  force,  the  state  to  which  it  belongs  has 
ceased  in  fact  to  exercise  its  ordinary  authority  within  it  and  the  invading 
state  is  alone  in  a  position  to  maintain  order.  The  extent  and  duration 
of  the  occupation  are  determined  by  the  limits  of  space  and  time  within 
which  this  state  of  things  exists. 

Rules  of  Conduct  wifk  Regard  to  Persons. 

Since  new  relations  arise  from  the  provisional  change  of  government, 
it  is  the  duty  of  the  occupying  military  authority  to  inform  the  inhabit- 
ants of  the  occupied  territory  as  soon  as  possible  of  the  powers  which  it 
exercises,  as  well  as  of  the  local  extent  of  the  occupation.  The  occupier 
must  take  all  measures  in  his  power  to  establish  and  to  preserve  public 
order. 

With  this  object  the  occupier  must,  so  far  as  possible,  retain  the  laws 
which  were  in  force  in  the  country  in  the  time  of  peace,  modifying, 
suspending,  or  replacing  them  only  in  case  of  necessity.  The  civil 
functionaries  of  every  kind  who  consent  to  continue  the  exercise  of  their 
functions  are  under  the  protection  of  the  occupier.  They  may  be  dis- 
missed, and  they  may  resign  at  any  moment.  For  failing  to  fulfil  the 
obligations  freely  accepted  by  them,  they  can  only  be  subjected  to  dis- 
ciplinary punishment.  For  betraying  their  trust  they  may  be  punished 
in  such  manner  as  the  case  may  demand. 

In  emergencies  the  occupier  may  require  the  inhabitants  of  an  occupied 
district  to  give  their  assistance  in  carrying  on  the  local  administration. 

As  occupation  does  not  entail  a  change  of  nationality  on  the  part  of 
the  inhabitants,  the  population  of  an  occupied  country  cannot  be  com- 
pelled to  take  an  oath  of  fidelity  or  obedience  to  the  enemy's  power.  Per- 
sons doing  acts  of  hostility  directed  against  the  occupier  are,  however, 
punishable. 

Inhabitants  of  an  occupied  territory  who  do  not  conform  to  the  orders 
of  the  occupier  can  be  compelled  to  do  so. 

The  occupier  cannot,  however,  compel  the  inhabitants  to  assist  him 
in  his  works  of  attack  or  defence,  nor  to  take  part  in  military  operations 
against  their  own  country. 

Moreover,  human  life,  female  honor,  religious  beliefs,  and  forms  of 
worship  must  be  respected.  Interference  with  family  life  is  to  be 
avoided. 

******* 

Note.— Careful  examination  of  Appendices  III.  and  IV.  will  show  where  much 
of  the  material  and  many  of  the  ideas  came  from  that  are  embodied  in  the  articles 
of  the  Hague  Conference  Code  which  appear  in  Appendix  II. 


1 


APPENDIX     V.  619 

APPENDIX  V. 

State  of  Siege  in  France. 
[From  Code  Manuel  de  I'Aiitoritc  Civile.'] 

The  state  of  siege,  says  Mr.  Foucart,  gives  rise  to  a  form  of  legislation 
wholly  exceptional.  The  peculiar  circumstances  in  the  midst  of  which 
one  finds  himself,  necessitate  the  transfer  of  all  the  rights  of  the  civil  to 
the  military  authority,  upon  which  then  depends  the  safety  of  the  place, 
and,  perhaps,  even  that  of  the  state.  The  military  commander  is  clothed, 
for  the  maintenance  of  order  and  interior  police,  with  prerogatives  which 
belong  to  civil  and  judicial  magistrates,  and  he  exercises  them  exclusively 
on  his  personal  responsibility;  he  can,  therefore,  issue  legal  mandates, 
order  arrests;  he  can  also  force  dangerous  characters  to  leave  the  town. 
[Law  of  8th  July,  1791,  Articles  IX.,  X.,  XL,  XII.;  decree  of  24th  De- 
cember, 1811,  Articles  XCV.,  CL,  CIL;  see  post,  pp.  620-21.] 

This  definition  of  the  state  of  siege  sums  up  the  opinion  of  all  text- 
writers;  the  learned  professor  wrote  it  in  1839,  in  the  second  edition  of 
his  Elements  of  Public  Law,  a  work  worded  with  as  much  judiciousness 
as  talent,  and  to  which  we  have  often  had  recourse.  [See  Article  LIIL, 
decree,  24th  December,  181 1,  post,  p.  621.] 

By  the  law  of  1 791  \^post,  p.  620],  the  state  of  siege,  like  the  state  of  war, 
is  recognized  by  legislation;  by  the  law  of  loth  Fructidor  of  the  year  V. 
\_post,  p.  624],  the  state  of  siege  may  be  placed  upon  communes  of  the 
interior,  and  no  one  will  be  persuaded  that  the  word  "commune"  [par- 
ishes] is  restricted  to  the  interior  of  towns. 

The  decree  of  i8ii  ^post,  pp.  620-21]  has  in  no  wise  modified  these 
laws,  but  the  legality  of  the  state  of  siege,  either  in  fortified  towns  or  in 
communes  of  the  interior^  not  being  contested,  it  would  be  superfluous 
here  to  dwell  upon  that  part  of  the  legislation  included  in  our  text.  There 
is  another  question  which,  by  its  importance,  demands  our  attention, 
to-wit:  Whether  Article  CIII.  [post,  p.  621]  of  the  decree  of  24th  De- 
cember, 181 1,  which,  for  all  offences  committed  during  the  state  of  siege 
replaces  the  ordinary  tribunals  by  miUtary  tribunals,  has  been  abrogated 
by  the  constitutional  charter. 

ThiS  question,  it  is  known,  was  the  subject,  in  1832,  of  a  decree  of  the 
Court  of  Appeal,  to  which  was  given,  erroneously,  by  public  opinion,  an 
extension  of  meaning  that  it  is  far  from  having;  the  decree  of  the  19th 
June,  in  fact,  has  purely  and  simply  admitted  the  appeal  of  Mr.  Geoffroy 
from  a  finding  of  the  second  "conseil  de^gv^rre"  of  the  first  military 
division,  set  aside  the  proceedings  and  sentence  by  sending  the  aforesaid 
Geoffroy  on  a  warrant  of  commitment  before  the  examining  magistrate 
of  the  Court  of  First  Instance  [a  court  of  inferior  jurisdiction]  and  after- 


620  MILITARY   GOVERNMENT   AND   MARTIAL   LAW. 

ward  before  the  Court  of  Assizes,  etc.,  and  this  because,  Geoffrey  not  being 
a  soldier  or  having  any  military  character,  there  had  been  an  exceeding 
of  jurisdiction  and  a  violation  of  Articles  LIU.  and  LIV.  of  the  Charter, 
etc.,  etc.;  the  same  decree  recognizing,  nevertheless,  the  legality  of  the 
legislation  regarding  the  state  of  siege. 

If  we  go  back  to  the  epoch  when  this  decision  was  rendered,  to  the  par- 
ticular circumstances  which  called  it  forth,  it  is  impossible  not  to  recog- 
nize that  it  cannot  in  the  future  have  the  force  that  the  decisions  of  the 
Supreme  Court  would  ordinarily  give  it.  The  decree  of  the  19th  of  June 
can  evidently,  let  us  say,  be  considered  only  as  an  act  of  policy  for  the 
moment,  having  no  other  object  than  to  quiet  feeling  and  not  to  invali- 
date impliedly  one  or  more  portions  of  a  law,  all  the  principles,  all  the 
provisions  of  which  are  bound  together  so  closely  and  are  so  inseparable 
that  to  destroy  a  single  one  of  them  would  be  to  annul  all.  This  decree 
finally  bears  the  stamp  of  the  most  striking  anomaly.  How,  indeed,  is 
it  possible  to  recognize  the  legality  of  legislation  on  the  state  of  siege 
that  of  the  jurisdiction  of  military  tribunals,  the  legality  of  the  suspension 
of  ordinary  jurisdiction,  and  to  desire,  on  the  other  hand,  that  the  latter 
exist,  even  though  for  the  trial  of  a  class  of  individuals?  As  has  been  well 
said,  the  true  principle  of  the  state  of  siege  lies  above  all  in  the  necessity 
for  defence;  this  is  an  absolute  principle  that  all  states,  all  governments, 
despotic,  repu1)lican,  or  constitutional,  have  never  contested.  Suppose 
the  Court  of  Appeal  itself  closed  in  a  place  that  is  invested,  besieged, 
bombarded;  its  power  has  ceased,  its  jurisdiction  exists  no  more  than  does 
that  of  the  ordinary  courts  or  other  ordinary  tribunals.  The  court-martial 
alone  has  jurisdiction;  it  acts  even  when  the  enemy  is  in  the  breach,  and 
when  he  even  enters  the  place.  In  such  cases  an  appeal  is  not  thought  of; 
there  is  no  appeal,  there  can  be  no  appeal  other  than  to  the  clemency  of 
••.he  conqueror.  This  is  the  spirit,  the  letter  of  the  law  regarding  the  state 
of  siege;  the  commander  of  the  place  is  the  sole,  the  only  authority  who 
gives  orders  and  the  only  one  to  whom  one  owes  obedience ;  there  cannot, 
therefore,  be  side  by  side  with  his  jurisdiction,  or  that  which  emanates 
from  him,  any  other  jurisdiction.  Admit  for  one  instant  this  other  juris- 
diction and  there  will  no  longer  be  commanders  who  answer,  on  the  pen- 
alty of  their  heads,  for  th2  safety  of  all  in  the  place,  often  for  the  safety 
of  the  state. 

We  reason  here,  as  is  well  understood,  in  a  general  way  in  regard  to  the 
slate  of  siege  and  in  the  strict  meaning  of  that  situation;  the  Court  of  Ap- 
peal has,  on  the  contrary,  seen  only  a  particular  case,  the  mitigating  cir- 
cumstances of  which  have  dictated  its  decree  which,  once  more,  cannot 
be  considered  as  a  decision  of  principle  without  the  greatest  danger  to 
the  defence  of  the  state. 


APPENDIX     V.  621 

Articles  LIU.  and  LIV.  of  the  Constitution  are  urged  against  this: 
"Article  LIII.     No  one  will  be  deprived  of  his  natural  judges." 

"Art.  IvIV.  In  consequence,  extraordinary  commissions  and  tri- 
bunals cannot  be  created  by  virtue  of  any  right  or  under  any  name  what- 
ever." 

These  articles  had  as  an  object  to  prevent  the  revival  of  the  military 
commissions  of  the  Empire,  of  the  prevotal  courts  of  the  Restoration, 
finally,  of  any  extraordinary  improvised  jurisdiction.  But  the  permanent 
m  litary  courts  are  not  extraordinary  commiss  ons  newly  and  specially 
created  for  certain  cases ;  they  are  sanctioned  in  law ;  the  Court  of  Appeal 
decided  a  hundred  times  before  the  decree  of  the  19th  of  June  that  the 
Constitution  had  not  abolished  them ;  that  they  were  the  ordinary  tribu- 
nals of  the  military  as  naval  courts-martial  are  the  tribunals  of  the  naval 
service,  and  by  virtue  of  the  decree  of  November  12,  1806,  the  judges  of 
offences  committed  in  port  by  non-military  persons.  Finally,  during  the 
state  of  siege,  the  military  tribunals  become  the  ordinary  tribunals,  and 
since  the  decree  of  June  19,  1832,  itself  recognized  the  legality  of  the  state 
of  siege,  it  could  not,  without  self-contradiction,  fail  to  recognize  the 
jurisdiction  that  this  situation  brings  about. 

The  objection,  based  upon  the  fact  that  under  the  government  of  the 
Constitution  the  crime  of  sedition  committed  by  non-military  persons  is 
within  the  jurisdiction  of  the  Court  of  Assizes,  cannot  here  have  the 
slightest  consideration,  as  it  is  not  a  question,  we  repeat,  of  ordinary  times, 
when  sedition  may  be  committed,  but  of  a  time  of  war,  of  the  state  of 
siege,  in  short,  which  is  war  in  the  very  height  of  its  action.  As  to  the 
objection  that  the  state  of  siege  resulting  from  a  sedition  in  an  interior 
commune  differs  from  the  state  of  siege  of  a  fortified  place  invested  and 
besieged  by  an  enemy,  the  very  legislation  regarding  the  state  of  siege 
destroys  it  completely,  since  the  definition  of  the  state  of  siege  comprises 
both  cases.  But  let  us  quote  here  Mr.  Voysin  de  Gartempe,  who  filled  the 
office  of  attorney-general  of  the  Court  of  Appeal  on  the  19th  June,  1832,  in 
the  appeal  of  Geoffroy : 

"What!  the  necessity  for  the  state  of  siege,  recognized  by  the  laws, 
should  be  least  against  the  aggression  of  enemies  from  the  inside  ?  What 
difference  is  there  between  the  war  which  is  at  the  foot  of  the  ramparts 
and  that  which  breaks  out  within  the  very  walls  of  the  city?  What! 
Because  French  blood  has  been  shed  by  French  hands,  the  govern- 
ment will  not  be  able,  in  order  to  stop  its  being  shed,  to  use,  on  its  own 
responsibility,  all  the  means  which  belong  to  it?  Civil  war  is,  then, 
ess  odious  than  foreign  war?     Does  it  no  longer  exact  means  of  repres- 


622  AIILITAR\  GOVERNMENT  AND  MARTIAL  LAW. 

sion  that  are  quite  as  prompt,  quite  as  powerful?     To  allow  the  facts  to 
speak  suffices  for  an  answer. 

"When  lately  the  fires  of  sedition  were  smouldering  in  the  provinces  of 
the  west,  when  they  were  being  overrun  and  ravaged  by  armed  bands 
few  in  numbers,  what  did  the  deputies  of  these  provinces  ask?  What  did 
the  general  councils  of  these  departments  say?  What  did  the  press  of 
the  opposition  repeat  with  great  outcry?  From  every  side  they  called  for 
the  placing  of  the  state  of  siege  or  accused  of  feebleness,  of  timidity,  the 
government  which  hesitated  to  employ  this  means,  the  only  one,  they 
said,  which  was  proportionate  to  the  evil,"  etc.,  etc. 


Extract  from  the  Law  Concerning  the  Preservation  and  Class- 
ifying of  Fortified  Towns  and  Military  Posts,  the  Police  of 
Fortifications  and  Other  Objects  Relative  thereto,  Given 
at  Paris,  July  lo,   1871. 

Decree  of  the  National  Assembly  0}  May  24,  June  25,  27,  and  30,  July  2, 

4,  5,  and  8,  1791. 

*  ****** 

Article  X.  In  fort  fied  places  and  military  posts,  when  these  places 
and  posts  shall  be  in  a  state  of  siege,  all  authority  with  which  the  civil 
authorities  are  clothed  by  the  Constitution  for  the  maintenance  of  order 
and  interior  police  shall  pass  to  the  military  commander,  who  shall  exer- 
cise it  exclusively  on  his  personal  responsibility. 

Art.  XI.  Fortified  towns  and  military  posts  shall  be  in  the  state  of 
siege  not  only  from  the  instant  of  the  commencement  of  the  attack,  but 
even  as  soon  as,  by  the  effect  of  their  investment  by  hostile  troops,  the 
communications  from  the  inside  to  the  outside,  or  the  outside  to  the  inside, 
shall  be  interrupted  at  a  distance  of  1,800  toises  from  the  crest  of  the 
covered  way. 

Art.  XII.  The  state  of  siege  will  cease  only  upon  the  raising  of  the 
investment;  and  in  case  attacks  shall  have  been  begun,  only  after  the 
works  of  the  besiegers  shall  have  been  destroyed,  and  the  breaches  repaired 
or  placed  in  a  state  of  defence. 

NoTB.— On  the  24th  of  June,  1818,  in  the  midst  of  the  terrible  insurrection  that 
covered  Paris  with  blood,  Mr.  Pascal  Dupont  proposed  to  the  Constituent  Assembly 
to  place  Paris  in  a  state  of  siege.  The  state  of  siege  was  voted  for.  It  lasted  until 
October  19,  1848.  This  time  the  state  of  siege  covered  with  its  shadow  the  giving  to 
courts-martial  of  the  jurisdiction  of  citizens  tjow  sanctioned  by  the  Court  of  Appeal. 
This  was  followed  the  13th  of  June,  1849,  by  a  law  placing  Paris  again  in  a  state  of 
siege,  proposed  and  passed  at  the  same  session;  and,  to  show  how  events  bring 
changes,  the  same  M.  Orilon  Barrot,  keeper  of  the  seal,  who  introduced  this  law, 
was  the  advocate  who  pleaded  so  eloquently  for  M.  Geoffroy,  as  narrated  in  the 
text  in  1832  (Dictionaire  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  Mihtary  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  different  cases  the  duties  and  obligations  of  commanders  of 
troops  are  subject  to  the  rules  laid  down  further  on.  Chapter  IV. 

