military commander to arrest those regarded as traitors, spies, or mutineers within his camp. The act was justifiable, not merely excusable; it was demanded by a great and overruling necessity.' Thus this precise issue came before Congress.

"Mr. Buchanan, then in the Senate, afterward President, sustained the bill as it stood, and upon the ground that martial law was justified by necessity. The Senate rejected the amendment and passed the bill as it stood, Congress thus recognizing that the act of General Jackson was done in the discharge of his official duty.

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"Mr. John Quincy Adams, who was President of the United States, and is justly regarded as high authority on all questions of international law, in a speech before Congress in April 1842 said: 'General Jackson was acting under the laws of war. In actual war, whether servile, civil, or foreign, the laws of war take precedence. The powers incidental to war are derived not from any internal municipal source, but from the laws and usages of nations. There are, then, two classes of powers, different and often incompatible with each other. The peace power limited by the Constitution. The war power limited only by the laws and usages of nations. The power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, property, and life.'

"President Lincoln recognized the same principle, and acted upon it in numberless cases throughout the war. The first notable act was in the case of Merryman, arrested by General Cadwallader in May 1861, at the very beginning of the war; and in his case the opinion of C. J. Taney was not sustained. It was disregarded by the government, by the courts, and held unsound by the great jurists. President Lincoln's idea of the right to establish martial law is best shown in the 'Instructions for the Government of Armies of the United States in the Field,' prepared by Dr. Lieber, and approved by the President.

"We quote the first four instructions from General Orders, No. 100: "1. A place, district, or country occupied by an enemy stands in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law.

"2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or, by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same.

"3. Martial law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil laws, and of the domestic 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 administration of all civil and penal law shall continue, either wholly or in part, as in time of peace, unless otherwise ordered by the military authority.

"4. Martial law is simple military authority exercised in accordance with the laws and usages of war. Military oppression is not martial law; it is the abuse of the power which that law confers. As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanityvirtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.' "So in his proclamation of September 24, 1862, it is ordered"That during the existing insurrection, and as a means for suppressing the same, all rebels and all persons guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law.

"And the writ of habeas corpus is suspended in respect to all persons arrested, or now or hereafter imprisoned in any place of confinement by any military authority.'

"This proclamation applied to Dubos, who was then (September 24, 1862) arrested and about to be sent to Ship Island.

"On the 3d of March 1863 Congress by its act of that day ratified the action of the President.

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"In the celebrated case of Luther v. Borden (7 How. 1), where the question arose as to the illegality of martial law, declared by the legislature of the State in the case of threatening insurrection, Chief Justice TANEY says: 'If the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war. In that state of things the military officers might lawfully arrest anyone who they had reasonable grounds to believe was engaged in the insurrection.'

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"In Milligan's case (4 Wall. 2) the subject of martial law declared in States not in insurrection and where the courts were open was fully considered. The counsel for the government attempted to justify, by the law and usages of war, acts under martial law committed in Indiana, a State never in insurrection and where the courts were open and Milligan might have been tried in the ordinary and peaceful course of law. Judge Davis (p. 121), in delivering the opinion of the court, said: 'It is idle to inquire what the laws and usages of war are. They can never be applied to citizens in States which have upheld the authority of government, and where the courts are open and process unobstructed.' But (on p. 127) he recognizes the very right the government counsel here contends for. He says: 'There are occasions where martial law can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then on the theater of active military operations where war prevails, there is a necessity to furnish a substitute for the civil authority; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their full course. As necessity creates the rule so it limits its duration.'

"This case was decided by five judges to four. And the four (Chief Justice Chase and Justices Wayne, Swayne, and Miller), through Chief

Justice Chase, said: 'We are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government and to augment the public dangers in times of invasion and rebellion.' He therefore expressly stated that military jurisdiction may be exercised, in time of rebellion and civil war, within States or districts occupied by rebels treated as belligerents, by the military commander under the direction of the President, with the express or implied sanction of Congress, and it supersedes the local law.'

"But, if any uncertainty has ever existed upon the question, the recent decision of the United States Supreme Court in the case of The United States v. Diekelman (92 U. S. S. C. Rep. 520; 2 Otto, 520) completely settles the right of the United States to establish martial law, and settles it as to New Orleans under General Butler in 1862 and as to foreigners in New Orleans as well as to American citizens. Chief Justice Waite, in delivering the opinion, says:

"I. As to the general law of nations.

"The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit so long as they remain, and this as well in war as in peace, unless it is otherwise provided by treaty.

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"The law by which the city (New Orleans) and port were governed was martial law. This ought to have been expected by Diekelman when he dispatched his vessel from Liverpool. The place had been wrested from the possession of the enemy only a few days before the issue of the proclamation, after a long and desperate struggle. It was, in fact, a garrisoned city, held as an outpost of the Union army, and closely besieged by land. When he entered the port, therefore, with his vessel under the special license of the proclamation, he became entitled to all the rights and privileges 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. It was his duty to submit to the same authority.

"Martial law is 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.

"To this law and this government the Essex subjected herself when she came into port.

"General Butler found on board this vessel articles which he had reasonable cause to believe, and did believe, were contraband, because intended to promote the rebellion. It was his duty, therefore, under his express instructions, to see that the vessel was not cleared with these articles on board, and he gave orders accordingly. It matters not now whether the property suspected was in fact contraband or not. It is sufficient for us that he had reason to believe, and in fact did believe, it to be contraband. No attempt has been made to show that he was not acting in good faith.'

