being employed avowedly and in fact "to prevent obstruction to the federal postal service, to aid the federal courts in the exercise of their jurisdiction, and to enforce the law of July 2, 1890, forbidding conspiracies against interstate commerce." 33

34

In Re Dets, decided in 1895, the Supreme Court upheld the action of the federal authorities in 1894, in the course of the opinion saying:

"The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia. are at the service of the Nation to compel obedience to its laws." The court also goes on to assert that "the right to use force does not exclude the right of appeal to the courts for a judicial

23 26 Stat. at L. 109, § 1. "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal." § 4. "The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act, and it shall be the duty of the several District Attorneys of the United States under direction of the Attorney-General to institute proceedings in equity to prevent or restrain such violations."

To the protest which Governor Altgeld of Illinois issued, President Cleveland replied:

"Federal troops were sent to Chicago in strict accordance with the Constitution and laws of the United States, upon the demand of the Post-Office Department that obstruction of the mails should be removed, and upon the representations of the judicial officers of the United States that process of the Federal Courts could not be executed through the ordinary means, and upon abundant proof that conspiracies existed against commerce between the States.

"To meet these conditions, which are clearly within the province of Federal authority, the presence of Federal troops in the city of Chicago was deemed not only proper but necessary, and there has been no intention of thereby interfering with the plain duty of the local authorities to preserve the peace of the city."

34 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092.

determination and for the exercise of all their powers of prevention." 35,

§ 719. Military Government.

In a previous chapter the special administrative law governing persons in the military service of the United States has been considered. We have now to speak of the law regulating the conduct of the national armed forces in the possession and government of particular territories.

As will later appear, military government may constitutionally exist either in time of peace or of war, and over domestic as well as foreign territory.

§ 720. Military Government of Foreign Territory.

Military government of foreign territory by the armed forces of the United States may exist either as the result of hostile occupation in time of war, or by friendly international agreement, in time of peace. An instance of this last was the military occupation and administration of Cuba by the United States. The constitutional authority for thus employing our troops in foreign territory was derived not from the war powers of the President acting as commander-in-chief of the army and navy, for there was no existing war, but from the general powers of the United States as a sovereign State in all that relates to international relations.36

35 In this Chicago Railway Strike episode, as Professor Fairlie remarks in his National Administration, p. 38, the only novel feature was the use of the army for the enforcement of the comparatively recent statute prohibiting conspiracies against interstate commerce, and in the broader interpretation given to what constitutes an obstruction of the postal service. Before this when strikers had cut out passenger and baggage cars from a train leaving the mail cars undisturbed, it had been held that the mails were not interfered with. But in this case it was held that such an act did amount to an obstruction of the postal service.

For a detailed history of the instances in which federal aid has been extended in quelling domestic disturbances, see Senate Document No. 209, 57th Congress, 2d Session.

36 See ante, § 36.

The law of military occupation of foreign territory is that established by general international law. According to this, the power of the military commander is constitutionally supreme. For no act that he or his subordinates may commit can he or they be held civilly liable in the civil courts of the United States or of the State whose territory is occupied. The only limits to the military authority are those which international law and usage, upon the ground of humanity and justice, impose, and breaches of these are cognizable only in the military courts. As was said in New Orleans v. Steamship Co.37 and repeated in Dooley v. United States:38 "The conquering power has the right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe the revenues to le paid, and apply them to its own use or otherwise. It may d› anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such case:, save those which are found in the laws and usages of war. These principles have the sanction of all publicists, who have considere‹ the subject."

"Martial law in a hostile country consists in the suspension by the occupying military authority of the criminal and civil law, and of the domestic administration and government in the occupied place or country, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, so far as military necessity requires this suspension, substitution or dictation." 39

"The commander of the forces may proclaim that the administration of all civil and penal law shall continue wholly or in part.

37 20 Wall. 387; 22 L. ed. 354.

38 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

39 Lieber's Instructions for the Government of Armies of the United States in the Field.

as in times of peace, unless otherwise ordered by the military authority." 40

During military occupation of foreign territory, though there is no obligation either by constitutional or international law, to establish courts or to permit the continued operation of local courts for the trial of ordinary civil and criminal cases according to local law, there is nothing to prevent this being done, and in fact, in modern times this is usually done. Indeed, the principle is now well established that, until expressly declared otherwise, local private law and the tribunals for its administration, continue in operation. But in all such cases the courts, whether established or allowed to continue, exist essentially as military courts, and the law which they enforce has validity only by military order and permission. For the first effect of military occupation is to sever, for the time being, all the former political relations of the inhabitants of the territory, and to destroy the de jure character of the former organs of government.

§ 721. Military Government of Hostile Domestic Territory.

In practically all respects the laws governing the military occupation of hostile foreign territory apply to the military occupation of hostile domestic territory in time of a civil war which has assumed a public character.

In the case of New Orleans v. Steamship Co.,1 from which quotation has already been made, the court said: "Although the city of New Orleans was conquered and taken possession of in a civil war waged on the part of the United States to put down an insurrection and restore the supremacy of the National Government in the Confederate States, that government had the same power and rights in territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war." 42

40 Instructions, etc.

41 20 Wall. 387; 22 L. ed. 354.

42 Citing the Prize Cases, 2 Black, 635; 17 L. ed. 459; Mrs. Alexander's Cotton, 2 Wall. 404; 17 L. ed. 915; and Mauran v. Insurance Co., 6 Wall. 1; 18 L. ed. 836.

43

The fact that the sovereign State continues to claim sovereignty and to exercise powers as such does not prevent it from exercising at the same times all the rights of a belligerent. This was conclusively determined in the Prize Cases. In that case, as will be remembered, it was held that it lies within the discretion of the President as commander-in-chief of the army, a discretion not reviewable by the courts, to determine when an insurrection or civil war has assumed such proportions as to warrant him in declaring it a public war, and the insurrectionists belligerents. When this is done, the war becomes a territorial one, and all inhabitants of the revolting district become ipso facto public enemies.

In Mrs. Alexander's Cotton" the court declared: "It is said that though remaining in rebel territory, Mrs. Alexander has no personal sympathy with the rebel cause, and that her property therefore cannot be regarded as enemy property; but the court cannot inquire into the personal character and dispositions of individual inhabitants of enemy territory. We must be governed by the principle of public law, so often announced by this bench as applicable alike to civil and international wars, that all the people of each State or district in insurrection against the United States must be regarded as enemies, until by the action of the legislature and the executive, or otherwise, that relation is thoroughly and permanently changed."

In Miller v. United States was sustained the authority of the acts of Congress of 1861 and 1862, providing for the confiscation of certain classes of private property owned by persons living in the insurrectionary districts, the acts being upheld not as criminal statutes but as an exercise of belligerent right. Had the acts been simple municipal laws inflicting a punishment for an offense against the sovereignty of the United States, they would, the court said, be in violation of the Fifth and Sixth Amendments to the Constitution, but, being a legitimate exercise of a bellig43 2 Black, 635; 17 L. ed. 459. 44 2 Wall. 404; 17 L. ed. 915. 45 11 Wall. 268; 20 L. ed. 135.