2 53

arbitrary stretch of authority needful to no good end that can be imagined. Whether Congress could have conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law, that the exercise of military power where the rights of the citizens are concerned, shall never be pushed beyond what the exigency requires." With reference to the absence of general legislative power, after war is terminated, the court in Dooley v. United States held that though, prior to the treaty of peace, the military commander might, as a belligerent right, levy customs duties on goods coming into Porto Rico from the United States, after that date he no longer had the authority.55

53 Citing Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75. 54 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074.

55 In its opinion the court said:

46

'In their legal aspect, the duties exacted in this case were of three classes: (1) The duties prescribed by General Miles under order of July 26, 1898, which merely extended the existing regulations; (2) the tariffs of August 19, 1898, and February 1, 1899, prescribed by the President as Commander in Chief, which continued in effect until April 11, 1899, the date of the ratification of the treaty and the cession of the island to the United States; (3) from the ratification of the treaty to May 1, 1900, when the Foraker act took effect.

"There can be no doubt with respect to the first two of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace.

"Different considerations apply with respect to duties levied after the ratification of the treaty and the cession of the island to the United States. Porto Rico then ceased to be a foreign country, and, as we have just held in De Lima v. Bidwell, the right of the collector of New York to exact duties upon imports from that island ceased with the exchange of ratifications. We have no doubt, however, that, from the necessities of the case, the right to administer the government of Porto Rico continued in the military commander after the ratification of the treaty and until further action by Congress. Cross v. Harrison, 16 How. 164; 14 L. ed. 889. At the same time, while the right to administer the government continued, the conclusion of the treaty of peace and the cession of the island to the United States were not without their significance. By that act, Porto Rico ceased to be a foreign country, and the right to collect duties upon importations from New York to Porto Rico also ceased. The spirit as well as the letter of the tariff laws admits of duties being levied by a military commander only upon importations from foreign countries; and, while his power is necessarily despotie, this must be understood rather in an administrative than in a

legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. For instance it is clear that, while a military commander during the Civil War was in occupation of a southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. His power to administer would be absolute, but his power to legislate would not be without certain restrictions, in other words, they would not extend beyond the necessities of the case. Thus, in the case of The Admittance (Jecker v. Montgomery, 13 How. 498; 14 L. ed. 240) it was held that neither the President nor the military commander could establish a court of prize competent to take jurisdiction of a case of capture, whose judgments would be conclusive in other admiralty courts. It was said that the courts established in Mexico during the war were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property, while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize,' although Congress, in the exercise of its general authority in relation to the national courts, would have power to validate their action. The Grapeshot, 9 Wall. 129; 19 L. ed. 651; sub nom. The Grapeshot v. Wallerstein.

"So, too, in Mitchell v. Harmony, 13 How. 115; 14 L. ed. 75, it was held that, where the plaintiff entered Mexico during the war with that country, under a permission of the commander to trade with the enemy and under the sanction of the executive power of the United States, his property was not liable to seizure by law for such trading and that the officer directing the seizure was liable to an action for the value of the property taken. To the same effect is Mostyn v. Fabrigas, 1 Cowp. 180."

CHAPTER LXIL

MARTIAL LAW.

§ 723. Martial Law Defined.

In the most comprehensive sense of the term, Martial Law includes all law that has reference to, or is administered by, the military forces of the State. Thus it includes (1) Military Law Proper, that is, the body of administrative laws created by Congress for the government of the army and navy as an organized force; (2) the principles governing the conduct of military forces in time of war, and in the government of occupied territory; and, (3) Martial Law in sensu strictiore, or that law which has application when the military arm does not supersede civil authority but is called upon to aid it in the execution of its civil functions. This last form of Martial Law is to be sharply distinguished from those forms of Military Law which have been considered in the preceding chapters.1

1"There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within the States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under the military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander, under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities whose ordinary law no longer adequately secures public safety and private rights." Ex parte Milligan, 4 Wall. 2; 18 L. ed. 281.

It may be observed that down to the time of 1689, and indeed nearly a century later by Blackstone, when Martial Law is spoken of, reference is had to the first two of the above described forms of military jurisdiction.

§ 724. Martial Law a Form of the Police Power.

That which brings martial law closely into relation with military law is the fact that it is administered by the armed forces of the State, and that it partakes, in a measure at least, of its absolute character. That is to say, under its control, certain of the guarantees to the individual against personal injury on the part of those in authority, furnished by the civil law, are in aleyBut in all other respects, as we shall see, martial law belongs in the field of civil rather than that of the military law. Indeed, martial law is essentially but a branch of the police law of the State, and its exercise is governed by the same principles as those which control the exercise of the so-called Police Powers of the State.

ance.

The great fundamental principle of American jurisprudence may be said to be the sanctity of the personal and property rights of the individual. To secure these our written constitutions have been adopted. The obverse of this principle is that nowhere in our governments has there been vested absolute power, that is, authority the limits and definition of which the person expressing it himself fixes, and for the improper exercise of which, or for an ultra vires act, he may not be held civilly and criminally responsible. As the Supreme Court in United States v. Lee,2 speaking through Justice Miller, declared:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man, who by accepting office, participates in its functions, is only the more strongly bound to submit to the supremacy, and to observe the liabilities which it imposes upon the exercise of the authority which it gives."

Not only is this the general principle of our system of law and government, applicable to the military as well as to the civil arms. of the State, but our Constitutions, state and federal, specify 2106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171.

particularly that property shall not be taken without due process of law, nor used for a public purpose without due compensation being given, and that the individual illegally deprived of liberty may, by writ of habeas corpus, obtain his release.

Yet more fundamental than the right of the private individual is the right of the public person, the State, and more important than the convenience or even the existence of the citizen are the welfare and life of the civic whole, and thus we find that, fundamentally, no system of political and legal philosophy, save that of pure anarchism, can start with the individual. It is true that all governments have an ethical right to be only in so far as, by their existence, they promote the welfare of their citizens, but, for this very reason, it is necessary that the State, whatever the origin or form of the governmental organization, should possess the power in all cases of need to subordinate private rights to public necessities. Thus every State has the power to exact in the form of taxes contributions from its citizens for its support. It has the power to compel them to serve in its armies, and to lay down their lives that its life, or its real or imagined interests may be protected. It may take private property for a public use, without the consent of its owner. It may declare what shall constitute a crime, and affix and enforce penalties for its commission. It may decline to enforce contracts which it may deem contrary to public policy, and even penalize the entering into of them. It may control all so-called public employments, and fix the rule for services and commodities which they may charge; and, since the decision of the famous case of Munn v. Illinois our courts hold that the State may exercise a similar oversight over all industries which become for any reason "affected with a public interest." Finally, and without reference to whether or not an employment is public, or affected with a public interest, the State may see to it that the individual in the use of his freedom of action, of contract, or of property, does not unduly prejudice the interests of others or society at large. This last comprehensive authority is denominated the Police Power.

3 94 U. S. 113; 24 L. ed. 77.