"A recent work on military law by Lieut. Ives, assistant professor of law at West Point, 1879, contains a very satisfactory summary of the laws of the United States as to martial law. *

"I think there can be no doubt but that the right to declare martial law, as exercised by General Butler at New Orleans in 1862, is fully recognized as a legal right by the President, the Supreme Court, and by Congress, and is the law of the United States.

"IV. Is the law of the United States in conflict with the law of nations?— Such being the law of the United States, can the action of the Government of the United States, under it and within the territory of the United States, be questioned or interfered with by any foreign state? Clearly not, unless such law is in conflict with international law.

"I am fully satisfied it is not in conflict with, but is in harmony with, the law and practice of all civilized States. It is the law of war as recognized by the law of nations.

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"England.-Notwithstanding the confusion of martial with military law which has sometimes prevailed among English writers and judges and the erroneous dicta which may be found upon the point, the better opinion has been held by their best writers and judges for more than a century that in case of war or insurrection martial law may be established if necessity requires it, and it will then supersede the civil and criminal law. The only point in doubt is whether on English soil the declaration of martial law is a prerogative of the crown, or must, to be legal, be established or approved by Parliament. But in England very high authorities hold that in war and in case of necessity it may be established in territory subject to English law by the mere order of the military commander. In Tytler's (afterward Lord Woodhouselee's) work on courts-martial I find an illustration so apposite, and the reasons for martial law so admirably expressed and so universal in their application, that I can not forbear to cite them. Speaking of martial law, he says (pp. 366, 367): 'Absolute necessity authorizes the application of extraordinary remedies. It is for the security of the state. The slow and cautious procedure of the ordinary courts of justice keeps no pace with that daring celerity which attends the operations of rebellion; nor are their regulated forms and publicity of procedure fitted to bring to light the dark designs of a conspiracy. It is a remedy warranted only by the last necessity, and therefore to be commensurate in the endurance of its operations to the immediate season of danger-an expedient which requires us to part with our liberty for a while in order that we may preserve it forever.' The last is the phrase used by Judge Blackstone is his commentaries.

"On the 24th of May 1798 the Earl of Camden, lord lieutenant of Ireland, on account of insurrection and public disorders, proclaimed martial law, which afterward being made known to Parliament, received 'its entire approbation.' Parliament thereupon passed the act of 1798, which was much more stringent than any of the orders of the United States Government during the rebellion. It stated that the exercise of marshal law was the undoubted prerogative of His Majesty, and it authorized it 'whether the ordinary courts of justice are or are not open; and that it should continue from time to time during the continuance of the rebellion.' (See Tytler's Courts-Martial, App. VI. pp. 402, 403.)

"In February 1818, Sir Robert Brownrigg, the governor, proclaimed martial law in India.

"In Ceylon, Viscount Torrington, upon apprehended insurrection, on the 29th July 1848 proclaimed martial law, and it was continued till October 10.

Several rebels were executed. The conduct of Viscount Torrington was much animadverted upon, and the question came up in Parliament. His defense (see 115 Hans. Parl. deb. 3d series, p. 843, et seq.) throws much light upon the recognized practice of the English Government.

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In the debate in Parliament the Duke of Wellington 'contended that martial law was neither more nor less than the will of the general who commanded the army. In fact, martial law meant no law at all. Therefore the general who declared martial law, and commanded that it should be carried into execution, was bound to lay down distinctly the rules and regulations and limits, according to which his will was to be carried out.' In this respect General Butler's proclamation of May 1, 1862, and his subsequent orders from time to time, conformed fully to the rule of duty prescribed by the Duke of Wellington: 'Now, he had, in another country, carried on martial law; that was to say, that he had governed a large proportion of the population of a country by his own will. But then what did he do? He declared that the country should be governed according to its own national laws, and he carried into execution that will. He governed the country strictly by the laws of the country, and he governed it with such moderation, he must say, that political servants and judges, who at first had fled or had been expelled, afterward consented to act under his direction. The judges sat in the courts of law conducting their judicial business and administering the law under his direction.'

"The Earl Grey said: 'I was glad to hear what the noble Duke said with reference to what is the true nature of martial law. It is exactly in accordance with what I myself wrote to my noble friend at the period of those transactions in Ceylon. I am sure that was not wrong in law, for I had the advice of Lord Tottenham and Lord Campbell, and the attorneygeneral, and I explained to my noble friend that what is called proclaiming martial law is no law at all, but merely for the sake of public safety, in circumstances of great emergency setting aside all law, and acting under the military power, a proceeding which requires to be followed by an act of indemnity when the disturbances are at an end.' The opinion expressed by Earl Grey, that an act of indemnity was necessary, does not seem warranted by the practice of the English Parliament. No such indemnity appears to have been required for the Duke of Wellington or any other of the military commanders who have exercised the power. Their justification stands upon the law of nations that gives in time of war to the military commander the right to govern by his own will the hostile territory he conquers or occupies.

"In regard to France and the other great states of the Continent of Europe, I find it stated in the opinion of Attorney-General Cushing (8 Atty. Gen. Op. 371)—

"That the state of siege may have a lawful origin, like the state of war, either in an act of the political sovereignty or in the necessity of circumstances. When it exists, all the local authority passes to the military commander, who exercises it in his own person, or delegates it if he pleases to the civil magistrates, to be exercised by them under his orders. The civil law is suspended for the time being, or at least made subordinate, and its place is taken by martial law, under the supreme, if not the direct, administration of the military power.