vent it from exercising at the same time 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 there 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 to be 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.16 The right of confiscation and other belligerent rights thus exercisable by the military authorities within the United States during civil war must, in every case, be authorized by some competent officer or tribunal acting under the sanction of an act of Congress. That is to say, the individual soldier or officer is not allowed individually, and without obtaining the decree of a competent military or other tribunal, to seize private property as a prize of war. 17 Military government of domestic territory in times of peace Military governments established on foreign territory in time of war do not necessarily come to an end with the declaration of peace and the annexation of the occupied territory to the United States; and the same is true after the conclusion of peace of military governments established in insurrectionary domestic territory. But these governments, though military in character, rest upon a different basis, and have somewhat different powers from those maintained during war. Military governments in time of peace, whether in 16 Mrs. Alexander's Cotton, 2 Wall. 404; 17 L. ed. 915; Miller v. United States, 11 Wall. 268; 20 L. ed. 135. 17 Brown v. United States, 8 Cr. 110; 3 L. ed. 504. territories newly annexed to the United States, or in districts lately in rebellion, no longer derive their authority from the President as commander-in-chief of the army and navy, but exist by the tacit or express command of Congress. Until Congress acts, the President may maintain military governments by virtue of the fact that he is commander-in-chief of the army and navy, and obligated to "take care that the laws be faithfully executed wherever the Federal sovereignty extends." Such governments as he may establish or continue in existence in annexed territory after the conclusion of war are, however, subject to the will of Congress either to change or abolish. Illustrative of this principle were the military governments set up in the Southern States during and after the Civil War. While that war was in progress there was no question as to the power of the Executive to set up military governments in districts occupied by the Federal troops. With the conclusion of that war, however, Congress at once asserted its exclusive right to determine the manner in which the States lately in secession should be ruled until their civil status should be fully restored. The right of Congress to maintain military governments in States of the Union after the restoration of peace was based partly on the ground of military necessity—that, though war had ceased, the results for which it had been waged were not yet fully secured-and partly on the ground that it lay with Congress to guarantee to the States loyal governments republican in form, and that to obtain these it was necessary for a time to furnish protection to the loyal portions of their populations.18 Though military in form the governments established or maintained by the President in time of peace in territories subject to the sovereignty of the United States may 18 Texas v. White, 7 Wall. 700; 19 L. ed. 227. not be granted as complete a governing authority as that which they possess in time of war. The authority which may constitutionally be given to or exercised by them is determined by the purposes for which they exist. In time of war they have full power, legislative, executive, and judicial, to do anything the laws of war, as determined by international usage, permit to be done that will strengthen themselves or weaken the enemy. War having ended, however, and the territory become domestic, the powers of the military commander become simply administrative in character, and his acts, so far as the necessities of the case permit, are limited by the general and constitutional laws of the country under which he acts. He, in fact, no longer enjoys authority by virtue of belligerent right, but as an agent of the sovereign of the country for the establishment and maintenance of civil rights therein. As Magoon expresses it, he ceases to occupy the place of the suspended or expelled sovereignty, and becomes an instrument of the new sovereignty. He becomes the representative of sovereignty instead of a substitute. 19 The powers of the military government in time of peace in domestic territory being simply those of a local administrative agent of the United States, are subject to two general limitations. First, being of an administrative character, they do not include general legislative power, that is, the authority to establish laws of more than strictly local effects; and, second, such powers as are possessed, are subject to the privileges and immunities created and guaranteed by the Constitution. How far these constitutional privileges apply to governments, whether military or civil, established in territories belonging to, but not "incorporated" into the United States, has been 19 Reports on the Law of Civil Government in Territory Subject to Military Occupation, p. 20. considered in an earlier chapter. In all other domestic territory, whether in a Territory or a State lately in rebellion, these constitutional limitations apply, and the agents have, therefore, and can be endowed by Congress and the executive only with such powers as may be exercised at any time and in any place under the doctrines of "martial" as distinguished from "military law." In short, their extent is measured by the necessity for their exercise.20 20 Raymond v. Thomas, 91 U. S. 712; 23 L. ed. 434; Dooley v. United States, 182 U. S. 222; 21 Sup. Ct. Rep. 762; 45 L. ed. 1074. CHAPTER LII MARTIAL LAW 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 in the execution of its civil functions.1 This last form of Martial Law, which is to be considered in this chapter, is to be sharply distinguished from those forms of Military Law which have been already considered.2 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 abeyance. But in all other re 1 Ex parte Milligan, 4 Wall. 2; 18 L. ed. 281. 2 Chapter LI. |