16

When a civil contest becomes a public war, all persons living within limits declared to be hostile become ipso facto enemies, and subject to treatment as such. As the Supreme Court, in Ford v. Surget, say with reference to the Civil War: "The district of country declared by the constituted authorities, during the late Civil War, to be in insurrection against the government of the United States, was enemy territory, and all the people residing within such district were, according to public law, and for all purposes connected with the prosecution of the war, liable to be treated by the United States, pending the war, and while they remained within the lines of insurrection, as enemies, without reference to their personal sentiments and dispositions."

Different conditions prevail, however, in loyal districts. In these the existence of war does not operate to destroy or suspend the civil rights of the inhabitants.

Upon the actual scene of war, there is no question but that, for the time being, the military authorities are supreme, and that these may do whatever may be necessary in order that the military operations which are being pursued may succeed. Here martial law becomes inextinguishable from military government. "When martial law is invoked in face of invasion or rebellion. that rises to proportions of belligerency, it is war power pure and simple." 99 17 It is in this sense that Field defines martial law as "simply military authority exercised in accordance with the laws and usages of war," and the Supreme Court as "the law of necessity in the actual presence of war." 18

The necessities being great and extraordinary, the executive and administrative, that is to say, the military, action that will be justified is correspondingly extensive. But, the populace being loyal, and the territory domestic, private rights of person and

rebel, though recognized as a belligerent, and, therefore, not entitled to claim from the government which he is resisting any of the rights created by its law, may, by that government, if it sees fit, be held responsible as a violator of its law. See Prize Cases, 2 Black, 635; 17 L. ed. 459.

16 97 U. S. 594; 24 L. ed. 1018.

17 Berkheimer, Military Law, 2d ed., 399.

18 United States v. Diekelman, 92 U. S. 520; 23 L. ed. 742.

property still persist, though subject, as in all other cases, to the exercise of the police powers of the State. Those who exercise these powers, though military in character, still remain liable for any abuse of their authority. The civil courts are not necessarily closed, nor are any of the private actions of individuals subject to restraint except in so far as the efficiency of public service may require.

Private property may be seized and appropriated to a public use without the consent of the owner, when the public necessity demands. This taking of private property is, however, the courts have declared, not an exercise of military power which gives to the owner no claim for compensation, but a taking for the public use which, under the provision of the Fifth Amendment, demands that compensation be made. The manner of taking may, however, be that of the police power, in that the urgency may not permit the ordinary proceedings for valuation and condemnation.19

In Mitchell v. Harmony20 Chief Justice Taney has stated the general principle governing the authority and responsibility of military officers in the following words:

"There are," he says, "occasions where private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may impress private property and take it for public use. Under these cir

19

Private property, the Constitution provides, shall not be taken for public use without just compensation. . Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate or impending danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner.

Exigencies of this kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown, the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner." United States v. Russell, 13 Wall. 623; 20 L. ed. 474.

20 13 Wall. 115; 14 L. ed. 75.

In

cumstances the government is bound to make full compensation. to the owner; but the officer is not a trespasser. But in every such case the danger must be present or impending, and the necessity such as does not admit of delay or the intervention of the civil authority to provide the requisite means. It is impossible to define the particular circumstances in which the power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown before the taking can be justified. deciding upon this necessity, the state of facts as they appeared at the time will govern the decision, because the officer in command must act upon the information of others as well as his own observation. And if, with such information as he can obtain, there is reasonable ground for believing that the peril is immediate or the necessity urgent, he may do what the occasion seems to require, and the discovery that he was mistaken will not make him a wrongdoer. It is not enough to show that he exercised an honest judgment, and took the property to promote the publie service, he must also prove what the nature of the emergency was, or what he had reasonable grounds to believe it to be; and it will then be for the court and jury to say whether it was so pressing as to justify an invasion of private right. Unless this is established, the defense must fail because it is very clear that the law will not permit private property to be taken merely to insure the success of an enterprise against a public enemy." "It can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify."

§ 733. Exercise of Military Authority Outside the Immediate Theatre of War: Ex Parte Milligan.

Under the stress of military exigency, upon the actual theatre of war such civil guarantees as the writ of habeas corpus, immunity from search and seizure, etc., may, of course, be suspended. As to this there is no question. There is, however, a serious question whether, when war exists, these rights may, by

legislative act or executive proclamation, be suspended in regions more or less remote from active hostilities. This question was raised and carefully considered in the famous Milligan case21 in which the Supreme Court was called upon to pass upon the authority of a military commission, during the Civil War, to try and sentence upon the charge of conspiracy against the United States government one Milligan, who was not a resident of one of the rebellious States, nor a prisoner of war, nor ever in the military or naval service of the United States, but was at the time of his arrest a citizen of the State of Indiana in which state no hostile military operations were then being conducted.

The military commission had been created pursuant to an act of Congress of March 3, 1863, authorizing the suspension of the writ of habeas corpus throughout the United States by the President, but providing that lists of persons, not prisoners of war, held under military authority should be furnished within a given time to the judges of the federal circuit and district courts, and that one so imprisoned whose name was not thus reported might appeal for release to the civil courts.

Five of the justices of the Supreme Court held that Congress was without the constitutional authority to suspend or authorize the suspension of the writ of habeas corpus, and provide military commissions in States outside the sphere of active military operations and with their civil courts open and ready for the transaction of judicial business. The remaining four justices held that Congress had not in fact made legislative provision for the military tribunal in question, but asserted that it possessed the constitutional authority so to do, should it see fit.

Shortly speaking, the argument of these four dissenting justices was as follows: "Congress," they said, "has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all power essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns: 21 Ex parte Milligan, 4 Wall. 2; 18 L. ed. 281.

That power and duty belong to the President as commander-inchief. We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine to what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety. It was for Congress

to determine the question of expediency."

The fact that the civil courts were open and undisturbed in the execution of their functions is not to be taken as conclusive evidence that the exercise of martial law is unnecessary, it is argued, for, it is pointed out, it may often happen that courts, though open and undisturbed in the execution of their functions, may in fact be entirely unable to avert threatened danger, or to punish with adequate promptitude guilty conspirators. Especially in time of civil war, it is observed, the very judges and marshals of the courts may be in more or less active sympathy with the rebels.

It will be seen that, according to the reasoning of these justices, necessity is still the test by which is to be declared the legality of military acts when the citizen is thereby affected either in his person or property. But this necessity, it is argued, is one which it is the province of Congress conclusively to determine, the only limit upon its discretionary powers in this respect being that somewhere war must exist, to which the United States is a party. Whenever, then, such a war does exist, Congress, it is held, if it sees fit, so far as the judiciary may properly prevent, may at once suspend the writ of habeas corpus and generally supersede civil by military government throughout the length and breadth of the land. Its judgment, and not the actual facts of the case, is to determine the presence of that necessity which furnishes the