Chapter  IV. — The  Stale  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  limits  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  MARTIAL  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,  fl^aw  of  9th  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  miUtary  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  military  authori- 
ties of  the  powers  with  which  the  civil  authorities  are  clothed  for  the 
maintenance  of  order  and  pohce.     [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  9th  August,  1849. 
Ch.^pter  I. — Cases  in  which  the  State  of  Siege  May  be  Declared. 

Article  I.  The  state  of  siege  can  be  declared  only  in  case  of  im- 
minent peril  for  the  purpose  of  interior  or  exterior  safety. 

******* 

Cn.\prER  II. — Forms  of  the  Declaration  of  the  State  of  Siege. 
*  *  *  *  *  *  * 

Article  II.  The  National  Assembly  has  the  sole  power  to  declare 
the  state  of  siege  with  exceptions  mentioned  below. 

The  declaration  of  the  state  of  siege  designates  the  communes,  the 
districts,  and  the  departments  to  which  it  is  applied  and  may  be  extended. 

Art.  III.  In  the  case  of  prorogation  of  the  National  Assembly,  the 
President  of  the  Republic  may  declare  the  state  of  siege  by  the  advice  of 
the  Council  of  Ministers. 

The  President,  when  he  has  declared  the  state  of  siege,  must  immedi- 
ately notify  the  commission  instituted  by  virtue  of  Article  XXXII.  of  the 
Constitution  of  the  fact,  and,  according  to  the  gravity  of  the  circum- 
stances, call  the  National  Assembly  together. 

The  prorogation  of  the  Assembly  ceases  as  of  right  when  Paris  is 
declared  in  a  state  of  siege. 

The  National  Assembly,  as  soon  as  it  has  assembled,  continues  or 
raises  the  state  of  siege. 


APPENDIX    V.  625 

Art.  IV.  In  French  colonies  the  declaration  of  the  state  of  siege  is 
made  by  the  governor  of  the  colony.  He  must  immediately  account  for 
it  to  the  Government.* 

Art.  V.  In  fortified  towns  and  military  posts,  either  on  the  frontier 
or  in  the  interior,  the  declaration  of  the  state  of  siege  may  be  made  by 
the  military  commander  in  the  cases  provided  by  the  law  of  loth  July, 
1791,  and  by  the  decree  of  24th  December,  181 1. 

The  commandant  immediately  gives  an  account  of  it  to  the  Gov- 
ernment. 

Art.  VI.  In  the  cases  provided  for  in  the  two  preceding  articles,  if 
the  President  does  not  believe  that  the  state  of  siege  should  be  raised,  he 
will  without  delay  propose  the  continuance  of  it  to  the  National  Assembly. 

Ch.\pter  III. — Effects  of  the  State  of  Siege. 

Article  VII.  Immediately  on  the  declaration  of  the  state  of  siege 
the  powers  with  which  the  civil  authority  was  clothed  for  the  maintenance 
of  order  and  police  passes  in  its  entirety  to  the  military  authority. 

The  civil  authority  continues,  nevertheless,  to  exercise  those  powers 
of  which  the  military  authority  has  not  deprived  it. 

Art.  VIII.  The  military  tribunals  may  be  vested  with  the  jurisdiction 
of  crimes  and  misdemeanors  against  the  safety  of  the  State,  against  the 
Constitution,  against  public  order  and  peace,  whatever  the  status  of  the 
principals  or  accomplices. 

Art.  IX.     The  military  authority  has  the  right: 

1.  To  search  by  day  or  night  the  homes  of  citizens; 

2.  To  send  away  individuals  who  have  undergone  judicial  pun- 

ishment, and  individuals  who  have  not  their  domicile  in 
the  places  subject  to  the  state  of  siege; 

3.  To  order  the  surrender  of  arms  and  stores,  and  to  proceed  to 

search  and  seize  them; 

4.  To  prohibit  publications  and  meetings  that  it  judges  to  be  of 

a  nature  tending  to  incite  and  maintain  disorder. 

Art.  X.  In  the  places  named  in  Article  V.  the  effects  of  the  state  of 
siege  continue,  in  addition,  in  cases  of  foreign  war,  to  be  determined  by  the 
provisions  of  the  law  of  July  10,  1791,  and  the  decree  of  December  24,  181 1. 

Art.  XI.  Citizens  continue,  notwithstanding  the  existence  of  the 
state  of  siege,  to  exercise  all  those  rights  guaranteed  by  the  Constitution, 
and  the  enjoyment  of  which  is  not  suspended  by  virtue  of  the  preceding 
articles. 


*Ariicle  X.  of  the  decree  of  April  29,  1857,  is  thus  worded  :  "In  Algeria  the  state 
of  siege  results  from  the  cases  enumerated  in  Article  XXXIX.  of  the  decree  of 
August  10,  1853,  or  from  the  promulgation  of  a  decree  issued  by  reason  of  emergency 
by  the  governor-general." 

—40— 


626  MILITARY    GOVERNMENT   AND   MARTIAL   LAW. 

Chapter  IV. — Raising  of  the  State  of  Siege. 

Article  XII.  The  National  Assembly  has  the  sole  right  to  raise  the 
state  of  siege  when  it  has  been  declared  or  continued  by  it. 

Nevertheless,  in  case  of  prorogation,  this  right  will  appertain  to  the 
President  of  the  Republic.  The  state  of  siege  declared  in  conformity 
with  Articles  III.,  IV.,  and  V.  may  be  raised  by  the  President  of  the 
Republic,  provided  it  has  not  been  continued  by  the  National  Assembly. 

The  state  of  siege  declared  in  conformity  with  Article  IV.  may  be 
raised  by  the  governors  of  the  colonies  as  soon  as  they  believe  quiet  to  be 
sufficiently  restored. 

Art.  XIII.  After  the  raising  of  the  state  of  siege  the  military  tri- 
bunals continue  to  take  cognizance  of  crimes  and  misdemeanors,  the  pros- 
ecution of  which  has  been  turned  over  to  them. 

[From  Repertoire  Universelle  et  Raison^e  de  J  ur  is  prudence  i\ 

The  Constitution  of  the  5th  Fructidor,  year  3,  not  having  expressly  de- 
termined the  cases  or  the  forms  in  which  the  towns  of  the  interior  could 
be  declared  in  a  *  *  *  state  of  siege,  the  law  of  the  loth  Fructidor, 
year  5,  provided  for  it  in  the  two  following  articles: 

"Art.  II.  The  communes  of  the  interior  will  be  in  a  state  of  siege  as 
soon  as  by  the  effect  of  their  investment  by  hostile  troops  or  by  rebels 
the  communications  from  within  to  without,  or  from  without  to  within, 
shall  be  interrupted  at  a  distance  of  three  thousand  five  hundred  and  two 
metres  (eighteen  hundred  toises) ;  in  this  case  the  executive  directory  will 
warn  the  legislative  body  of  the  fact." 

But  the  fact  was  soon  recognized  that  this  law  was  contrary  to  the 
spirit  of  the  Constitution  of  the  year  3;  and  by  Article  XXXIX.  of  the  law 
of  the  19th  of  the  same  month,  "the  power  to  put  a  commune  in  a  state 
of  siege  was  given  to  the  directory." 

The  Constitution  of  the  2 2d  Frimaire,  year  8,  is  no  more  explicit  than 
that  of  the  year  3,  about  the  power  to  declare  places  in  a  state  of  siege  or  of 
war.  But  that  this  power  did  belong  to  the  head  of  the  government  with- 
out the  concurrence  of  any  other  authority,  that  the  head  of  the  govern- 
ment was  alone  able,  as  the  King  still  is  to-day,  to  declare  war  against 
foreign  powers,  is  not  to  be  doubted. 

Furthermore,  we  see  that  the  fortified  towns  of  Antwerp  and  Brest 
were  declared  in  a  state  of  siege  by  two  decrees  of  the  26th  March,  1807. 


APPENDIX  VI. 

The  matter  contained  in  this  Appendix  is  the  latest  authoritative 
publication  by  the  War  Department  of  the  "Geneva  Convention"  and 
of  the  "Instructions  for  the  Government  of  Armies  of  the  United 
States  in  Time  of  War."  It  is  contained  in  the  "Field  Service  Reg- 
ulations," issued  just  as  this  book  was  going  to  the  press. 

THE  GENEVA  CONVENTION. 

665.  The  Convention  between  the  United  States  and  the  principal 
European  and  other  powers  for  the  amelioration  of  the  condition  of 
the  sick  and  wounded  of  armies  in  the  field,  concluded  August  22, 
1864,  and  acceded  to  by  the  United  States  Government  in  March,  1882, 
commonly  known  as  the  Geneva  Convention,  is  as  follows: 

ART.  I.  Ambulances  and  field  hospitals  shall  be  recognized  as 
neutral  establishments,  and,  as  such,  shall  be  protected  and  respected 
by  belligerents  as  long  as  they  contain  sick  or  wounded. 

Such  neutrality  would  cease  if  the  ambulances  or  hospitals  were 
held  by  a  military  force. 

ART.  II.  The  personnel  of  hospitals  and  ambulances,  including 
the  administrative  and  supply  departments  thereof,  tlie  medical  ser- 
vice, the  transport  service  for  wounded,  and  likewise  chaplains,  shall 
participate  in  the  benefit  of  neutrality  while  on  duty,  and  as  long 
as  tliere  remain  any  wounded  to  bring  in  or  to  succor. 

ART.  III.  The  persons  designated  in  the  preceding  article  may, 
-fcven  after  occupation  by  the  enemy,  continue  to  fulfill  their  duties 
in  the  hospital  or  ambulance  whicli  they  serve,  or  may  witlidraw  to 
rejoin  tlie  body  of  troops  to  wliich  they  belong. 

Under  such  circumstances,  wlien  these  persons  shall  cease  from 
their  functions,  tlie  occupying  army  shall  take  care  to  deliver  them 
to  the  enemy's  outposts. 

ART.  IV.  As  the  equipment  of  military  hospitals  remains  subject 
to  the  laws  of  war,  persons  attached  to  such  hospitals  can  not,  in 
withdrawing,  carry  away  any  articles  except  such  as  are  their  pri- 
vate property. 

Under  the  same  circumstances  an  ambulance  shall,  on  tlie  con- 
trary, retain  its  equipment. 

ART.  V.  The  inhabitants  of  a  country  who  may  assist  the  wound- 
ed shall  be  respected,  and  shall  remain  free.  It  shall  be  the  duty  of 
the  commanding  generals  of  the  belligerent  powers  to  notify  the 
inhabitants  of  the  appeal  addressed  to  their  humanity,  and  of  the 
neutrality  resulting  therefrom. 

Any  wounded  man  received  and  nursed  in  a  house  shall  act  as  a 
•safeguard  thereto.  Any  inhabitant  who  shall  have  entertained 
•wounded  men  in  his  house  shall  be  exempt  from  the  quartering  of 
troops,  as  well  as  from  a  part  of  the  contributions  of  war  which 
may  be  imposed. 

627 


628  MILITARY   GOVERNMENT    AND    MARTIAL   LAW. 

ART.  VI.  "Wounded  or  sick  soldiers  shall  be  collected  and  treated^ 
to  whatever   nation   they   may   belong-. 

Commanders  in  chief  are  authorized  to  deliver  to  the  enemy's  out- 
posts at  once  all  soldiers  wounded  in  combat,  when  circumstances 
permit  and  both  parties  consent  to   such   action. 

Those  who,  after  their  wounds  are  healed,  are  recognized  as  in- 
capable of  serving,  shall  be  sent  back  to  their  country. 

The  others  may  also  be  sent  back,  on  condition  of  not  again  bear- 
ing arms  during  continuance   of  the  war. 

Evacuations,  together  with  the  personnel  conducting  them,  shall 
be  protected  by  absolute  neutrality. 

ART.  VII.  A  distinctive  and  uniform  flag  shall  be  adopted  for  hos- 
pitals, ambulances  and  evacuations.  It  must  on  every  occasion  be 
accompanied  by  the  national  flag.  A  brassard  for  the  neutralized 
personnel  shall  also  be  allowed,  but  the  delivery  thereof  shall  be 
regulated  by  military  authority.  Flags  and  brassards  shall  show  a 
red  cross  on  white  grouna. 

ART.  VIII.  The  details  of  execution  of  the  present  Convention 
shall  be  regulated  by  the  commanders  in  chief  of  belligerent  armies, 
according  to  the  instructions  of  their  respective  governments,  and  in 
conformity  with  the  general  principles  laid  down  in  this  Convention. 

ART.  IX.  The  high  contracting  powers  have  agreed  to  communi- 
cate the  present  Convention  to  those  governments  which  have  not 
found  it  convenient  to  send  plenipotentiaries  to  the  International 
Convention  at  Geneva,  with  an  invitation  to  accede  thereto.  The- 
protocol   is  for  that  purpose  left  open. 

ART.  X.  The  present  Convention  shall  be  ratified,  and  the  ratifi- 
cations exchanged  at  Berne  in  four  months,  or  sooner  if  possible. 

ADDITIONAL  ARTICLES.a 

ART.  I.  The  persons  designated  in  Article  II.  of  the  Convention, 
shall  continue,  after  the  occupation  by  the  enemy,  to  take  the  neces- 
sary care  of  the  sick  and  wounded  in  the  ambulance  or  hospital 
which  they  serve.  When  they  request  to  withdraw,  the  commander 
of  the  occupying  troops  shall  fix  the  time  of  departure,  which  he 
shall  not  be  allowed  to  put  off  for  more  than  a  brief  period,  in  case 
of  military  necessity. 

ART.  II.  Arrangements  shall  be  made  by  the  belligerent  powers 
to  insure  to  neutralized  persons  fallen  into  the  hands  of  the  enemy's 
army  the  enjoyment  of  their  entire  salary. 

ART.  III.  Under  the  conditions  provided  for  in  Articles  I.  and  IV. 
of  the  Convention  the  name  "ambulance"?;  applies  to  field  hospita's 
and  other  temporary  establishments  which  follow  the  troops  on  the 
field  of  battle  to  receive  the  sick  and  wounded. 

ART.  IV.  In  conformity  with  the  spirit  of  Articles  V.  of  the  Con- 
vention and  with  the  reservations  contained   in  the  protocol  of  1864,. 


aThe  additional  articles  now  are  generally  accepted  and  have  ac- 
quired the  force  and  effect  of  an   international   treaty. 

bThis  interpretation  is  of  especial  importance  in  the  United  States, 
where  the  term  "ambulance"  is  generally  applied  to  a  vehicle  for 
the  transportation  of  the  sick  and  wounded. 


APPENDIX    VI.  6^9 

It  is  explained  that  in  the  apportionment  of  the  burdens  relating  to 
-quartering  of  troops  and  contributions  of  war  an  equitable  allow- 
ance only  shall  be  made  for  the  charitable  zeal  displayed  by 
inhabitants. 

ART.  V.  In  addition  to  Article  VI.  of  the  Convention,  it  is  stip- 
ulated that,  with  the  reservation  of  officers  whose  detention  might 
be  important  to  the  fate  of  arms,  and  within  the  limits  fixed  by  the 
second  paragraph  of  that  article,  the  wounded  who  may  fall  into 
the  hands  of  the  enemy,  even  if  not  considered  incapable  of  serving, 
shall  be  sent  back  to  their  country  after  they  are  cured,  or  sooner, 
if  possible,  on  condition,  nevertheless,  of  not  again  bearing  arms 
during  the  continuance  of  the  war. 

ART.  VI.  The  boats  which,  at  their  own  risk  and  peril,  during 
and  after  an  engagement,  pick  up  the  shipwrecked  or  wounded,  or 
which,  having  picked  them  up,  convey  them  on  board  a  neutral  or 
hospital  ship,  shall  enjoy,  until  the  accomplishment  of  their  mission, 
the  character  of  neutrality,  as  far  as  the  circumstances  of  the  en- 
gagement and  the  position  of  the  ships  engaged  will  permit. 

The  appreciation  of  these  circumstances  is  intrusted  to  the  human- 
ity of  all  the  combatants.  The  shipwrecked  and  wounded  thus  picked 
up  and  saved  must  not  serve  again  during  the  continuance  of  the  war. 

ART.  VII.  The  religious,  medical,  and  hospital  personnel  of  any 
•captured  vessel  are  declared  neutral,  and,  on  leaving  the  ship,  may 
remove  the  articles  and  surgical  instruments  which  are  their  pri- 
vate property. 

