ture of the charter government passed "An Act establishing martial law in this State." Borden was a militiaman who, by the order of his superior officer, entered Luther's house to arrest him. Luther thereupon sued Borden in the Circuit Court of the United States. The case came here, and the main question was, which of the two governments was the legal one. It was held that the charter government having been recognized by the other departments of the Federal Government, that recognition was conclusive upon this Court. The justification of the defendant was complete, when it was decided that the government under which he acted was the lawful one. The question, whether that government could place the State under martial rule did not properly arise; and, if it had arisen, it would have been a different question from that which arises in this case. The charter of Charles II imposed no restraint in this respect upon the Legislature of Rhode Island. That Legislature, in its own sphere, was as omnipotent as the British Parliament. There could arise for discussion in that case no question about martial rule under the Federal Government. The Courts of Rhode Island had already decided in favor of the charter Constitution, and of the act of the Legislature; and this Court, in deciding upon State Constitutions and State laws, follows, as everybody knows, the State Courts. The mention of the question of martial rule, however, drew the following observations from the Chief Justice, which are very significant in their bearing upon the present case:

"The remaining question is, whether the defendants, acting under military orders, issued under the authority of the government, were justified in breaking and entering the plaintiff's house. In relation to the act of the Legislature declaring martial law, it is not necessary in the cause before us to inquire to what extent or under what circumstances that power may be exercised by a State.

"Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities.

"And unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority.

The power 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 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 through 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 to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection; and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury willfully done to person or property, the party by whom or by whose order it is committed would undoubtedly be answerable.

"We forbear to remark upon the cases referred to in the argument in relation to the commissions anciently issued by Kings of England to commissioners, to proceed against certain descriptions of persons in certain places by the law martial.

"These commissions were issued by the King at his pleasure, without the concurrence or authority of Parliament, and were often abused for the most despotic and oppressive purposes. They were used before the regal power of England was well defined, and were finally abolished and prohibited by the Petition of Right in the reign of Charles I. But they bear no analogy, in any respect, to the declaration of martial law by the legislative authority of the State, made for the purposes of self-defense, when assailed by an armed force; and the cases and commentaries concerning these commissions can not, therefore, influence the construction of the Rhode Island law, nor furnish any test of the lawfulness of the authority exercised by the government."

Four years later came the Mexican war; in the course of which General Scott, having to occupy certain conquered places, and, therefore, to keep order therein, instituted a body of regulations, in which he mentioned military commissions as one of the instruments of his government. This was, however, wholly the exercise of a belligerent right over a territory conquered; like the exercise of it in California, on its conquest.

In Cross vs. Harrison* it was held that the establishment of civil government in California was the lawful exercise of a belligerent right over a conquered country.

Mitch

Harmony's case t grew out of this Mexican war. ell, being an officer of the army, was sued by Harmony for seizing his property in the Mexican State of Chihuahua. Mitchell insisted, among other things, that the seizure was an act of military necessity. This question was submitted to the jury, and a point was made whether the law on that subject had been correctly laid down. "We are clearly of opinion," says the Court, speaking by Chief-Justice TANEY, "that, in all of these cases, the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and when the action of the civil authority would be too late in providing the means which the occasion calls 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 on its own circumstances. It is the emergency that gives the right; and the emergency must be shown to exist, before the taking can be justified."

In the year 1855 hostilities with the Indians broke out in Oregon, then a Territory, and the Governor thought it proper to declare martial rule. His conduct in this respect became the subject of review at Washington, where it was disapproved. An opinion was then given by Mr. CUSHING, Attorney-General, containing some novel views regarding the subject of martial rule, and discountenancing, as I think, its assumption by the executive department.

