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Military Government 


Martial Law. 


William E. Birkhimer, LL.B. 

Major, General Staff, U. S. Army. 





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. 

















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 suppr ess 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. 


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 

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 insurr ection a nd 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 militi ajo 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 


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 t hat 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 : 


"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. 



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. 



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 


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 

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. 

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. 

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- 


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. 


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. | 


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. 


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 


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. 

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 


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. 


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 


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. 


Rights Regarding Public Property. 

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


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. 


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- 


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. 


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. 


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. 



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 


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. 




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. 


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- 


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. 


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. 


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. 


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. 


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. 


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^ 

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- 


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. ; 



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. 



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. 


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. — 


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. 


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 


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


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. 


Responsibility of Subordinates. 

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


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. 


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. 



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


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. 


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


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


State of Siege in France. 


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

Military Government and Martial Law. 

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 


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- 


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. 


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- 


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 

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 

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 

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 


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. 


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. 


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 


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 


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, 


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 

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. 


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. 


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-^ 



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 



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 

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. 


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 

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 


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, 


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 

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 



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 

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. 



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. 


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. 


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. 


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. 


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. 


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. 



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 instit uted. 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- 



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. 


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. 


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. ~ 


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. 


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. 


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 


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. 

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. 



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. 


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. 


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 


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 


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 

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. 



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 

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., 


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. 


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. 


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. 


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. 

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. 



tions, exhausted by internal discord, erect at last a regular 
government, it would be done only with the consent of the 

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. 


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 

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 


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- 

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. 


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 



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;. 

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. 



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. 


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. 


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 


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. 



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 


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. 


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 m ilitary 
occupation are also lost. By the laws and usages of nations 
conques t is a val id title_onlv whilg^ the victor maintain s-the 
exclusive possession of_ the conq uered_country. 2 

44. The fundamental rule that to rend er milit a ry g oyern- 
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. 


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 manife stin£_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- 



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.) 

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. 



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. 


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. 


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. 


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. 



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. 


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., 


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. 


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. 



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. 



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. 



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. 


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. 


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. 


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. 


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. 




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. 


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. 


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. 



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. 


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 


Agents for Carrying Military Governmu;nt into 

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. 



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 


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. 


On Scott's line of operations, at least, the protection of re 
ligion, property, and industry were co-extensive with military 

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. 



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. 


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. 



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. 


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 


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. 



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. 


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 

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 


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. 


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. 



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. 


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 


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 


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, 


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. 


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. 


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. 



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 

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 

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.) 


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 



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. 


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. 



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. 


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. 


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 



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. 


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.) 


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 


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 

"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 

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.) 

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. 



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. 


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 

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 



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. 


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. 


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 

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. 


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. 


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 


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. 


"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. 


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. 


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 


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., 


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. 


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. 


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. 


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. 


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 

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. 


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. 


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. 


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. 


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. 


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. 



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 
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. 


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. 



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. 


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 



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. 


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 

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. 


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. 


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. T his 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. 


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 


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. 


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. 


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. 



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. 


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 

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) . 


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. 


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 


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. 


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 pra ctically there is an important difference between the 

I. 2 Wallace, 275; Young v. U. S.,'97 U. S., pp. 60, 63. 


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. 



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. 



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 

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 

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. 



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 

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. 


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. 


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. 


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. 


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. 


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. 


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. 


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 


•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. 


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 


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. 



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. 


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. 


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 


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. 


civilized warfare. His subjects stand behind him for pro- 

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 

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^;.) 


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, i ts 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. 


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 



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. 


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. 


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. 


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. 


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, 


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. 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- 

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 


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. 


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. -^ 



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. 


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. 


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. 


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. 



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. 


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. 


"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 


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. 


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 

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. 


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. 


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. 


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 


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. 


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. 


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. 


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 

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. 


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. 


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, 


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. 


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. 


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. 


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 



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 

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. 



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. 


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. 


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 

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 - 


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. 


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 


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. 


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. 


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. 


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. 


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. 


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. 


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. 


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. 


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 


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. 


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. 



•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 

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. 


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 

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. 



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. 



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. 


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. 


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. 


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 

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 


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. 


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). 


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. 



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. 


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. 


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. 


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. 


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 


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.» 


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 


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. 


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. 


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. 


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 

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- 


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. 


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 


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. 


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. 

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. 



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. 


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. 


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. 


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. 


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. 


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. 


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. 


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. 


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. 


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. 


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 


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. 



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. 


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. 



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 


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. 



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. 


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. 



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. 


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. 


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. 


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. 


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. 


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 

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. 


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. 


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. 


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. 


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 



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. 



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. 



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. 


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. 


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. 


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. 




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 


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 


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 

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 

"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.) 


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. 


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- 


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. 


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. 


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 

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. 



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. 


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.) 


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 


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 


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 


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."). 


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 

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. 



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 

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. 


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 

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 


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


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. 



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. 


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- 


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. 


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- 


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. 


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.- 


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- 


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- 

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 


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. 


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. 


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 



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 



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. 


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 

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. 


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. 


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. 



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. 


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. 


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 



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 


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. 


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. 


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; 



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- 


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. 


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 


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. 


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. 



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 



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. 



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. 



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. 



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. 


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 

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. 


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. 


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. 


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. 


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. 



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 

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). 


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. 



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- 


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 

I. 16 Howard, p. 190. 


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. 


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- 



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 


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- 


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. 


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 — 




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- 



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 

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 


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 

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 


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. 


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. 


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, 


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. 


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 

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- 


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. 


"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 


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.) 


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. 


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, 

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. 


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 e xist, although it is difficult to exactly define it further 

I. Appendix V. 2. Pratt's Military Law, p. 214. 


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 — 


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. 


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. 


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, 

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. 


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. 


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 

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 

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. 


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. 


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 

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 




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 

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. 



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 


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 


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- 


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. 


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. 


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- 


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). 


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 




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. 


island, where the energetic use of a few soldiers for a brief 
period sufficed to stamp out effectually all resistance to lawful 

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. 


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. 


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. 


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). 


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. 


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. 


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. 


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. 


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. 


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. 



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. 



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 

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 



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. 


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. 


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. 



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, 

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 

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. 



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. 


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, 


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. 


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. 


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 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 

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 


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 


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. 


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. 


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 


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. 

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 



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. 


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. 


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- 



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 

I. Tytler, Military Law, p. 52. 2. Hough's Military Law, p. 350. 
3. Commentaries on Martial Law, p. 129. 


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 


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 


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 

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 

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 aut horities, 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. 



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. 


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. 


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. 


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. 



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. 


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 

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 jud gment enlightened by his opportunities for observation 
I. Diplomatic and official papers, pp. 11 2- 120. 


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 


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. 


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 


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 
f oreign l anguage. They but indifferently responded to those 

I Debate, first session, 28th Congress (1843). 


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 


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. 


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 

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. 


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 

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. 


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 


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, 


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 

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 


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. 

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 



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. 


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 t