ART.  VIII.  The  personnel  designated  in  the  preceding  article 
must  continue  to  fulfill  their  functions  in  the  captured  ship,  assist- 
ing in  the  removal  of  the  wounded  made  by  the  victorious  party; 
they  will  then  be  at  liberty  to  return  to  their  country,  in  conform- 
ity with   the   second   paragraph   of   the   first  additional   article. 

The  stipulations  of  the  second  additional  article  are  applicable  to 
the   salaries  of  this  personnel. 

ART.  IX.  Military  hospital  ships  remain  subject  to  the  laws  of 
w^ar  in  all  that  concerns  their  equipment  and  supplies;  they  become 
the  property  of  the  captor,  but  the  latter  must  not  divert  them  from 
their   special   assignment   during    the   continuance   of    the   war. 

ART.  X.  Every  merchant  vessel,  to  whatever  nation  it  may  be- 
long, loaded  exclusively  with  sick  and  wounded  being  removed,  is 
protected  by  neutrality;  but  the  mere  fact,  noted  on  the  ship's  books, 
that  the  vessel  has  been  visited  by  one  of  the  enemy's  cruisers,  ren- 
•ders  the  sick  and  wounded  incapable  of  serving  during  the  continu- 
ance of  the  war.  The  cruiser  shall  even  have  the  right  of  putting 
on  b^ard  an  officer  to  accompany  the  convoy,  and  thus  verify  the 
good   faith  of  the  operation. 

If  1  he  merchant  ship  also  carries  a  cargo,  her  neutrality  will  still 
prote  ;t  it,  provided  that  such  cargo  is  not  of  a  nature  to  be  confis- 
cated by  the  belligerent. 

Tho  belligerents  retain  the  right  to  prohibit  to  neutralized  vessels 
all  communication  and  any  course  which  they  may  deem  prejudicial 
1o  the  secrecy  of  their  operations.  In  urgent  cases  special  conven- 
tions may  be  entered  into  between  commanders  in  chief,  in  order  to 


630  MILITARY    GOVERNMENT   AND    MARTIAL   LAW. 

neutralize  temporarily  and  in  a  special  manner  tlie  vessels  intendea; 
for  the  removal  of  the  sick  and  wounded. 

ART.  XL  Wounded  or  sick  sailors  and  soldiers,  when  embarked, 
to  whatever  nation  they  belong,  shall  be  protected  and  taken  care 
of  by  their  captors. 

Their  return  to  their  own  country  is  subject  to  the  provisions  of 
Article  VI.  of  the  Convention,   and  of  additional  Article  V. 

ART.  XII.  The  distinctive  flag  to  be  used  with  the  national  flag, 
in  order  to  indicate  any  vessel  or  boat  which  may  claim  the  benefit 
of  neutrality,  in  virtue  of  the  principles  of  this  Convention,  is  a. 
white  flag  with  a  red  cross.  The  belligerents  may  exercise  in  this 
respect  any  mode  of  verification  which   they  may  deem  necessary. 

Military  hospital  ships  shall  be  distinguished  by  being  painted 
white  outside,   with  green   strake. 

ART.  XIII.  The  hospital  ships  which  are  equipped  at  the  expense 
of  the  aid  societies  recognized  by  the  governments  signing  this  Con- 
vention, and  which  are  furnished  with  a  commission  emanating  from 
the  sovereign,  who  shall  have  given  express  authority  for  tlieir  being 
fitted  out,  and  with  a  certificate  from  the  proper  naval  authority 
that  they  have  been  placed  under  his  control  during  their  fitting  out 
and  on  their  final  departure,  and  that  they  were  then  appropriated 
solely  to  the  purpose  of  tlieir  mission,  shall  be  considered  neutral, 
as  well  as  the  whole  of  their  personnel.  They  shall  be  respected 
and  protected  by  the  belligerents. 

They  shall  make  themselves  known  by  hoisting,  together  witii 
their  national  flag,  the  white  flag  with  a  red  cross.  The  distinctive 
mark  of  their  personnel,  while  performing  their  duties,  shall  be  a 
brassard  of  the  same  colors.  The  outer  painting  of  these  hospital 
ships   shall   be   white   with    red   strake. 

These  ships  shall  bear  aid  and  assistance  to  wounded  and  ship- 
wrecked belligerents,   without   distinction    of  nationality. 

They  must  take  care  not  to  Interfere  in  any  way  with  the  move- 
ments of  the  combatants.  During  and  after  the  battle  they  will  act 
at  their  own  risk  and  peril. 

The  belligerents  shall  have  the  right  of  controlling  and  visiting 
them;  they  may  refuse  to  co-operate  with  them,  order  them  to  de- 
part, and  detain  them  If  the  gravity  of  the  circumstances  demands 
such  action. 

The  wounded  and  shipwrecked  picked  up  by  these  ships  can  not 
be  claimed  by  either  of  the  combatants,  and  they  will  be  required 
not  to  serve  during  tlie  continuance  of  the  war 

ART.  XIV.  In  naval  wars  any  strong  presumption  that  either 
belligerent  takes  advantage  of  the  benefits  of  neutrality  with  any 
other  view  than  the  interest  of  the  sick  and  wounded  gives  the  other 
belligerent,  until  proof  to  the  contrary,  the  right  of  suspending  the 
Convention  as   regards  such  belligerent. 

Should  this  nresumption  become  a  certainty,  notice  may  be  given 
to  such  belligerent  that  the  Convention  is  suspended  with  regard  to 
him  during  the  whole  continuance  of  the  war. 

ART.  XV.  The  present  act  shall  be  drawn  up  In  a  single  origi- 
nal copy,  which  shall  be  deposited  in  the  archives  of  the  Swiss 
Confederation. 


APPENDIX    VI.  .  631 

THE  HAGQE  PEACE  CONFERENCE 

666.  The  Convention  between  the  United  States  and  certain  pow- 
ers for  the  adaptation  to  maritime  warfare  of  the  principles  of  the 
Geneva  Convention,  signed  at  The  Hague,  July  29,  1899,  and  pub- 
lished  in  G.  O.  No.   4,  A.   G.   O.,   1902,   is  as  follows: 

ART.  I.  Military  hospital  ships — that  is  to  say,  ships  constructed 
or  assigned  by  staters  specially  and  solely  for  the  purpose  of  assist- 
ing the  wounded,  sick,  or  shipwrecked,  and  the  names  of  which  shall 
have  been  communicated  to  the  belligerent  powers  at  the  beginning 
or  during  the  course  of  hostilities,  and  in  any  case  before  they  ar5 
employed,  shall  be  respected  and  cannot  be  captured  while  hostil- 
ities last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war 
as  regards  their  stay  in  a  neutral  port. 

ART.  II.  Hospital  ships  equipped  wholly  or  in  part  at  the  cost  of 
private  individuals  or  officially  recognized  relief  societies  shall  like- 
wise be  respected  and  exempt  from  capture,  provided  the  belligerent 
power  to  whom  they  belong  has  given  them  an  official  commission 
and  has  notified  their  names  to  the  hostile  power  at  the  commence- 
ment of  or  during  hostilities,  and  in  any  case  before  they  are 
employed. 

These  ships  should  be  furnished  with  a  certificate  from  the  com- 
petent authorities,  declaring  that  they  had  been  under  their  control 
while  fitting  out  and  on  final  departure. 

ART.  HI.  Hospital  ships,  equipped  wholly  or  in  part  at  the  cost 
of  private  individuals  or  officially  recognized  societies  of  neutral 
countries,  shall  be  respected  and  exempt  from  capture,  if  the  neu- 
tral power  to  whom  they  belong  has  given  them  an  official  commis- 
sion and  notified  their  names  to  the  belligerent  powers  at  the  com- 
mencement of  or  during  hostilities,  and  in  any  case  before  they  are 
employed. 

ART.  IV.  The  ships  mentioned  in  Articles  I.,  II.,  and  III.  shall 
afford  relief  and  assistance  to  the  wounded,  sick,  and  shipwrecked 
of  the  belligerents  independently  of  their  nationality. 

The  governments  engage  not  to  use  these  ships  for  any  military 
purpose. 

These  ships  must  not  in  any  way  hamper  the  movements  of  the 
combatants. 

During  and  after  rn  engagement  they  will  act  at  their  own  risk 
and  peril. 

The  belligerents  will  have  the  right  to  control  and  visit  them;  they 
can  refuse  to  help  them,  order  them  off,  make  them  take  a  certain 
course,  and  put  a  commissioner  on  board;  they  can  even  detain  them, 
if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  Inscribe  in  the  sailing 
papers  of  the  hospital  ships  the  orders  they  give   them. 

ART.  v.  The  military  hospital  ships  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  green  about 
a  meter  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  II.  and  III.  shall  be  distinguished 
by  being  painted  white  outside  with  a  horizontal  band  of  red  about 
a  meter  and  a  half  in  breadth. 


632  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar 
painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  to- 
gether with  their  national  flag,  the  white  flag  with  a  red  cross  pro- 
vided  by    the   Geneva   Convention. 

ART.  VI.  Neutral  merchantmen,  yychts,  or  vessels,  having,  or  tak- 
ing on  board,  sick,  wounded,  or  shipwrecked  of  the  belligerents,  can 
not  be  captured  for  so  doing,  but  they  are  liable  to  capture  for  any 
violation  of  neutrality  they  may  have  committed. 

ART.  VII.  The  religious,  medical,  or  hospital  staff  of  any  cap- 
tured ship  is  inviolable,  and  its  members  can  not  be  made  prisoners 
of  war.  On  leaving  the  ship,  they  take  with  them  the  objects  and 
surgical   instruments   which   are   their  own   private   property. 

Tliis  staff  shall  continue  to  Discharge  its  duties  while  necessary, 
and  can  afterwards  leave  when  the  commander  in  chief  considers 
it  possible. 

The  belligerents  must  guarantee  to  the  staff  that  has  fallen  into 
their  hands  the   enjoyment   of  their  salaries   intact. 

ART.  VIII.  Sailors  and  soldiers  who  are  taken  on  board  when  sick 
or  wounded,  to  whatever  nation  they  belong,  shall  be  protected  and 
Jooked  after  by   the  captors. 

ART.  IX.  The  shipwrecked,  woundtd,  or  sick  of  one  of  the  bellig- 
erents who  fall  into  the  hands  of  the  other,  are  prisoners  of  war. 
The  captor  must  decide,  according  to  circumstances,  if  it  is  best  to 
keep  them  or  send  them  to  a  port  of  his  own  country,  to  a  neutral 
port,  or  even  to  a  hostile  port.  In  the  last  case,  prisoners  thus  re- 
patriated  can    not   serve   as   long   as    the   war    lasts. 

ART.   X.      (Excluded.) 

ART.  XI.  The  rules  contained  in  the  above  articles  are  binding 
only  on  the  contracting  powers  in  case  of  war  between  two  or  more 
of  them. 

The  said  rules  shall  cease  to  be  binding  from  the  time  when,  in  a 
war  between  the  contracting  powers,  c ne  of  the  belligerents  is  joined 
by  a  non-contracting  power. 

«  *  •  *  • 

ART.  XIV.  In  the  event  of  one  of  the  high  contracting  parties 
denouncing  the  present  Convention,  such  denunciation  shall  not  take 
effect  until  a  year  after  the  notification  made  in  writing  to  the  Neth- 
erlands Government,  and  forthwith  communicated  by  it  to  all  the 
other  contracting  powers. 

This  denunciation  shall   only   affect  the  notifying  power. 


Article  XII. 

INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES  OF   THE 
UNITED  STATES  IN  TIME  OF  WAR.a 

SECTION     I Military    government Military    jarlsdietion.^Milltar7 

necessity. — Hostilities. 

MILITARY   GOVERNMENT. 

667.  A  place,  district,  or  country  occupied  by  an  enemy  stands,  In 
consequence  of  that  fact,  under  the  military  government  of  the  in- 
vading or  occupying  army,  whetlier  any  proclamation  declaring  the 
same,  or  any  public  warning  to  the  inhabitants,  has  been  issued  or 
not.  Military  government  is  the  immediate  and  direct  effect  and 
consequence  of  occupation,  which  includes  only  the  territory  where 
the  authority  of  the  hostile  army  is  established  and  in  a  position 
to  be  exercised. 

The  presence  of  a  hostile  army  proclaims  its  military  government. 

668.  Military  government  does  not  cease  during  the  hostile  occu- 
pation, except  by  special  proclamation  issued  by  the  commander-in- 
chief,  or  by  special  mention  in  the  treaty  of  peace  terminating  the 
war  and  stipulating  occupation  of  places  or  of  a  territory  pending 
the   fulfillment  of  certain  agreements. 

669.  Military  government  in  a  hostile  country  consists  in  the  sus- 
pension, by  the  occupying  military  authority,  of  the  domestic  admin- 
istration and  government  in  the  place  or  territory  occupied;  in  the 
substitution  of  military  rule  and  force  for  tlie  same;  and  in  the  dic- 
tation of  general  laws,  as  far  as  military  necessity  requires  this  sus- 
pension, substitution,  and  dictation. 

670.  Military  government  applies  only  to  foreign  territory  and  to 
domestic  territory  in  whicla  enemies,  or  rebels  treated  as  belliger- 
ents, are  operating.  The  military  commander  is,  with  rare  excep- 
tions, amenable  for  his  acts  in  accordance  with  the  laws  and  cus- 
toms of  war  only.  Military  government  must  be  carefully  distin- 
guished from  martial  law,  which  is  of  domestic  application  only;  for 
in  the  latter  case  the  legality  of  the  acts  of  a  military  officer  may 
be  questioned  not  only  by  his  military  superiors,  but  also  by  the 
civil  tribunals  of  the  territory  in  which  such  martial  law  may  be 
exercised. 

671.  Military  government  simply  is  military  authority  exercised 
in  accordance  with  the  laws  and  usages  of  war.  Military  oppression 
is  not  military  government;  it  is  an  abuse  of  the  power  which  the 
law  of  war  confers.  As  military  government  is  carried  on  by  mili- 
tary   force,    it    is    incumbent    upon    those    who    administer    It    to    be 


oOriginally   prepared   by    Francis   Lieber,    LL.D.,    and    published    in 
General  Orders,   No.   100,   Adjutant-General's  Office,   1863. 


634  MILITARY    GOVERNMENT    AND   MARTIAL   LAW. 

strictly  guided  by  the  principles  of  justice,  honor,  and  humanity- 
virtues  adorning  a  soldier  even  more  than  other  men,  for  the  verj' 
reason  that  he  possesses  the  power  of  his  arms  against  the  unarmed. 

672.  Military  government  should  be  less  stringent  in  places  and 
countries  fully  occupied  and  fairly  submissive.  Much  greater  sever- 
ity 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  when  face  to  face  with  the  enemy,  because  of  the 
absolute  necessities  of  the  ease.  Even  in  the  commander's  own  coun- 
try, the  duty  of  stopping  the  progress  of  the  invasion  and  eventu- 
ally expelling  the  enemy  rises  superior  to  all  ordinary  considerations. 

673.  All  civil  and  criminal  law  of  the  places  and  territories  cap- 
tured from  the  enemy  shall  continue  to  take  its  usual  course  under 
military  government,  unless,  in  case  of  absolute  impediment,  the 
same  be  interrupted  or  modified  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 
local  character,  cease  under  military  government,  or  continue  only 
with  the  sanction,  or,  if  deemed  necessary,  with  the  participation 
of  the  invader. 

The  commander  of  the  occupying  forces  may  proclaim  that  the 
administration  of  all  civil  and  criminal  law  shall,  either  wholly  or 
in  part,  continue  as  in  time  of  peace. 

The  commanding  officer  may  require  the  magistrates  and  other 
civil  officials  of  the  occupied  territory  to  take  an  oath  of  temporary 
allegiance  or  an  oath  of  fidelity  to  the  victorious  government  or  rul- 
ers, as  a  condition  to  the  continuance  of  their  functions.  But 
whether  such  oath  has  been  taken  or  not,  the  people  and  their  offi- 
cials owe  strict  obedience,  at  the  peril  of  their  lives,  to  the  military 
government  of  the  occupying  power  as  long  as  it  holds  sway  over 
the  district  or  country. 

674.  Military  government  applies  to  property  and  to  persons, 
whether  the  persons  are  subjects  of  the  enemy  or  aliens  to  his 
country. 

675.  Consuls,  among  American,  European,  and  other  civilized 
nations,  are  not  diplomatic  agents.  Nevertheless,  their  offices  and 
persons  will  be  subjected  to  military  government  in  cases  of  urgent 
necessity  only:  their  property  and  business  are  not  exempt.  Any 
delinquency  they  commit  against  the  established  military  rule  may 
be  punished  as  in  the  case  of  any  other  inhabitant,  and  such  punish- 
ment furnishes  no   reasonable  ground   for   international  complaint. 