This summary brings us to the period of our civil war. How far Congress has sanctioned or acquiesced in the assumption by the Executive of military control over civilians, we have already seen to some extent. It remains only to take notice of a debate, which occurred in the House of Representatives in the closing hours of the last Congress, a year ago, on an amendment to one of the appropriation bills proposed by Henry Winter Davis, to the effect that, when the civil courts were open, no person should be subject to military trial but * 18 How., 164. † 13 How., 116.

those in the military or naval service, or rebel enemies charged with being spies. The amendment was adopted by the House; but it was stated in the debate that, though a majority of the Senate concurred in the principle involved, they refused to pass it as part of the appropriation bill. The debate is remarkable not only for its condemnation of military trials for civilians, but for its exposure of the abuses which had sprung up. We have been told here that the power which we are opposing has never been abused; that none have ever been convicted before a court-martial or military commission, except the guilty. In proposing this amendment, Mr. Davis said:

"I do not desire at this period of the session to detain the House, even by an argument in favor of the amendment I have submitted. I desire to state merely what it contemplates, and to beg the House to give a direct vote upon it. It is a measure which touches the very foundation of republican government-the liberty of the citizen, nothing more, nothing less.

"I do not think it is exclusively, perhaps not chiefly, the fault of those in authority that military commissions have tried, contrary to the Constitution and laws of the United States, many of its citizens. It began first in the rebel States, then spread to the border States, the theatre of armed conflicts, then invaded Pennsylvania, Indiana, and New York, amid the general acclaim of the people; and now that it reaches as far north as Boston we hear the first murmur of its advocates or instigators. What that amendment contemplates is, not to cast imputation upon any Administration or any officer, but, recognizing the error which the people as well as the Government have in common committed against the foundation of their own safety, now, before the very idea of the supremacy of the law has faded from the country, to restore it to its power.

"This amendment is confined rigidly to the loyal States, to the States in which the Courts of the United States are open; to the States whose governments the United States guarantee; so that it does not strip the Government of any power, legal or usurped, which it has thought necessary in its efforts to suppress the rebellion. It leaves everybody to be tried by court-martial who is actually in the military service of the Government, or who, being a rebel enemy, is arrested as a spy. But it annuls everything that has been done heretofore under illegal military commissions; directs all persons now in illegal confinement under sentence of illegal military commissions to be either discharged or delivered to the civil tribunals, to be there proceeded against according to law. There the amendment stops.

"I desire to make an imputation on no one. This amendment is proposed for the benefit of every party and of every Administration. And I trust that the House will allow it to be incorporated into this bill, that it

may become the acknowledged as it is now the supreme law of this land and the right of the citizen."

Mr. Dawes, of Massachusetts, who still is and has been for many years at the head of the Committee on Elections, and than whom there is not a more loyal and true man in all the country, said:

"I believe that during the time I have served in Congress I have, to the extent of my ability, devoted myself to the effort to ferret out and punish those who have been engaged in defrauding the Government. During the last Congress, I devoted, I think, some part of my strength, I know I did a great deal of my time, to that kind of work, calling down upon myself the curses of those who had been engaged as contractors and otherwise in supplying the Government. In carrying out what I was endeavoring to do, I, in cooperation with others, reported to the House a bill which became a law, making contractors with the Government, and those engaged in supplying it, subject to trial by court-martial. I was aware that it was an extreme measure; but I felt at that time that it was necessary to check what seemed to be a growing and an alarming evil. In putting into the hands of the officers of the Government this extreme power, I had confidence that they would exercise it with moderation and reason. But, Mr. Chairman, I am sorry to say that my observation of the administration of that law, of which I take to myself some part of the responsibility, has been such during the past year or two as to compel me to support this amendment. Sir, we seem to have lost sight, in the execution of that law, of the guarantees of the Constitution. We seem to forget that civilians charged with offenses have any right to trial by jury or a knowledge of the offenses for which they are frequently incarcerated in prison.

"Sir, we seem to be taking very little note of the direction in which we are drifting. Day before yesterday I voted for a bill, and I will read its title. It seemed harmless enough. It is a bill 'to provide for the better organization of the pay department of the navy.' It became a law so far as votes in this House were needed for that purpose. There was nothing in its title to attract attention. But, to my astonishment, on turning to the last section I found a provision which I did not and could not suspect from anything indicated by the title, and which is of so extraordinary a character that I am glad that a motion has been entered to reconsider the vote by which it passed this House that I can expose its enormous character. I now call the attention of members to this section to show how unconcernedly we are drifting along in this current, without seeming to be aware of it, into the strangest state of things that ever existed under a free government. In a bill with the title which I have given, it is enacted in the third and last clause that every one, not only in the naval service, but every servant of everybody in the employ of the Navy Department, every little servant who goes in and out of the doors of the Navy Depart