676.  The  functions  of  ambassadors,  ministers,  or  other  diplomatic 
agents  accredited  by  neutral  powers  to  the  hostile  government  cease, 
so  far  as  regards  the  displaced  government;  but  the  conquering  or 
occupying  power  usually  recognizes  them  as  temporarily  accredited 
to  itself. 

677.  Military  government  affects  chiefly  the  police  of  occupied 
territory  and  the  collection  of  public  revenue,  whether  at  the  rate 
imposed  by  the  expelled  government  or  according  to  a  new  scale 
prescribed  by  the  invader.  Its  principal  object  Is  to  provide  for 
the  security  of  the  Invading  army  and  to  contribute  to  its  support 
and  efficiency. 


1 


I 


APPENDIX    VI  035 

678.  Whenever  feasible,  military  govfcrnment  is  carried  out  in 
cases  of  individual  offenders  by  military  courts.  Sentences  of  death 
shall  be  executed  only  with  the  approval  of  the  President,  provided 
the  urgency  of  the  case  does  not  require  a  speedier  execution,  and 
then   only   with    the   approval   of   the   commander   in   chief. 

MILITARY    JURISDICTION. 

679.  Military  jurisdiction  is  of  two  kinds:  first,  that  which  is 
conferred  and  defined  by  statute;  second,  that  which  is  derived  from 
the  common  law  of  war.  Military  offences  under  the  statute  law 
must  be  tried  in  the  manner  therein  directed;  but  military  offences 
which  do  not  come  within  the  statute  must  be  tried  and  punished 
under  the  common  law  of  war.  The  character  of  the  courts  which 
ey"-f.ise  these  jurisdictions  depends  upon  the  local  laws  of  each  par- 
tic      ir  country. 

In  the  organized  and  active  land  forces  of  the  United  States  the 
first  is  exercised  by  courts-martial,  while  cases  which  do  not  come 
within  the  Rules  and  Articles  of  War,  or  the  jurisdiction  conferred 
by  statute  on  courts-martial,  are   tried  by  mtUtary  commissions. 

MILITARY    NECESSITY. 

680.  Military  necessity,  as  understood  by  modern  civilized  nations, 
consists  in  the  urgency  of  those  measures  which  are  indispensable 
for  securing  the  end  of  the  war,  and  which  are  lawful  according  to 
the  modern   law  and  usages  of  war. 

681.  Military  necessity  admits  of  all  direct  destruction  of  life  or 
limb  of  armed  enemies,  and  of  other  persons  whose  destruction  is 
incidentally  unavotduble  in  the  armed  contests  of  the  war;  it  allows 
of  the  capturing  of  every  armed  enemy  and  of  every  enemy  of  im- 
portance to  the  hostile  government,  or  of  peculiar  danger  to  the 
captor;  it  allows  of  all  destruction  of  property,  and  obstruction  of 
the  ways  and  channels  of  traffic,  travel,  or  communication,  and  of 
all  withholding  of  sustenance  or  means  of  life  from  the  enemy;  of 
the  appropriation  of  whatever  an  enemy's  country  affords  necessary 
for  the  subsistence  and  safety  of  the  army,  and  of  such  deception 
as  does  not  involve  the  breaking  of  good  faith,  either  positively 
pledged  regarding  agreements  entered  into  during  the  war,  or  sup- 
posed by  the  modern  law  of  war  to   exist. 

682.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  in- 
fliction of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of 
maiming  or  wounding  except  in  fight,  nor  of  torture  to  extort  con- 
fessions. It  does  not  admit  of  the  use  of  poison  in  any  way,  nor  of 
the  wanton  devastation  of  a  district.  It  admits  of  deception,  but 
disclaims  acts  of  perfidy;  and.  in  general,  military  necessity  does  not 
include  any  act  of  hostility  which  makes  the  return  to  peace  unnec- 
essarily difficult. 

HOSTILITIES. 

683.  Public  war  is  a  state  of  armed  hostility  between  states  or 
parts  of  states.  It  is  a  law  and  requisite  of  civilized  existence  that 
men   live  in   political,   continuous  societies,   forming  organized   units, 


636  MILITAEY   GOVERNMENT  AND  MARTIAL  LAW. 

called  states  or  nations,  whose  constituents  bear,   enjoy,   and  suffer, 
advance  and  retrograde  together,  in  peace  and  in  war. 

684.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy, 
as  one  of  the  members  of  the  hostile  state  or  nation,  and  as  such  Is 
subject  to  the  hardships  of  war. 

685.  Nevertheless,  as  civilization  has  advanced  during  the  last 
centuries,  so  has  likewise  steadily  advanced,  especially  in  war  on 
land,  the  distinction  between  the  private  individual  belonging  to  a 
hostile  country  and  the  hostile  country  itself,  with  its  men  in  arms. 
The  principle  has  been  more  and  more  acknowledged  that  the  un- 
armed citizen  is  to  be  spared  in  person,  property,  and  honor  as 
much  as  the  exigencies  of  war  will  permit. 

686.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried 
off  to  distant  parts,  and  the  inoffensive  Individual  is  as  little  dis- 
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  besieged  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  crueltj^  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  between  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  quarter  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  for  similar  acts.  Under  such 
extraordinary  circumstances  troops  who  give  no  quarter  still  have 
no  right  to  kill  enemies  already  disabled  on  the  ground  and  who 
have  ceased  fighting,  or  prisoners  captured  by  other  troops. 

693.  All   troops  of   the   enemy  discovered   or   positively   known    to 


APPENDIX    VI.  637 

give  no  quarter   in   general,   or  to  any  portion   of  our  army,   receive 
none. 

G94.  Detachments  or  troops  who  disguise  themselves  in  the  uni- 
form of  their  enemies  for  the  purpose  of  taking  treacherous  advan- 
tage of  the  resemblance,  can  expect  no  quarter  if  they  be  taken 
in    the    act. 

695.  If  a  commander,  under  stress  of  urgent  necessity,  utilizes 
articles  of  uijiform  captured  from  the  enemy,  sufficient  dissimilarity 
in  the  uniform  as  a  whole  must  remain  to  protect  troops  and  Indi- 
vidual wearers  against  the  charge  of  willful  deception. 

696.  Quarter  having  been  given  to  an  individual  enemy  under 
misapprehension  of  his  true  character,  he  may  nevertheless  be  or- 
dered to  suffer  death  if  within  three  days  after  capture  it  Is  dis- 
covered that  he  belongs  to  an  organization  which  is  notorious  for 
not  giving  quarter. 

C97.  The  use  of  the  enemy's  national  standard,  flag,  or  other  em- 
blem of  nationality  for  the  purpose  of  deceiving  the  enemy  in  bat- 
tle is  an  act  of  perfidy  by  which  the  troops  resorting  to  it  lose  all 
claim    to   the   protection   of   the   laws   of   war. 

While  deception  in  war  is  permitted  as  a  necessary  means  of  hos- 
tility and  is  consistent  with  honorable  warfare,  the  common  law  ^f 
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. 

098.  Modern  wars  are  not  internecine  wars,  in  which  the  killing 
of  the  enemy  is  the  object.  The  destruction  of  the  enemy  in  mod- 
ern war,  and  indeed,  modern  war  itself,  are  means  to  attain  that 
object  of  the  belligerent  which  lies  beyond  the  war.  Unnecessary 
or   revengeful   destruction   of   life   is   not   lawful. 

The  law  of  war  does  not  allow  proclaiming  either  an  individual 
belonging  to  the  hostile  army,  or  a  citizen,  or  a  subject  of  the  hos- 
tile government,  an  outlaw,  who  may  be  slain  without  trial  by  any 
captor,  any  more  than  the  modern  law  of  peace  allows  such  inten- 
tional outlawry;  on  the  contrary,  it  abhors  such  outrage.  The  stern- 
est retaliation  should  follow  the  murder  committed  in  consequence 
of  such  proclamation,  made  by  whatever  authority.  Civilized  nations 
look  with  horror  upon  offers  of  rewards  for  the  assassination  of 
enemies  as  relapses  into  barbarism. 

699.  Firing  upon  the  sentinels  of  the  enemy's  outposts,  as  an 
individual  act,  is  strictly  prohibited.  An  attack  may,  however,  be 
made  on  any  part  of  the  enemy's  outposts  pursuant  to  the  orders 
of  officers,  with  the  express  or  implied  sanction  of  higher  authority. 

700.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells,  or 
food,  or  arms,  is  wholly  excluded  from  modern  warfare.  He  that 
'jses  it  puts  himself  beyond  the  pale  of  the  law  and  usages  of  war. 

701.  Whoever  intentionally  inflicts  additional  wounds  on  or  kills 
an  enemy  already  wholly  disabled,  or  who  orders  or  encourages  sol- 
diers to  do  so,  shall,  if  duly  convicted,  suffer  death,  whether  he 
belongs  to  the  organized  and  active  land  forces  of  the  United  States, 
or  is  an  enemy  captured  after  having  committed  such   a   misdeed. 

702.  The  law  of  war  can  no  more  wholly  dispense  with  retalia- 
tion than  can  the  law  of  nations,  of  which  it  is  a  branch.     Yet  civ- 


638  MILITARY   GOVERNMENT   AND  MAETIAL  LAW. 

llized  nations  acknowledge  retaliation  as  the  sternest  feature  of  war. 
A  reckless  enemy  often  leaves  to  his  opponent  no  other  means  of 
securing  himself   against   the    repetition   of   barbarous   outrage. 

703.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure 
of  mere  revenge,  but  only  as  a  means  of  protective  retribution,  and, 
moreover,  cautiously  and  unavoidably.  The  facts  in  a  case  having 
been  ascertained  with  absolute  certainty,  they  may,  if  practicable, 
be  communicated  to  the  commander  of  the  enemy's  forces  for  such 
action  as  he  may  deem  appropriate.  If  the  injury  complained  of  is 
then  repaired,  or  if  satisfactory  explanation  of  the  occurrence  is 
offered,  with  assurance  of  the  continued  enforcement  of  the  laws 
of  war  and  punishm  ;nt  of  offenders,  all  ground  for  retaliation 
-vanishes. 

When  reprisals  are  absolutely  nec<_ssary,  they  will  only  be  resorted 
to  with  the  express  authority  of  the  general  in  chief  and  must  not 
exceed  in  degree  the  violation  of  the  law  of  war  committed  by  the 
enemy.  The  methods  of  retaliation  must  conform  to  the  laws  of 
humanity  and  morality;  the  maximum  retribution  for  the  fiendish 
atrocities  of  savage  and  half-civilized  enemies  is  the  infliction  of 
death  l>y  hanging  or  shooting. 

No  general  penalty,  pecuniary  or  otherwise,  shall  be  inflicted  on 
the  population  on  account  of  the  acts  of  Individuals  for  which  it 
can  not  be  regarded  as  collectively  responsible. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  far- 
ther and  farther  from  the  mitigating  rules  of  regular  war,  and  by 
rapid  steps  leads  them  nearer  to  the  internecine  wars  of  savages. 

704.  Ever  since  the  formation  and  co-existence  of  modern  nations, 
and  ever  since  wars  have  become  great  national  conflicts,  war  has 
come  to  be  acknowledged  to  be  not  its  own  end,  but  the  means  of 
attaining  great  ends  of  state,  or  to  consist  in  defence  against  wrong. 

The  more  vigorously  wars  are  pursued,  the  more  humane  they 
are  in  the  end;  but  the  law  of  war  imposes  many  restrictions,  based 
on  principles  of  justice,  faith,  honor,  and  humanity,  on  the  means 
and  methods  adopted  to   injure  the   enemy. 

SECTION  II — Public  and  private  property  of  the  enemy. — Protection 
of  persons,  of  religion,  and  of  tlie  arts  and  sciences. — Punishment 
of  crimes  against  the  inhabitants  of  hostile  countries. 

PUBLIC   PROPERTY. 

705.  A  victorious  army  appropriates  all  public  money,  seizes  all 
public  movable  property  and  holds  the  same  awaiting  Instructions 
from  its  government,  and  sequesters  for  Its  own  benefit  or  for  its 
government  all  the  revenues  of  real  property  belonging  to  the  hos- 
tile government  or  nation.  All  means  of  public  transportation  and 
communication  may  be  seized  and  used  by  the  invading  army.  The 
destruction  of  public  property,  except  as  demanded  by  military  neces- 
sity, is  prohibited.  The  title  to  public  real  property  remains  In 
abeyance  until  finally  determined  in  the  treaty  of  peace. 

706.  As  a  general  rule,  churches,  hospitals,  or  other  establish- 
ments of  an  exclusively  charitable  character,  and  establishments  of 
education   or  institutions   for   the   promotion    of   knowledge,    such   as 


APPENDIX   VI.  639 

public  schools,  universities,  academies,  observatories,  and  museums, 
are  not  to  be  considered  public  property  in  the  sense  of  paragraph 
705;  but  they  may  be  used  when  the  public  service  demands  it,  and 
the   property  belonging  to  them   may  be   taxed. 

707.  Works  of  art,  libraries,  scientific  collections,  and  valuable 
astronomical  and  meteorological  instruments,  as  well  as  hospitals, 
must  be  protected  against  all  avoidable  damage,  even  when  con- 
tained in  fortified  places  undergoing  siege.  Such  works  of  art, 
libraries,  collections,  and  instruments  will  not  be  removed,  except 
as  a  measure  of  retaliation  for  similar  acts.  In  no  case  shall  they 
be  sold  or  given  away,  nor  shall  they  ever  be  privately  appropriated, 
or  wantonly  destroyed  or  injured. 

PRIVATE  PROPERTY. 

708.  The  United  States  acknowledges  and  protects  religion  and 
morality;  strictly  private  property;  the  persons  of  the  inhabitants, 
especially  those  of  women,  and  the  sacredness  of  domestic  relations. 
Offences  to  the  contrary  shall  be  rigorously  punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  in- 
vader to  tax  the  people  or  their  property,  to  levy  forced  loans,  to 
billet  soldiers,  or  to  appropriate  property,  especially  houses,  lands, 
boats  or  ships,  and   churches   for  temporary  and   military  uses. 

709.  No  tax  shall  be  collected  except  under  a  written  order  and 
on   the   responsibility   of  a  commander   in   chief. 

This  collection  shall  only  take  place,  as  far  as  possible,  in  accord- 
ance with  the  rules  in  existence  and  the  assessment  of  taxes  in  force. 
For  every  payment  a  receipt  shall  be  given  to  the  taxpayer. 

710.  Private  property,  unless  forfeited  by  crimes  or  by  offences  of 
the  owner,  can  be  seized  only  by  way  of  requisition  or  when  justi- 
fied by  military  necessity  for  the  support  or  other  benefit  of  the 
army  or  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  for- 
mal receipts  to  be  given,  which  may  serve  the  spoliated  owner  to 
obtain    indemnity. 

711.  The  salaries  of  civil  officers  of  the  occupied  territory,  such 
as  judges  and  administrative  or  police  officers,  who  remain,  and 
with  the  sanction  of  the  military  government  continue  the  work  of 
their  office  as  far  as  practicable  under  the  circumstances  arising  out 
of  the  war,  shall  be  paid  out  of  the  public  revenue  of  the  invaded 
territory;  and  other  necessary  expenses  of  administration  shall  be 
provided  for  out  of  the  same  fund. 

PUNISHMENT    OF    CRIMES. 

712.  There  exists  no  law  or  body  of  authoritative  rules  of  action 
between  hostile  arn^ies'  except  that  branch  of  the  law  of  nature  and 
nations   which   is   called   the  law   and   usages   of  war  on   land. 

All  municipal  law  of  the  ground  on  which  the  armies  stand,  or  of 
the  countries  to  which  they  belong,  is  silent  and  of  no  effect  be- 
tween armies  in  the  field. 

713.  All  wanton  violence  committed  against  persons  In  the  In- 
vaded  country,    all    destruction   of   property   not   commanded   by    the 


640  MILITARY   GOVEKNMENT    AND   MARTIAL   LAW. 

authorized  officer,  all  robbery,  all  pillage  or  sacking,  even  after  tak- 
ing 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  punishment  as  may  seem  adequate  for  the  grav- 
ity of  the  offence. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  vio- 
lence, and  disobeying  a  superior  ordering  him  to  abstain  from  It, 
rnay'  be  lawfully  killeu  on   the  spot  by  such   superior. 

■  714.  All  captures  and  booty  belong,  according  to  the  modern  law 
of  war,   primarily   to   the   government   of   the   captor. 

Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their  posi- 
tion or  power  in  the  hostile  country  for  private  gain,  nor  even  for 
commercial  transactions  otherwise  legitimate.  Offrnces  to  the  con- 
trary committed  by  commissioned  officers  will  be  punished  by  dis- 
missal from  the  military  service  or  by  such  other  punishment  as  the 
nature  of  the  offence  may  require;  if  by  soldiers,  they  shall  be  pun- 
ished according  to  the  nature  of  the  offence. 

SKCTION    III. — Prisoner.s   of    war. — Deserters. — Hostages. 

PRISONERS    OF    WAR. 

715.  A  prisoner  of  war  is  a  person,  armed  or  unarmed,  forming 
part  of  the  hostile  army  or  attached  to  it  for  active  aid,  and  who 
has  fallen  into  the  hands  of  the  captor,  on  the  field  or  in  the  hos- 
pital,   by   individual   surrender   or   by   capitulation. 

When  thus  captured,  all  soldiers  of  whatever  species  of  arms;  all 
men  belonging  to  a  rising  en  masse  of  the  hostile  country;  all  who 
are  attached  to  the  army  for  its  efficiency  and  promote  directly  the 
object  of  the  war,  except  persons  hereinafter  specifically  mentioned; 
all  disabled  men  and  officers  on  the  field  or  elsewhere;  all  enemies 
who  have  thrown  away  their  arms  and  asked  for  quarter,  are  pris- 
oners of  war  and  as  such  exposed  to  the  inconveniences  as  well  as 
entitled   to    the   privileges   pertaining    to    that    condition. 

716.  Moreover,  civilians  who  accompany  an  army  for  whatever 
purpose,  such  as  sutlers,  contractors,  interpreters,  and  newspaper 
correspondents,  if  captured,   may  be  detained  as  prisoners  of  war. 

The  head  of  the  hostile  government  and  members,  male  or  female, 
of  its  reigning  family,  the  chief  officers  of  the  hostile  country,  its 
diplomatic  agents,  and  all  persons  of  special  use  to  the  hostile  army 
or  its  government,  become  prisoners  of  war  if  captured  on  territory 
not  belonging  to  a  neutral  power. 

717.  If  the  people  of  a  country,  or  of  that  portion  thereof  not  yet 
occupied  by  the  enemy,  rise  en  masse  under  a  duly  authorized  levy 
to  resist  the  invader,  they  shall  be  considered  as  belligerents  if  they 
observe  the  laws  and  usages  of  war,  and,  in  case  of  capture,  shall 
be  treated  as  prisoners  of  war. 

,fa.  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  to  their  protection. 


APPENDIX  VI.  041 

719.  As  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  of- 
fenses. No  belligerent  has  a  right  to  declare  that  enemies  of  a  cer- 
tain class,  color,  or  condition,  when  properly  organized  as  soldiers, 
will  not  be  treated  by  him  as  public  enemies. 

720.  When  sovereign  states  make  war  upon  each  other,  the  law 
of  nations  does  not  inquire  into  the  reasons  for  such  action,  and 
therefore,  in  regard  to  the  treatment  of  prisoners,  permits  no  de- 
parture from  the  rules  of  regular  warfare  in  case  the  prisoners 
belong  to  the  army  of  a  government  which  the  captor  considers  a 
wanton   and  unjust  assailant. 

721.  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a 
public  enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  inten- 
tional infliction  of  any  suffering  or  disgrace,  by  cruel  imprisonment, 
want   of   food,   by  mutilation,   death,   or   any   other   barbarity. 

722.  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  can  not  retaliate  by  enslavement;  therefore 
death  must  be  the  retaliation  for  this  crime  against  the  law  of 
nations. 

723.  A  prisoner  of  war  remains  answerable  for  his  crimes  com- 
mitted against  the  captor's  army  or  people,  committed  before  iie 
was  captured,  and  for  which  he  has  not  been  punislied  by  his  own 
authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory 
measures. 

724.  Money  and  other  valuables  on  the  person  of  a  prisoner, 
such  as  watches  or  jewelry,  as  well  as  extra  clothing,  are  to  be 
regarded  as  the  private  property  of  the  prisoner,  and  the  appropria- 
tion 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  sur- 
plus, after  providing  for  their  own  support,  appropriated  for  tlie 
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  may  have  been  placed  in  the  private  luggage  of  the 
prisoners. 

725.  All  ofRcers,  when  captured,  must  surrender  their  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  approbation  of  his  humane  treatment  of  prisoners  before  his  capt- 
ure. The  captured  officer  to  whom  they  may  be  restored  can  not 
wear  them  during  captivity. 

726.  A  prisoner  of  war,  being  a  public  enemy,  is  the  prisoner  of 
the  government,  and  not  of  the  captgr.  No  ransom  can  be  paid  l,y 
a  prisoner  of  war  to   his   individual  captor   or   to   any   officer   in   com- 

'1— 


642  MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

mand.     The   government    alone    releases    captives,    according    to    rules 
prescribed  by  itself. 

727.  Every  prisoner  of  war,  if  interrogated  on  the  subject,  is  re- 
quired to  declare  his  true  name  and  rank,  and,  in  case  of  infringe- 
ment of  this  rule,  may  be  exposed  to  a  restriction  of  the  beneflta 
accorded  to  prisoners  of  war  of  his  class. 

728.  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  pris- 
oners in  order  to  extort  the  desired  information  or  to  punish  them 
for  having  given   false   information. 

729.  Prisoners  of  war  are  subject  to  such  restriction  of  liberty  ys- 
may  be  deemed  necessary  on  account  of  safety,  but  they  are  to  ho 
subjected  to  no  other  intentional  suffering  or  indignity.  The  con- 
finement and  mode  of  treating  prisoners  may  be  varied  during  their 
captivity  according  to  the  demands   of  safety. 

730.  The  state  may  utilize  the  labor  of  prisoners  of  war  accord- 
ing to  their  rank  and  aptitude.  Their  tasks  shall  not  be  excessive, 
and  shall  tiave  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  tariits 
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  authorities. 

The  wages  of  the  prisoners  shall  go  toward  improving  their  posi- 
tion, and  the  balance  shall  be  paid  them  at  the  time  of  their  release 
after  deducting  the  cost  of  their  maintenance. 

731.  The  government  into  whose  hands  prisoners  of  war  have 
fallen   is  bound   to   maintain   them. 

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. 

732.  A  prisoner  of  war  who  escapes  may  be  shot  or  otherwi.se 
killed  in  his  flight;  but  neither  death  nor  any  other  punishment 
shall  be  inflicted  upon  him  simply  for  his  attempt  to  escape,  which 
the  law  of  war  does  not  consider  a  crime.  Stricter  means  of  secur- 
ity may  be  used  after  an   unsuccessful  attempt  to  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  ihe  conspirators  may  be  rigorously  pun- 
ished, even  with  death;  and  capital  punishment  may  also  be  inflicted 
upon  prisoners  of  war  discovered  to  have  plotted  rebellion  against 
the  authorities  of  the  captors,  whether  in  union  with  fellow-prison- 
ers or  with  other  persons. 

733.  If  prisoners  of  war,  who  have  given  no  pledge  nor  made  any 
promise  on  their  honor,  escape  forcibly  or  otherwise,  and  are  capt- 
ured again  in  battle  after  having  rejoined  their  own  army,  thoy 
shall  not  be  punished  for  their  escape,  but  shall  be  treated  as  sim- 
ple prisoners  of  war,  although  they  may  be  subjected  to  stricter 
confinement. 


APPENDIX  VI.  643 

734.  The  obligations  of  belligerents  in  respect  to  the  sick  and 
wounded  are  regulated  by  the  Geneva  Convention,  which  is  hereby 
made  part  of  these  instructions  and  will  be  fully  complied  wiLh 
when    tlie    occasion    arises. 

735.  The  enemy's  medical  officers  and  members  of  his  hospito.l 
corps  or  sanitary  service,  including  the  personnel  for  superintend- 
ence, administration,  and  service  of  ambulances,  military  hospitals 
and  transport  of  wounded  (by  land  or  by  water),  and  his  chaplains, 
Bhall  be  considered  neutral  and  will  not  be  made  prisoners  of  war 
unless  the  commanaer  in  chief  has  special  reasons  for  detaining 
them. 

The  conduct  to  be  observed  toward  these  persons,  and  also  with 
respect  to  ambulances,  military  hospitals,  and  liospital  trains  and 
ships,  is  prescribed  in  the  articles  of  the  Geneva  Convention  and  the 
Hague  Peace  Conference. 

736.  A  bureau  for  information  relative  to  prisoners  of  war  shall 
be  instituted,  on  the  commencement  of  hostilities,  in  each  of  the 
belligerent  states,  and,  when  necessary,  in  the  neutral  countries  on 
whose  territory  belligerents  have  been  received.  This  bureau  is  in- 
tended to  ans"wer  all  inquiries  about  prisoners  of  war,  and  is  fur- 
nished by  the  various  services  concerned  with  all  the  necessary 
information  to  enable  it  to  keep  an  individual  return  for  each  pris- 
oner of  war.  It  is  kept  informed  of  internments  and  changes,  as 
well  as  of  admissions  into  hospital,   anu  deaths. 

It  is  also  the  duty  of  the  information  bureau  to  receive  and  col- 
lect all  objects  of  personal  use,  valuables,  letters,  etc..  found  on  the 
baLcletields  or  left  by  prisoners  who  have  died  in  hospital  or  ambu- 
lance, and  to  transmit  tnem  to  those   interested. 

737.  Relief  societies  for  prisoners  of  war,  which  are  regularly  con- 
stituted in  accordance  with  the  law  of  the  country  with  the  object 
of  serving  as  the  intermediary  for  charity,  shall  receive  from  the 
belligerents  for  themselves  and  their  duly  accredited  agents  eveiy 
facility,  within  the  bounds  of  military  requirements  and  adminis- 
trative regulations,  for  the  effective  accomplishment  of  their  humane 
task.  Delegates  of  these  societies  may  be  admitted  to  the  places  of 
internment  for  the  distribution  of  relief,  as  also  to  the  halting-placis 
of  repatriated  prisoners,  if  furnished  with  a  personal  permit  by  tlie 
military  authorities,  and  on  givng  an  engagement  in  writing  to 
comply    with    all    their    regulatons    for    order    and    police. 

738.  The  information  bureau  shall  have  the  privilege  of  free  post- 
age. Letters,  money  orders,  and  valuables,  as  well  as  postal  par- 
cels, destined  for  the  prisoners  of  war  or  dispatched  by  them,  shall 
be  free  of  all  postal  duties,  both  in  the  countries  of  origin  and  des- 
tination,  as  well  as  in   those  through  whicli   they   pass. 

Gifts  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free 
of  all  Duties  of  entry  and  others,  as  well  as  of  payments  for  carriage 
by   th^   government   railways. 

739.  Officers  taken  prisoners  may  receive,  if  necessary,  the  full 
pay  allowed  them  in  this  position  by  their  country's  regulations, 
the  amount  to  be  repaid  by  their  government. 

740.  Prisoners  of  war  shall  enjoy  every  latitude  in  the  exercise 
of  their  religion,   including  attendance   at   their   own   church   services. 


644 


MILITARY  GOVERNME:nT  AND  MARTIAL  LAW. 


provided  only  they  comply  with  the  regulations  for  order  and  police 
issued  by  the  military  authorities. 

741.  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. 

742.  After  the  conclusion  of  peace,  the  repatriation  of  prisoners 
of  war  shall  take  place  as  speedily  as  possible. 

DESERTERS. 

743.  Deserters  from  the  organized  and  active  land  forces  of  the 
United  States,  having  voluntarily  -entered  the  service  of  the  enemy, 
suffer  death  if  they  fall  again  into  the  power  of  the  United  States, 
whether  by  capture  or  by  being  delivered  up.  If  a  deserter  from 
suffer  death  if  they  fall  again  into  the  power  of  the  United  States, 
is  captured  by  the  enemy  and  punished  with  death  or  otherwise,  it 
Is  not  a  breach  of  the  laws  and  usages  or  war,  and  does  not  call 
for  redress  or  retaliation. 

HOSTAGES. 

744.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfillment 
of  an  agreement  concluded  between  belligerents  during  a  war  or  in 
consequence  of  a  war.  Such  hostages  are  rare  in  the  present  age 
between  civilized  powers. 

If  a  hostage  is  accepted,  he  is  treated  iike  a  prisoner  of  war,  ac- 
cording to   rank  and  condition,   as   circumstances   may   permit. 

The  right  to  take  hostages  may  also  be  exercised  by  seizing  locaily 
influential  persons  and  holding  them  as  security  against  damage  to 
railroads,  telegraph  lines,  bridges,  tunnels,  etc.,  on  tlie  line  of  com- 
munications, by  hostile   inhabitants. 

When  the  conduct  of  a  hostile  population  in  occupied  territory 
amounts  to  guerrilla  warfare,  resorting  to  assassination  of  soldiers 
and  intimidation  or  murder  of  citizens  disposed  to  be  loyal,  hostages 
may  be  required  to  march  at  the  head  of  detachments  of  troops,  an! 
they  may  be  held  subject  to  retaliation  after  due  warning. 

SECTION  IV. — Partisans. — Armed  enemies   not   belonging   to   the   lios- 
tile   army. — Scouts. — Armed  prowlers. — AVar   rebels. 

PARTISANS. 

745.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of 
their  army,  but  belonging  to  a  corps  which  acts  detached  from  the 
main  body  for  the  purpose  of  making  inroads  into  the  territory  occu- 
pied by  the  enemy.  If  captured,  they  are  entitled  to  all  the  privi- 
leges of  the  prisoner  of  war. 

GUERRILLAS. 

746.  Men  or  groups  of  men  who  commit  hostilities,  whether  by 
fighting,  by  inroads  for  destruction  or  plunder,  or  by  raids  of  any 
kind,    without    commission,    without    being    part    and    portion    of    the 


I 


I 


APPENDIX  VI.  645 

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  appearance  of  sol- 
diers and  again  assuming  it  when  it  serves  their  purposes — such 
men  or  groups  of  men  are  not  entitled  to  the  privileges  ot  prisoners 
of  war,  but  shall  be  treated  summarily  as  highway  robbers  m- 
pirates. 

In  the  absence  of  general  instructions  or  special  orders  on  this 
subject  from  higher  authority,  the  commanding  officer  on  the  spot 
becomes  responsible  for  suitable  action  whenever  such  men  are 
caught  in  the  act  or  when  there  is  no  reasonable  doubt  of  their 
guilt.  Before  enforcing  the  death  penalty,  the  commanding  officer. 
in  order  to  protect  himself  against  possibility  of  error,  may  con- 
vene a  board  of  three  officers  to  ascertain  the  facts,  with  names  of 
witnesses,  and  later  submit  the  same  with  report  of  action  to  his 
immediate  superior.  If  three  officers  be  not  available,  the  board 
may  consist  01  two,  or  even  one.  If  the  commanding  officer  be  the 
only  officer  present,  such  record  shall  form  part  of  his  report.  Whsn 
such  immediate  example  is  not  deemed  necessary,  the  culprit  may 
be  confined  and  formal  charges  forwarded  as  a  basis  for  trial  by  a 
military  commission,  provided  that  the  exigencies  of  the  campaign 
do  not  render  such  course  impracticable. 

747.  Scouts  or  single  soldiers,  if  disguised  in  civilian  dress  or 
otherwise,  or  in  the  uniform  of  the  army  hostile  to  their  own,  'f 
found  within  or  lurking  about  the  lines  of  the  captor,  are  treated 
as  spies,  and  suffer  death  upon  conviction  oefore  a  military 
commission. 

748.  Armed  prowlers,  by  whatever  names  they  may  be  called. 
who  steal  within  the  lines  of  the  hostile  army,  and  inhabitants  of 
the  enemy's  territory  who  kill  or  rob,  destroy  bridges,  roads,  rail- 
roads, or  canals,  rob  or  destroy  the  mail,  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  the 
authorities  established  by  the  same.  If  captured,  they  may  suffer 
death,  whether  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  prisoners  of  war;  nor  are  they  if  discovered  and  secured 
before  their  conspiracy  has  matured  to  an  actual  rising  or  armed 
violence. 

SECTION    X. — Safe-conduct. — Spies. — AVar    traitors. — Guides. 

SAFE-CONDUCT. 

750.  All  intercourse  between  the  territories  occupied  by  belli.g'- 
erent  armies,  whether  by  traffic,  writjen  or  printed  correspondence, 
cable,  telegraph,  telephone,  or  wireless  telegraphy,  or  in  any  other 
way.  ceases.  This  is  the  general  rule  to  be  observed  without  spe- 
cial proclamation. 


646  MILITARY  GOVERNMENT  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  person 
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  foreljvn 
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. 

SECTION    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  (t 
inferior  rank  may  be  substituted  as  an  equivalent  for  one  of  superior 
rank  as  may  be  agreed  upon  by  cartel,  which  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 
authorit5\ 

770.  The  exchange  of  prisoners  of  war  fs  an  act  of  convenience  to 
both    belligerents.     If   no   general   cartel   has  been   concluded,    it    can 


k 


648  MILITARY  GOVIIRNMENT  AND  MARTIAL  LAW. 

not   be    demanded    by   either    of    them.      No    belligerent    Is    oblig-ed    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   OP  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  'o 
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.  Unnecessary 
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  duriag 
the  engagement.  Firing  is  not  required  to  cease  on  the  appearance 
of  a  flag  of  truce  in   battle. 

775.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  ;ui 
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  spy. 

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  in 
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    officers. 

When  in  occupied  territory  treacherous  use  is  made  of  such  flags 
by  inhabitants  to  convey  information  to  guerrillas  or  detachments 
of  the  enemy's  forces,  such  act  is  doubly  reprehensible  and  justifi- 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  tlie  en;- 
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  10 
the  punishment  of  death  as  deserters.  The  only  aumissible  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  bodios 
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  Y'e 


650  MILITARY  GOVERNMENT  AND   MARTIAL  LAW. 

visited  with  the  punishment  of  death;  but  the  pledge  does  not  refor 
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. 

SECTION    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  peace 
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  officers  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  over  which  their  command  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  hostilities  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  an'^l 
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.'ist 
authority  of  the  belligerent  aggrieved  may  demand  redress  for  the 
infraction  of  an  armistice. 

806.  Belligerents  sometimes  conclude  an  armistice  while  th'^ir 
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  ijo 
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  their 
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  ea-.-h 
claiming  to  be  the  legitimate  government.  The  term  is  also  some- 
times applied  to  war  of  rebellion,  when  the  rebellious  provinces  -n- 
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  a  war  between  the   legitimate   government   of 


652  MILITARY  GOVERNMEJNT  AND  MARTIAL  LAW. 

a  country  and  portions  or  provinces  of  the  same  who  seek  to  throw 
off  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  ia 
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  oth<;r 
hand,  proclaiming  military  government  in  their  territory,  or  levy- 
ing 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  with  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  con- 
tending parties. 

814.  Treating  the  rebellious  enemy  in  the  field  according  to  the 
law  and  usages  of  war  has  never  prevented  the  legitimate  gover.!- 
ment  from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for  high 
treason  and  from  treating  them  accordingly,  unless  they  are  in- 
cludeu  in  a  general   amnesty. 

815.  All  enemies  in  regular  war  are  divided  into  two  general 
classes — that  is  to  say,  into  combatants  and  non-combatants,  or  un- 
armed citizens   of  the   hostile   government. 

The  military  commander  of  the  legitimate  government,  in  a  war 
of  rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted 
portion  of  the  country  and  the  disloyal  citizen.  The  uisloyal  citizens 
may  turtlier  be  classified  into  those  citizens  known  to  sympathi.^e 
with  the  rebellion  without  positively  aiding  it;  and  those  who,  with- 
out taking  up  arms,  give  positive  aid  and  comfort  to  the  rebellious 
enemy   without   being   bodily    forced    thereto. 

816.  Common  justice  and  plain  expediency  require  that  the  mi'.i- 
tary  commander  protect  the  manifestly  loyal  citizens  in  revolted  ter- 
ritories 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  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,  de- 
clare his  fidelity  to  the  legitimate  government,  he  may  expel,  trans- 
fer,   imprison,    or    fine    the    revolted    citizens    who    refuse    to    pledge 


APPENDIX  VI.  653 

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 
rigAit  to   decide. 

817.  Armed  or  unarmed  resistance  by  citizens  of  the  United  Stat>^s 
against  the  lawful  movements  of  their  troops  is  levying  war  against 
the  United    States,   and    is   therefore   treason. 


I 


INDEX. 


Absence,    compulsory,    parties    not    af- 
fected by;   case   of  Doroteo  Cortes, 
232,    233. 
Of    statute,    customs    of    war    govern 
courts,  336. 
Abuse,  of   power,    martial   law,    430. 
Accidentia!  killing,  rule  of  responsibil- 
ity,  445,    446,   447. 
Actions,    transitory,    accruing    to    neu- 
trals,  167. 
Ex-delicto  or  ex-contractu,   316. 
Ex-delicto,    case   of  Mitchell  vs.   Har- 
mony,   318. 
Acts    of    Congress,    no    confiscation    by, 
during    foreign    wars,    180. 
Confiscation    by,    in    Civil    War,    and 
reason,    181,    182,    183. 
Administration,    reluctance    of,    martial 
law,   544,   545. 
Regard  of  military  for  civil,   550. 
Of  martial  law,  584  to  604. 
Administering,   efficient,   of  martial    law 

necessary,    584. 
Alarm,    military    authority    over    civil 

community,  no  cause  for,  688. 
Allegiance,    temporary,    int.,    5,    26,    27, 

28,   29,   30. 
Allies,  trade  restrictions,   274. 
American      Colonies,      feared      military 
rule.   452. 
Martial   law  as  war  measure,   456. 
Anglo-Saxon,   policies,    int.,    17. 
Appropriation,  of  private  property,  172. 
Confiscation,   173. 
Hague   Conference,    199. 
On   land   and   sea,    200. 
Destroyed    property,    217,    218. 
Destruction,  265. 
Arbitrary  Acts,  martial  law,  532. 

Community   protected   from,    subordi- 
nates' rule,   659. 
Arizona,    assumption    of    military    con- 
trol   in,    514. 
Martial  law  in,  575. 
Armed  force,  common   law  had  no,    441. 
Common  law,  442. 
Menace  to  peace,  443. 
Armed  resistance,  met  by   martial   law, 

505, 
Army,    foreign,     on    friendly    soil,     114, 
115. 
Of  invasion,  in   re  tribunals,   149,   150, 

151.  152,   153,  154. 
Subsisting,     right    to    take    supplies, 
194. 


Army,    contributions,    211. 

In  the   field,   guerillas,   302. 

Officers  responsible   to  President,   308. 

General  of,  authority,  584. 

U.    S.    regular,    deference   to    civil    au- 
thorities,   551. 
Arrest,  responsibility   for,   outside   mar- 
tial  law   district,   509,   510. 

Right  or,  martial  law,   28. 

Of    those    attempting    defeat    martial 
law,   589. 
Articles  of  AVar,  provisions  of,   144. 

Theatre  of  operations,  145. 

Scope   of,    146. 

To  whom  and  wlien  applicable,  147. 

Who    not  triable,    148. 

Certain    of,    156. 

Legal   construction   of,    157. 

63rd,   trial,   158. 

When    civilians   triable,   160. 

In   War   of   1812,    639. 

Construed   in   Civil   War,    640. 

Article  IV.,   Sec.  4,   Constitution,   555. 

Art  works,  seizure  allowable,  555. 

Assistance,   called    for   by   State,    Presi- 
dent's   discretion,    561. 
Assumption,  of  power,  armed  force,  443. 

Of  military  control  in  Arizona,  514. 
Attitude,    of    courts,    enforcing    martial 

law,  602,  603,  604. 
Attorney-Grcneral,   definition    of   martial 

law,  421,  422,  423. 
Authority,  in  military  occupation,   50. 

Of   military   commanders,    127,   128. 

Of   trade   in   military   occupation,    272, 
273. 

Of  President  to  license  trade,   281. 

Of    commander,    under    military    gov- 
ernment,  limit,    305. 

Of  military  commission,   339. 

Of  martial   law   varies   under   govern- 
ments,  386. 

Pears    martial    law    a    usurpation    of, 
450. 

Of    the     military    is     supreme     under 
martial  law,  460. 

Of    President    may    be     entrusted    to 
whom,  502. 

Of    commander    extends    where    and 
when,  503. 

Of  President  impugned  by  Congress, 
547. 

Of  general   of  army  augmented,  548. 

Martial  law,  of  State  and  Territories 

,    distinct   from   Federal,    554. 

Of     State,     President     to     recognize, 
when,   559. 


I 


655 


656 


MILITARY  GOVERNMENT  AND  MARTIAL   LAW. 


Authority,  limit  of,  Federal  jurisdiction 

in  State,  565. 
Of    President    in    martial    law    when 

called  in  State,  566. 
Exercise     of,     in     the     field,     English 

rule,   583. 
Of  martial  law,  Webster's  view,   592. 
Must     be     assumed     by     commander, 

when,    593. 
Same   in  what  cases,   594,   595. 
To     convene    martial    law     tribunal.s, 

607. 
Of    summarv    martial    law    tribunals, 

60S. 
Commanding-    general    power    appoint 

martial    law    courts,    610. 
Military,   over  civil   community   disa- 
greeable to  officers,  622. 
Reasonable    use     of,     military    to    be 

sustained,   690. 

B 

Baltimore.  1861,   486,    487. 

1863,  525. 
Banditti,    10. 

Battlefields,      private      property      taken 

on,   214. 
Bedreechund,    Elphlnstone   vs.,    151. 
Belligerents,    rights,    12,    13,    19,    22. 
Rebels  treated  as,   53,   54. 
Rule  of  war  making  enemies,   60. 
Occupation   of  territory,   81,   82,   83. 
Enemies  of  the  subjects  of  the  oth»r, 

92    93. 
Treatment  of.   93. 
Treated  as  enemies,  98. 
Treated  as  rebels,  where.   123,   124. 
Rule   of  confiscation.   178. 
Rebel     territory,     treated     as,     policy 

local,   307. 
Right,   martial   law,   377. 
Martial   law   as,   right,   based  on   laws 

of  war.   380. 
Measure.     Lincoln's     course     in     Ken- 
tucky. 492,   493,   494. 
Measure,   martial   law   a,   during   war. 

519. 
Martial     law    justified     in    Baltimore. 
1863.  on  ground  of.  525. 
Blockade,  and  military  occupation,    42. 
Booty,   196. 
Boston,  martial  law  in.  Gen.  Gage,  1775, 

453,   454,   455. 
Bills  of  indemnity,  677  to  690. 

Customary    in    English   jurisprudence. 

677. 
What    acts    indemnified,    678. 
Colonial,   679. 

When  only  statute  of  repose,  680. 
Policy   involved   in.    682. 
After   Civil    War,  683,  684.  685,  686.  687. 
Bills   in    nature    of   indemnity,    by    Con- 
gress.   533,   534. 
Bill    of    Rights,    not    always    effective, 

nor   cloak   for   license.    591. 
British,    government   principles    of   con- 
quest, 56. 


British,  occupat'n  Castine  Maine,   51,  52. 

Experience  South  Africa,  war  courts, 
343. 

Government   martial   law,   war   condi- 
tions,   2S7. 

Colonial  experience,  martial  law,  391. 
British  Martial  La-w  Courts,  what  cases 
tried  in,  and  in  U.  S..   393,   394. 

Character  of.    395. 
British  martial  law,  Mutiny  Act,   396. 

Royal   prerogative,   397. 

Distinction  military  la-w,   398. 

Theoretically    not    part    of    jurispru- 
dence,  399,   400. 

In  time  of  peace,   401. 

When  may  obtain,   402,   403. 

English    jurisprudence,    404. 

Fears    of,    idle,    405. 

Principle     for     enforcement     of,     408, 
409,    410,    411,    412,    413.  | 

Civil     administration     fails,     obtains,  ' 
406,   407. 

Who   judges   necessity,    414. 

Civil    responsibility'    of    military    offi- 
cers of,  415,  416. 

Courts,    advised    use    rules    of    court-  ' 
martial,   418. 

Method  of  enforcing,  varies  419. 

And  in  United  States,  420. 

Rules  of  evidence,   627. 

C 
California.  Upper,  war  tariffs.   58. 
Camp-followers     and     soldiers,     subject  i 

to  laws  of  war,  143. 
Camp-followers    amenable    to    Articles  i 

of  War,   147. 
Camp,    laws    of    the.    extends    to    whole 

community,   581. 
Discipline,      originally     martial     law, 

363.    364. 
Captain  ^Vilkes,  633. 
Castine    Maine,    British    occupation    of, 

51,  52. 
Caution,  of  commanders  in  re  civilians, 

641,   642,   643. 
Changes,  in  judicial  opinion  in  U.  S.  re 

martial  law  power,  596,  597,  598. 
Characteristics,      of      military      govern- 
ment, 18. 
Character,    of    government    decided    by 

dominant   power.    20.    21. 
Charles   I.,   martial    law  practice   under, 

■     367. 
Chief  -  Justice    Taney,   Merryman    case, 

^90. 
Citizens   and   soldiers,    laws    of   occupa- 
tion applicable   to,   142. 
Citizens    and    civilians,    of     conquering 

state   subject  to  statutory  law  and 

laws   of  war,   159. 
Citizens,    duty    to    aid   the    law,    444. 
City,   military  government,   133. 

Sacking    of.    215. 
Civil      administration,      unobstructea, 

martial  law  illegal,  428. 
Fails,   martial  law  necessity,   459. 


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INDEX. 


657 


Civil     administration,     military     regard 

for,   550. 
Civil   authorities,   fail,    martial    law    ob- 
tains,  373. 
f      Fail,    martial    law    obtains,    England, 
I  406,  407. 

Respect    of    military    officers    for,    433. 
Subordinate    to    military   when,    508. 
And     institutions     treated     with     re- 
spect,  522. 
Deference  paid  by  military,   551. 
Supporting-   military,    552,    553. 
Subordinate  to   military,  when,   569. 
Weakness  of,  578. 

The    only    ones    to    institute    martial 
law   outside   theatre   of   war,   623. 
Civil   affairs,    increased    demand    in,    for 

martial  law,   576. 
Civil    couiiuunity,    military    men    exer- 
cising military  law  over,  622. 
Under  military,  not  cause  alarm,   6S8. 
Civil    conditions,    acts    under,    may    be 

offences  under  martial  law,  586. 
Civil  courts,  not  same  precision  in  mil- 
itary courts  as   in,    619. 
"When  civilians  turned  over  to,  629. 
May  inquire   into   conduct  officials   or 

martial   law,   630. 
Should  remember  martial  courts,  644. 
Civil  disorgranization,  may  justify  mar- 
tial   law,    472. 


Civil  jurisdiction,  regarded  b' 
560. 


statutes, 


Civil    judicature,    must    ultimately    de- 
cide,  what,   655. 
Civil  government,  int.,  13,  14,  16. 
Policy   in    establishing,    76,    77. 
When   succeeds   military   government. 
346,  347.   348,  349. 
Civil   laTv,   martial    law    supplement    to, 
365. 

Civil      officers,      responsibility,      British 
rule,   416. 
Military  officers,  British,   417. 
Civil  officials,  inertness  of,   may  justify 

martial  law,    473,   474,   -i  1 5. 
Civil     responsibility,     characteristic     of 
martial  law,  381. 
Military    officers,    in    British    martial 
law.  415,  416. 
Civil    war,    military    government     dur- 
ing,  40. 
Reprisal  and  retaliation,   55. 
Confiscation,   181,   182.   183. 
Government  determines  course,   270. 
Responsibility  of  commanders.  329. 
After,  what  fight  given  people,  352. 
Dates   of  termination   of,   353. 
Reconstruction,     martial     law     under, 

511. 
President  revokes  martial  law  meas- 
ures at  end  of.  537. 
IE    District    of    Columbia,    military    con- 
|F         trol,   538,  539. 

Force  to  attain   ends   of  martial  law 

in.    52S. 
Articles   of  War  construed  m,   640. 
—42— 


Civil  War,  bills  of  indemnity  after,  683, 
684,   085,   686,   687. 

Civilians,  when  triable  under  63rd  Ar- 
ticle,  160. 

Civilians  and   soldiers,   martial   law   ap- 
plies  to  both,   366. 
Civilians,    when    turned    over    to    civil 
courts,  629. 
Caution   of   commanders    toward,    641, 
642,  642. 
Cloak  for  license,  bill   of  rights.   591. 
Coercive      measures,      taking      property 

for,  exceptions,  201,   202,  203. 
Coleman   vs.   Tennessee,   152. 
Colonial,  bills  of   indemnity,   679. 
Colonies,  British,   martial   law,    391,   392. 
Colorado,    privilege    of     habeas     corpus 

in,   513. 
Combatants,      authorization      necessary, 

1U5. 
Commander,   political   views   of,    modify 
powers,  71. 
Responsibility,       extreme       measures, 

97    98. 
Military,   authority,   127,   128,   185. 
Untrammeled,   when,    181. 
Preserve   records  and  matters   histor- 
ical,   '^^^. 
When       may       alienate       government,^ 
property,  217.  / 

Review    of    power    of,    280. 
Responsibility,    military    government, 

305    to   332. 
Authority   of.   under  military  govern- 
ment,   limit.    305. 
Responsibility   of,   310. 
Military,     entitled     to    every    intend- 
ment,  322. 
Responsibility  of,  same  as  judge,  326, 

327,    328,    329.    330,    331. 
Responsibility     of.     appointing     mili- 
tary commission,   337. 
Will  of,  superseding  all  law,  424. 
Mav    extend    authority,    when,    where, 

503. 
Must     take     initiative,     martial     law, 

593. 
Power    appoint    military    commission, 

610. 
Responsibility    of.    martial    law.    630, 

656. 
Caution     of,     in     proceeding     again.st 
civilians,    641,    642.    643. 

Commander  -  in  -  chief,  power  of  Presi- 
dent, 14.   15. 
Having  all  power,   457.   458. 
Commercial    dealers,    warning    of    war, 

287,   289. 
Commission,     military,     criminal     juris- 
diction.   134. 
Responsibility  of  commander  appoint- 
ing,   337. 
Under  authority  of  statute  or  custom 
'    of  war,   339. 

Based  on   statutory  law  and   laws  of 
war,    609. 


658 


MILITARY  GOVERNMENT  AND  MARTIAL  LAW 


Common    law,    trial     of    crimes     under, 

161,    162. 
Rule    of    responsibility    of    officials    in 

martial   law,    431. 
Supplemented    by    martial     law,     441 

to    458. 
Defective  In  not  having'  armed   force, 

441. 
Recognizes     customs     of    war,     ivhen, 

448. 
Aided  by  martial   law,   449. 
Inadequacy  of,  gave  credit  to  martiai 

law,  451. 
Not  suited  to  case  of  rebellion,  483. 
Comuiunity,    punishment,    204. 
Hague  Conference.  205. 
Have  right  of  self-defence,   480. 
Laws   of   camp    extend   to    whole,    581. 
Protected  by  rule   in   re  subordinates. 

659. 
Compulsory    payments,     effect     on     pri- 
vate  debt  paid   to   conqueror   if  due 

displaced  state.    230. 
Conduct   of   officials,    martial    law.    may 

be  inquired  into  by  courts.   630. 

Confi.scation,  a  formal  legal  process  as 
distinguished  from  summary  ap- 
propriation,  173. 

Views   as   to   right  of,   174. 

Right    to.    judicially    determined,    176. 

Basis  of  right  to.  177. 

Congress  source  of  power  of,  179. 

None    in    foreign    war,    by    Congress, 
180. 

Acts    of    Congress    in   Civil   War,    and 
reason,   181,   182.   183. 

Only  by  judicial  decision.  184. 

Laws,  not  conflict  with  laws  of  war 
commanders     may     not     confiscate, 
185. 

Decisions  of  Supreme  Court,  186. 

Crimean   War.    222. 

Not  of  debts   due   enemy   subject.   223, 
224. 

Treaty    of    Great    Britian    and    United 
States.  224. 

Incorporeal  rights,   231. 

Immovable  property  not   for,   240. 

Confederate  acts,   244. 
Congress,     right     to     institute     martial 
law.  int..  23. 

Implied   powers,    int..    24. 

War  without   declaration.    6. 

Political  governments,   88. 
Source  of  DOwer  to  confi.'^cate,  179. 

No   confiscation  by.   when,   180. 

Right    to    discuss    measures    of    Pres- 
ident, 529. 

Passed   bill    in    nature    of    Indemnitv 
Act,   533,   534. 

Power    to    establish    Federal    martial 
law,   540. 

Power    of    under    L".    S.    Government. 
541. 

Martial    law    powers    of,    emphasized, 
544,   545. 

Exercised    power    to    suspend    habeas 
corpus,   58i. 


Congressional    martial    la-tv,    540    to    553. 
Congressional      legislation,      impugning 

power  of  President,   547. 
Conqueror,   will   of,   law   in  military   oc- 
cupation,  61. 
Suspension  municipal  laws,  65,  66. 
Prescribes   the   laws.    68,   69. 
Courts  installed  by,  119. 
Merciful,   117. 

Regulates    local   justiciary,    123.    124. 
Payments   to,   and   effect.   230. 
Title  with   possession,   238. 
Title   by   seizure,    247. 
Acquire   title  how.   249. 
Paramount    force,    250,    251. 
Paramount   force    state   property,    262. 
As    to     implied     obligations    and     the 

state,    269,   270. 
Responsibility    of,     when     and     what, 

313. 
Expelled,    hold    territory,    or    surren- 
der,  when,    345. 
Conquest,   its   criterion,    37. 

Limits   military   government,    38. 
Permanency  by.  treaty,  39. 
Principles  of.  British  Government,  56. 
Permanent,   not  contemplated,   78. 
Consideration,   due   officers,   637,   653. 
Constitution,     recognition     of    laws     of 
nations.    9. 
Article   IV..   Section   4,   555. 
Constitutional   policies,   int.,    17. 
Contracts,   precipitation    of    war    not    to 

avoid.    293,    294. 
Confederacy,   confiscation    acts,    244. 
Martial  law  under  the,  370. 
Experiences    in    martiai   law   same   as 

in   U.   S..    439,    440. 
Used  martial  law,  case  necessity,  590. 
Contributions,  for  destitute.   207. 

Of   property  instead   of   enslavement, 

209. 
Equitable,   support  of  army,   211. 
German   theory,    213. 

Corporeal    rights,    same    rule    as    incor- 
poreal,   229. 
Courts,  election  of  conqueror,   119. 

Criminal,    establishment,    129,   130. 

Of  war,    of   civil  jurisdiction,    131. 

Of  war,  New  Orleans.  132. 

Of  war,  by  plenary  power,   141. 

Provisional,      plenar-     power,     court 
record,   140. 

Of  claims,    organization,   321. 

Of    war.    distin°-uished    from    courts- 
martial,    333. 

Of  war,   how   invoked  in   early  U.   H. 
service.  334. 

Of   war.    how    invoked   by   Gen.    Scott 
in  Mexico.   335. 

Of    war.    invoked    under    customs    or 
war.  336. 

Of  war,  responsibility  of  members  or, 
338. 

Of    war,    relief    of    responsibility    for 
members   of,    340. 


INUKX. 


659 


Courts,    of    war,    jurisdiction    of,    as    to 

persons,    341. 
Of    war,    cognizance    of    what    cases, 

342,    343. 
Those  enforcing  martial  law  answer- 
able before  tlie,   374. 
Of  martial   law,   to   try  certain  cases, 

in  England,   in  U.   S.,   393.   394. 
Thougli  able  to  sit,  may  be  succeeded 

by   martial   law.   wlien,    463.    464. 
Have  riglit  of  self-defence,   480. 
Of   justice    in    Baltimore   in    1861,    4S7. 
How  affected  by  disloyalty,   495. 
Construe  law,  how,   533,  534,  535,   536. 
Attitude    of,    enforcing    martial    law, 

602,    603.    604. 
Court-martial,    distinguished    from    war 

court,    333. 
Rules      advisable      for     martial      law 

courts,    British,    418. 
Not    interfered    with    by   martial    law 

courts.    611. 
Responsibility     attaches     to     martial 

law   courts.    613. 
Crimean   AVar,    no   confiscation.    222. 

Rule    of   trade    in,    276. 
Crimes    and    misdeeds,    punislied    under 

Articles  of  War,  147. 
Criminal  olTences,  trial  of  neutrals,  186. 
Customs   of  war,   controls    Invoking   of 

war    court.    336. 
Or    statute,    gives    authority    to    mili- 
tary  commission,   339. 
Common    law   recognizes,    448. 
Immunity  following  from,  636. 
To  govern  officer,  648. 
Cuba,    occupation    of,    63,    64. 

Rule   of  military  occupation,    73,   74. 
Character  of  military  government,  SO. 

D 

Dagupau  Railroad,  Luzon  P.  I.,  ruling 
in  re  military  government  control, 
193. 

Dates,  of  termination  of  Civil  War. 
353. 

Death,   great   responsibilitv.    447. 

Dealers,  commercial,  should  be  -warntil 
of  war,  287,   288. 

Debts,    of    enemy    not    confiscated,    223, 
224. 
Private,    effect    on,    payment    to    con- 
queror,   230. 
Due  old  government  and  paid  to  new 
government,   252. 

Deceptive  nature,  of  illustrations  of 
English   history,    506. 

Declaration,  martial  law  not  necessary 
to   effect    it,    580. 

De  facto  sovernment,  acts  of.  depentl 
on  outcome  of  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. 
Destruction,  or   use  of  property  creates 
distinction    in    payment,    208. 
Of    private    pro^ertv.    as    well    as    ap- 
propriation,  217,   218. 
Of    private    property    as    punishment, 

219,    220. 
What   property   may  be,    221. 
Wanton,   when   allowable,    259,   260. 
Riglit    to,    same    as    to    appropriation, 

265. 
Of  warlike  stores,  266. 
Private   property,    267,    268. 
Dicev    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,  onicials  to  keep  within, 
631. 
Disinclination,     of     officials,     cause     for 

martial   law,    465. 
Djslovalty,  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    power,    decides    character    of 
government,    20,   21. 
May   authorize    trade   when.    272,    273. 
Regulates    introduction    merchandise 

and   persons,    291. 
Government    concedes     what     riehts, 
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,    24o. 
Dutv,   of  military   government,    int.,,  12, 
"42. 
Of    citizens    to    suppress    lawlessness, 

444. 
Of  officers,   protection.    533,    534. 
And  patriotism,  course  for  officers  to 

pursue,    654. 
Of  military.   689. 


I 


66o 


MIUTARY  GOV^RNM^NT  AND  MARTIAL  LAW. 


E 

E}fficient  system,  in  administering:  mar- 
tial   law,    584. 

IDlphinstone    vs.    Bedreechund,    151. 

E^mergfency,    in    case    of,    common    law 
recognizes  customs  of  war,  448. 
In  case  of,   offlcers   to   have   consider- 
ation, 653. 

E^nemy,  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, 
171. 

Debts   not   confiscated,   223,    224. 

Property  of,  rule  for  confiscation. 
225,   226. 

Property  of,  under  military  occupa- 
tion, 227. 

Property  of,  at  purchaser's  risk,  237, 
239. 

Property  of.  right  to  destroy,  265. 

Exception  to  rule  of  no  trade  with 
292. 

Proximity  of,  cause  for  martial  law, 
477. 

Knforceinent,    of    military    governmeT't 
75    to    91. 
Martial     law,     court's     attitude,     602, 
603,    604. 

Bnglish    jurisprudence,    origin    martial 
law,    361,   362.   363,   364. 
Bills  of  indemnity,  677. 

Elnglish  history,  deceptive  nature  of, 
506. 

E^ng-Iish  rule,  responsibility  in  the 
field.    583. 

Enslavement,  property  taken  instead 
of,    209. 

Elvasion,  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. 

Evidences,  of  lawless  spirit  in  the  land, 
577. 

Ex  contractu,  actions,   316. 

Ex  delicto,  actions,   316. 

Actions,  case  of  Mitchell  vs.  Harmo- 
ny,   218. 

Executive,  imolied  powers   of,    re   mar- 
tial law,    369. 
State,    martial    law,    occasion    neces- 
sity,   567.    568. 

Executive  offlcers,  to  be  sustained,   635 
Consideration    for,    emergency.    653. 

Exempting^  property  from  seizure  and 
levies  en  masse,   212. 

Exemplary  dama^sres,  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. 

Fe«leral     matters,    President     independ- 
ent,   501. 

Federal    martial    lavr,    vjongress    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    Court,    proper    forum    for    trial 
l^'ederal   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  wars,   no   confiscation   by  Con- 
gress,   ISO. 

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  soil,  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,   523. 

Germany,    practices    in    France,    100. 

Germans,  at  Strasburg.  301. 

German  theory,  of  contributions,   213. 


I 


INDIIX. 


66i 


Cioveriunent,   war   powers,    limit,    10. 
Defects,     acts    of,     depend    on     what. 

242,    243,   244,   245.  | 

Debts    due    old    government    paid     lo 

new.   252. 
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.  588. 
Hague  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   -war,    relieved    by    legisla- 
tion.  319,   320. 
Hardsbip    subordinate     rule,      modified, 

660,   661,    662. 
Hanuless    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. 

Illegal.  orJers  of  superior  executed  bv 
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,    ^^6. 

Individuals,  have   right  of  self-defence, 

480. 

Indemnity  bills,  677  to  690;  see  Bills  of 
indemnity. 

Indemnity  Act,  passed  by  Congress, 
553,    554. 

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. 
Institution.^,    treated    with    respect,    522. 
Instruction.^    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,   151, 
152.   153,    154. 
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.il 

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  sy.stem,  in  New  Mexico,  120. 
Of   Gen.    Scott    in   Mexico,    121,    122. 

Judicial  tribunal.  Of  deposed  state,  ef- 
ficacy of  judg-ment  after  military 
occupation,   168. 

Judiciary,  local,  in  territory  of  rebels 
as  belligerents  regulated  by  con- 
queror, 123,  124. 

Judiciary   war,   Menmhis,    Tenn.,    126. 
Judges,  officials  acting  as,  have  discre- 
tionary powers,   323. 

Re.sponsibility    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,   60  i 
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   limit, 

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,    France,    proclamations. 


Land    and    sea,    property    captured    on, 

200. 
La-»v,  of  nations,   9. 

Will  of  conqueror  is,  when,   61. 

As  to  persons  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. 


625,     626,     627, 
neutrals,     when, 


LaTvs    o£    evidence,    624 

628. 

La-tvs,     applicable     to 
163,  164,  165. 
Political,  cease  on  occupation,  67. 
Of    occupation,    to    wliom    applicable, 

142. 

Laves    of    war,    limit    government    war 
powers.   10. 

In   occupied  territorv,   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. 
LaTrlessness,    duty    of    citizen    to    sup- 
press.   444. 

Frowned     upon     bv     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    oflJicers    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. 


Bill  of  rights  not  a  cloak  for,  591. 


281. 
L. 

I 


INDEX. 


G63 


I  limit,  of  authority  Federal  jurisdiction 
in  State,  565. 
Of   authority,    officials   to   act   within, 
631. 

Jurisdiction,     in     re     time     of     offence, 
615. 

L,i)iiitatiouf^     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     authorities     fall,     President     to 
call  in  the  military,  499,  500. 

Loyalty,   doubtful,   of   people   Louisiana 
necessitated  martial  law,  482. 

Louisiana    case,    1814-1815,    attitude    of 
judges,   600,   601,   602. 


Magazines,  right  to  destroy,   266. 
Manila,    capture    of,    sovereignty   Spain, 

48. 

Doroteo   Cortes,    compulsory   absence, 
233. 

Smitli,    Bell    &    Co.,    reverting    rights, 
254. 
Martial  law,  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,    363,    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  U.  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  pre^gative,  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     uf 
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, 
454,  455. 


664 


MILITARY  G0VERNME:NT  AND  MARTIAL  LAW. 


martial  law,  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,  46S. 
469,   470. 

Principles  for  judges  of,   471. 

Justified  by  terror,  472. 

Justified  by  secret  machinations,  47  >, 
474,   475. 

At  New  Orleansigafter  peace,   476. 

Proximity  of  enlfl^,  cause  for,  577. 

Invasion  the  necessi:ty  for,  478,   479. 

Justified  under  right  of  self-defence, 
481. 

In  Louisiana,  482. 

Bv  Federal  authority,   497  to  539. 

Invoked  by  Federal  or  State  author- 
itv.    497. 

U.  S.  Supreme  Court  on  State  exer- 
cT.sing.  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  la-w,  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,   5S9. 

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,   605. 

Tribunals,  legality  of,  questioned. 
606. 

Tribunals,  power  to  accomplish  pur- 
pose of,  607. 

Courts  not  to  interfere  with  courts- 
martial.    611. 

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  military  in  the.a- 
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  indemnitv,   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,    ofllcitils 

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. 


665 


Measure    of     war,     martial    law     a,     in 

American   colonies,   456. 
Measures,      martial      law,      evasion      of 

draft,    527. 
Measures,  of  President  subject  to  Con- 
gressional   discussion,    529. 
Measures    of    relief,    military    supported 
by   loyal  civil   autliorities,    552,    553. 
MeClellan,    Gen.,    orders    in    Peninsular 

campaign,    125. 
McConnell   vs.   Hampton,    642,    643. 

Not  a  precedent  to-day,   645. 
Mercy,   of  conqueror.   117. 

Of  American  armies,   118. 
Merchandise,     entrance     or,     into    terri- 
tory  of  military   occupation,    291. 
Memphis,  Tenn.,   seizure   of  rents,    47. 
War  judiciary,    126. 

Instance   of  authority  of  commander, 
128. 
Merrjinan   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  quell  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    wlioni, 

troops  shall  act,  562,  563,   564. 
Placed  about  Slate  authorities,  when, 

569. 
Increase   in   demand   for,   576, 
Resorted  to  on  failure  of  posse  com- 

itatus,    579. 
Upheld  bv  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,    680, 
To  be  sustained,  when,  690. 
Military   administration,   of   reconstruc- 
tion, martial  law,  543. 
Military   authority,   supreme  when,    -toO. 

Over  civil  community,  622. 
Military  commission,   criminal   jurisdic- 
tion, 134. 
Based   on   statutory'  law  and   laws   of 

war,  609. 
Territorial  limit,  614. 
Procedure,  615. 


Military  control,  assumption  of,  in  Ari- 
zona, 514. 
District  of  Columbia,  Civil  War,   53i», 
539. 

Militsirv  domination,  fears  of,  England, 
405. 

Military  despotism,  reconstruction  acts, 
549. 

Militarj'     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   g-overniuent,    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,   257. 

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.  .„     ,,     .r 

And  tactics  and  by  force,  43,  44,  45. 
Enemies'  territory,  49   to  56. 
Laws  of,  to  whom  applicable    14 J. 
Laws  applicable  to  neutrals,  163,  164. 

165-  .  ,.        f 

Efficacy    of    judgments,    of    courts    ot 

former  government.   168. 
Measures  which  survive,   195. 
Enemy's  property   under,    227. 
Effect  on  property,   234. 
What   not   confiscable  under.    241. 
Property  purchased  under,  245. 
'State    rights    revert    after,    253,    2d4. 

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  authorities,  433. 

Protected  by  Indemnity  Act.  53d,  bd4. 
Miliiary  power,  abuse  of.   432. 
-    When    to    be    invoked    by    President, 
499,   500. 


666 


MII.ITARY  GOVERNMENT  AND  MARTIAL  LAW. 


Military  respoiiHibility,  311.  312;  see  Re- 
sponsibility. 
To  neutrals,  to  state  subjects,  317. 
Rule    ameliorated    in    modern    times, 
664. 
Military    rule,    disfavored    by    colonies, 
452. 
Disloyalty  a  cause  for,  488,  489. 
Military    system,     demands     obedience, 

657. 
Military  tribunals,  summary  authority, 
608;   see  Tribunals. 
Responsibility  of  member  of,  673,  ^74. 
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    obliera- 

tory,   95,   96. 
Municipal  laws,  62,   63,   64,   65,   66. 
Mutiny  Act,  British  martial  law,   396. 

N 

5fapoIeon  in  Spain,   45. 
.Vapoleon,  wars  of,  propert-"    256. 
JVations,  have  right  of  self-defence,  4S0 
Tiavy  officers,  responsible   to  Presideni, 

Necessity,  rule  of,  in  Mitchell  vs.  Har- 
mony,   332. 

Determining-    when    military    govein- 
ment  ceases,    344. 

Of  martial  law,  375. 

Of  martial  law,  who  judges,   378. 

Of  government   and   rights    of  people 
under  martial  law,   383,   384. 

Makes    martial    law    lart    of    English 
jurisprudence,   400. 

Of    British    martial    law    in    times    nf 
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   1815.   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.   485,  486,  487. 

Martial     law     continued     as,     during 
war,  519. 

Martial  law,  c*-*-   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. 
?feagle.   Supreme   Court   in    re,    651. 


Ne-w  Mexico,  President  as  commander 

in-chief,    15,    16. 
Judicial  system,  120. 
Suspension   of  habeas   corpus   in,   512 
Martial  law  in,   575. 
IVevF    Orleans,    occupation    of    territory. 
82. 
War  courts,  132. 
Martial  law  in  1814-1815,   434. 
Martial  law,  476. 
New  York  city,  mobs   in   1863,   461. 
Neutrals,     laws     applicable     to,     under 
military    occupation,    163,    164,    165. 
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. 
Oblig^ations    and    rights    o£    war,    to    be 

followed  by  military,   656. 
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 

85,    86,    87,    88. 
State  sustains  military,   315. 
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,   may  be  causci 

for  martial  law,   465. 
Protected  by  indemnity  act,  533,   534. 
Responsibility,    of    martial    law,    630, 

Justification   of,    632,   633. 
Sustained  by  Supreme  Court,  634,  635 
Offences,   trial   of  neutrals,    166. 

After    active    disorder,    martial     law 

court,    393,    394. 
LTnder  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  resistance  to  laws,  authority  of 
martial  law,  594.  595. 

Operations,  regular,  inefficiency  guer- 
illa  warfare,    299-302. 

Opinion,  in  Louisiana  case,  1814  and 
1815,  600,  601.  602. 


Parliamentary     martial     laTv,      Ireland, 

382. 
Parties,  in  public  war,   4. 

Compulsorily   absent  not   bound,    232, 

233. 

Parties,    private,    immovable     property 

not  confiscable,  240. 
Patriots,  fear  of  martial  law  by  earlv, 

432. 

Patriotism,    proper    course     for    officer, 
654. 

Payment,  to   new  government   of   debts 

due   old  government,   25  2. 
Peace,     fully     established     before     war 

ceases,  354. 

Peace,   times    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   campais-n,   Gen.   McClellan's 

orders,  125. 
People,  war  brought  home  to   the,    286. 
People     subjugated,      responsibility      of 

commander  toward,   313. 
People,    rights    of,    when    civil    govern- 
ment   succeeds    military,    350,    351, 
352. 
Persecutions,    officers    protected     from, 

533,    534. 
Persons    and    property,    laws    affecting 

116. 
Per.sons,   in   territory   of   military  occu- 
pation,  291. 
Jurisdiction  w^ar  courts  as  to,  341. 
Petition    of    right,    when     martial     law 

obtains   in   England,    401. 
Philippines,      illustrating     government. 
21. 
Character  military  government,   90. 
Guerilla  warfare,  103. 
Insurrection,  revenues  claimed,  264. 
Insurrection  policy  of  U.  S.,   304. 
Pillage,  unlawful,   210. 
Plenary     po-*vers,     provisional      courts, 
courts   of  record,   140. 
Appoint    war    courts,    judicially    set- 
tled, 141. 
Political  views,  modify  powers  of  com- 
mander, 71. 
Political   igovemnients,  experimental,  87. 

88. 

Police      povrer,      depends      on      circum- 
stances,  359. 
Policy,    foundation     of,     in    occupation. 
80,   81. 
Military,  determined  by  whom,  278. 


Policy,  of  trade,  Treasury  Department, 

282. 

Of   U.    S.    in    re    insurrection    in    Phil- 
ippines, 304. 

Local,    in    re    territory  of    rebels,    307. 

Of  U.  S.,   as  to  ri^^hts  of  people  after 
military  government,  351,  352. 

Generous,    misunderstood,   523. 

Involved  in  bills  of  indemnity,   682. 
Possession,   rule    for    seizure    in,    incor- 
poreal ri.ghts,   236. 

Title  of  conqueror  only  on,  238. 
Posse  comitatus,  weakness  of,   578. 

Failure  of,   579. 
Post   liniiniiuu,   what   vests    title,    2  28. 
Powers,  express   and  implied,   7. 

\Var,   8. 

What,    determines   policy,    278. 
Powers,    implied,     of     executive     in     re 

martial  law,  369. 
Powers,  military,  fears  of,   432. 
PoT*'ers     of     government,     to     exercise 

martial  law,    438. 
Powers,    all,    placed    in    commander-in- 
chief,   457,    458. 
Prejudice,     early,     disfavored     military 

rule,   452. 
Preservation,  of  rights  of  all,  question, 

655. 
President,    meeting    war    emergency,    5. 

Powers  as  commander-in-chief,  14,  15. 

Political    governments,    88. 

War  power  of,  138. 

Autnority  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, 
516. 

Subject  to  Congress,  when,   529. 

Revokes    martial    law    measures,    end 
Civil   War.    537. 

Authority  of,  impugned  '—    Congress, 
547. 

Decides     what    Stat©    authorities     to 
recognize,   559. 

Exercise    discretion   when   State   calls 
for  assistance,   561. 

Determines  under  whom  the  military 
to  act,   562,   563,   564. 

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,  521. 

For    enforcing    British    martial    law, 
408,  409,  410,  411,  412,  413. 


668 


MIIvlTARY  GOVERNMENT  AND  MARTIAE  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   rigfhts,   in   vanquished    states, 

175. 
Property,  rule  of  enemies',   169. 

Right   to   seize   enemies',    170. 

Who  has  right  to  seize  enemies',   171. 

When  belons-s  to  State,  and  how, 
197,  198. 

On  land  and  sea,  200. 

Taking  of,  as  coercive  measure  and 
exceptions,    201,    -'02,    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   liminium,"    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,   240. 

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,  256,  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. 
Proniptnes»»,     military     government     to 

exercise,   324. 
Pro.seeution.s,  at  home,   for  martial  law 

acts  in  colonies,   392. 
Protection,   and    allegiance    of    inhabit- 
ants   26     27     29     30 
To*^  officers  by'lnd'emnity  Act,  533,  53-1. 
Of  State  by  Federal  government,  558. 
Of  officers  by  statute,    650. 
Provisional      courts,      plenary      powers, 

courts  of  record,  140. 
Provost   courts,   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. 
lender    military    occupation,    245. 

R 

Rebel,  right  to,  one   of  expediencv.   29(), 

297,    298. 
Rebel.s,   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. 
Reconstriction,   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    suspen-1 
habeas    corpus    and    to    order    mar- 
tial  law,   526. 


inde;x. 


669 


Relief,    for    military,     support     of    civil 

authorities,  552,  553. 
Reluctance,   cause    of   drastic    measures 

martial   law,    544,   545. 
Remedial     legislation,     to     meet     hard- 
ships of  war.  319,  320. 
Rents,    seizure    of,    47. 
Repressive    measures,    in    insurrections, 

304. 
Reiiri.sal    and    retaliations,    attempts    to 

avoid,   55. 
Republican    government,    what    consti- 
tutes,    matter     of    Federal    cogniz- 
ance, 556,  557. 
Responsibilitj-,    of    commanders,    305    to 
332. 

Of  Army  and  Navy  offlcers,   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    for,    of  subordinates,    325. 

Rule  for,  of  commanders,   same  as  of 
judg-es,    326,    327,    328,    329,    330,    331. 

Of     commander    appointing    military 
commission,  3ii. 

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,  England    415,   416. 

For  abuse  of  power,  martial  law,  430. 

Of  official,   common  law  rule,  martial 
law,  431. 

For    accidental    kiliing,    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 
656. 

Of  officials.   630.   631    632. 

Rule  of.  in  ancient  times.  638. 

Of   subordinates.    657   to   676. 

Military,    in    modern   times,    664. 
Re.s|»«)nsibilitj-  rule,  of  subordinate  and 
superior,   666. 

Of   subordinate,   667   and   668. 

Of   subordinate   special.    669.    670.    67T. 

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    oustpd 
government,    263,    264. 
Resistance    to    lavrs,    authority    martial 

law.   594.  595. 
Riglit.    to     establish    military    govern- 
ment, 19,  22. 


Right,  of  people  when  civil  govern- 
ment succeeds  militarv  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,    52S. 

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. 


.*«:!ckin?;:,    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   machination.^,    may  justifv   mar- 
tial   law,    473.    474,    475. 
Authority  martial  law,  594,   595. 
SeJznre,   4th   rule   private   nroperty    216 
"What  may  be  subject  of,  221. 
When    property    may    be    subject    of. 

235. 
Of  state   propert-    246. 
Gives  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,    Rell     &     Co..    Manila,     old     State 

rights  revert,  254. 
Smith,   Thorington   vs..   243. 
Society,    duties    of.    under   insurrections 
23. 
Allegiance    and    protection    basis    of 
29. 
Soiith    Africa,    character    military    gov- 
ernment.  91. 
Guerilla    warfare,    103. 
British   experience,   war  courts.   343. 
Southern      States,      snirit      of      T-^i^oHion 

caused  drastic   measures,  546. 
Soldiers    and    citizens,    la^vs    of    occuTia- 

tion   applicable   to,    142. 
Soldiers  and  camp-folloirer.s,  subject   to 

laws  of  -svar,   143. 
Solfliers.  amenable  to  laws  of  war,   147. 
Soldiers  smd   civilians,   martial   law   ap- 
plies to  both    366. 
Spain,    ousting   severeignty.    capture    of 
Manila,    48. 


670 


MII^ITARY  GOVERNMENT  AND  MARTIAL  LAW. 


Spain,  military   government   in,    72. 
Spanish   Peninsula,   sacking-   cities,    215. 
Special,   responsibility   rule   of  subordi- 
nate,  669,   670,   671. 
Speculations,    carried    too    far,    536. 
State,    limits    danger    from    within    or 
without,   int.,    19. 
Policies   and  martial   law,   int.,   16. 
Policies,  character  of  military.   111. 
State,  deposed,  efficacy  judgments,   168. 
State,  vanquished,  property  rights,   175. 
State,    when    property    belongs    to    and 
how  taken,   197,   198. 

State,  property,  seized   without   tender- 
ness,   246. 

State,  rig:ht.s,  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   law,   distinct   from   Fed- 
eral,   554. 
State,  invaded.  Federal  Government  as- 
sists, 557. 
State,  leg:islnture,  w^hen  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  autliority 
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  indemnitv  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     cf 
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,   19  4. 
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,    difference 

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,    w^hen,    345. 

T 

Tanev,    ("hief-Justice,    Merryman    case, 
490. 

Tennessee,    Coleman   vs.,    152. 

Territory,    occupied,    regarded    as    for- 
eign,  57.   58. 
TrHde.    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.  34."). 
Territory,     held     permanently,     change 
of  government,  when,   34t),   347,   348, 
349. 
Territorie.«i,     martial     law     of,     distinct 
from  Federal,  5a4. 
Martial   law   in,  571,   572,   573,   574. 
Territorial    limits,    martial    law    courts', 

jurisdiction,    614. 
Terror,  may  justify  martial  law,   472. 
Tlieatre  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. 
Thoring^ton  vs.  Smith,  243. 
Title,   post   liminium,   to   movable  prop- 
erty, 228. 
Only  on  possession  of  conqueror,  23S. 
'By     seizure     of     conqueror     of     state 

property,    247. 
In    removable    and    immovable    i  rop- 

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  Department,    282. 
Trade,  laws  of,  attempts  to   evade,    283. 
Attempts    to     evade,     action     of     Su- 
preme Court.  284. 
Trade,   stopped    by    war,    285. 
Trade  intercourse,  w'hen  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. 
Tseaty,    necessary    to    permanent    mili- 
tary government,   39. 
Territory  surrendered   by,   when,   345. 
Treasury   Department,    policy    of    trad^. 

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,   15S. 
Of    civilians    under    63rd    Article    of 
War,   160. 
Tribunals    of   invailed   country,    no    jur- 
isdiction   over   ■u'hom,    149,    150,    151. 
152.    153,   154. 
Tribunals,   military  goverrrment,    333   to 
343. 
British  martial  law,  character  of,  395. 
Tribunals,  martial  law,  605  to  629. 

Correspond    to   offences   of   the   times. 

605. 
Legality  questioned,    606. 


Tribunals,   martial    law,   authority,    607. 

When  invoked,   620. 
Tribunal.s,    if    had    jurisdiction,    not    re- 
sponsible  for   failure    of   facts,    675. 

Members   of,    acting   maliciously,    673. 
Turbulence,  judgments  in  times  of,  649. 

U 

Union,    division    of    friends    of,    in    Mis- 
souri,   520. 
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, 
428. 

Martial    law    in,    offspring    of    neces- 
sity,  437  to  440. 

Supreme    Court,    on    State    exercising 
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. 
Uniteil     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. 

V 

Vanquished   states,    propertv    rights    in, 

175. 

Vigilance,  military  government  to  ex- 
ercise.   324. 

A'iolence,  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,   28.5. 

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 
Court,    int.,    10. 

Limited   by   laws  of  war,   10. 

Of  President,   138. 
War,  oH.sloms  of,  control  invoking  war 
court,    336. 

And  statutes   give   authority   to   mili- 
tary commission,  339. 
War,  exists  till  when.  354. 
War  poirer,   an   extension   of  the   police 
power.   359. 

War,  active,  not  necessarily  theatre   of 
martial  law,   372. 


War.  laws  of,  basis  of  martial  law,  bel- 
ligerents,   380. 
A>'ar     conditions,     British     Government, 

martial  law,  387. 
War  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   emer    ency.    President's    duty.    5. 
W'ar  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  authoritv   martial   law, 

.''i9  2. 
Wellington,    occupation    south    France, 
17. 
Tn    France,   300. 
W'ilkes,  case  of,  U.  S.  Navy,   633. 
Willes,    Justice,    on    subordinates'    rulo. 

672. 
Writ    of    habeas    corpus,    suspension    of 
in  New  Mexico.  512. 
Privilege   in  Colorado.   513. 
Power   to    suspend,    and    martial    law. 
526. 


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