3, ch. 1; Vattel, Droit des Gens, liv. 3, ch. 4, § 51; Martens, Nauvelles Causes Cel., tome 1, pp. 56, et seq.; Rayneval, Inst. du Droit de la Nat., etc., liv. 3, ch. 3, § 1.)

§ 23. A declaration of war does not ipso facto extinguish treaties between the belligerent states. Treaties of friendship and alliance are necessarily annulled by a war between the contracting parties, except such stipulations as are made expressly with a view to a rupture, such as limitations of the general rights of war, etc. So of treaties of commerce and navigation; they are generally either suspended or entirely extinguished by a war between the parties to such treaties. All stipulations, with respect to the conduct of the war, or with respect to the effect of hostilities upon the rights and property of the citizens and subjects of the parties, are not impaired by supervening hostilities, this being the very contingency intended to be provided for, but continue in full force until mutually agreed to be rescinded. There are many stipulations of treaties, which, although perpetual in their character, are suspended by a declaration of war, and can only be carried into effect on the return of peace. But this subject will be further noticed in another chapter. (Vattel, Droit de Gens, liv. 3, ch. 10, § 175; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 10; Kent, Com. on Am. Law, vol. 1, p. 175.)

§ 24. We have thus far mostly confined our remarks to the effects of a declaration of war upon belligerent states and their subjects in their international relations. Its effects upon the relations of the citizens of a belligerent state with their own government belong to constitutional or municipal law, rather than to general public law; nevertheless, as there are certain general principles which govern these relations in all countries and under all governments, it may be proper to allude to them in this place. For example, any place, port, town, fortress, or section of country occupied by the enemy, is, for most purposes, regarded in law as hostile terri tory, so long as such occupation is continued. If the place so occupied were previously neutral, or a part of our own territory, it is no longer regarded as such, for it would be absurd to suppose that persons who are hostile themselves, or who are under a hostile authority, are to exercise the same civil rights as neutrals or citizens in time of peace.

The relations of the government to a place or territory so occupied or situated, are of a military character, and consequently are not regulated by the civil laws, which are made for the condition of peace. This change of relation, or rule of government, does not result from anything in the particular constitution or laws, but from the fact of the existence of war and the hostile occupation of the place. The same rule applies to a place, or district of country, which is invaded or besieged by an enemy; the fact of the invasion or beleaguerment is, in itself, a substitution of military for civil authority; the absence of peace suspends the law of peace, and the presence of war substitutes military rule. What is called a declaration of martial law in one's own country, is the mere announcement of a fact; it does not, and cannot create that fact. The exigencies which, in any particular place, justify the taking of human life without the interposition of the civil tribunals, and without the authority of the civil law, may justify the suspension of the power of such tribunals and the substitution of martial law. The law of war, or at least many of its rules, are merely the results of a paramount necessity. On this point we quote the language of Attorney-General Cushing: "There may undoubtedly be, and have been, emergencies of necessity, capable of themselves to produce, and therefore to justify such suspension of all law, and involving, for the time, the omnipotence of military power. But such a necessity is not of the range of mere legal questions. When martial law is proclaimed, under circumstances of assumed necessity, the proclamation must be regarded as the statement of an existing fact, rather than the legal creation of that fact. In a beleaguered city, for instance, the state of seige lawfully exists, because the city is beleaguered, and the proclamation of martial law, in such case, is but notice and authentication of a fact,- that civil authority has been suspended, of itself, by the force of circumstances, and that, by the same force of circumstances, the military has had devolved upon it, without having authoritively assumed, the supreme control of affairs in the care of the public safety and conservation. Such, it would seem, is the true explanation of the proclamation of martial law at New Orleans by General Jackson." The declaration, or exercise of martial

law in a foreign country, by the commander of an invading, occupying, or conquering army, is an element of the jus belli, and will be more particularly treated of in the chapters on the rights of military occupation and of complete conquest. (Vide Post, chapters xxxii and xxxiii; Cushing, Opinions of, U.S. Att'ys Gen., vol. 8, pp. 365, et seq.; Hansard, Parl. Deb., N. S., vol. 9; third series, vol. 115; Gardner, Institutes of Am. Int. Law, p. 208.)

§ 25. Martial law has often been confounded with military law, but the two are very different. Military law, with us, consists of the "rules and articles of war," and other statutary provisions for the government of military persons, to which may be added the unwritten or common law of the " usage and custom of military service." It exists equally in peace and in war, and is as fixed and definite in its provisions as the admiralty, ecclesiastical, or any other branch of law, and is equally, with them, a part of the general law of the land. But, in the words of Chancellor Kent, "martial law is quite a distinct thing." It exists only in a time of war, and originates in military necessity. It derives no authority from the civil law, (using the term in its mere general sense,) nor assistence from the civil tribunals, for it overrules, suspends and replaces both. It is from its very nature, an arbitrary power, and "extends to all the inhabitants (whether civil or military) of the district where it is in force." It has been used in all countries and by all governments, and it is as necessary to the sovereignty of a state as the power to declare and make war. The right to declare, apply and enforce martial law, is one of the sovereign powers, and resides in the governing authority of the state, and it depends upon the constitution of the state whether restrictions and rules are to be adopted for its application, or whether it is to be exercised according to the exigencies which call it into existence. But even when left unrestricted by constitutional or statutary law, like the power of a civil court to punish contempts, it must be exercised with due moderation and justice; and, as "paramount necessity" alone can call it into existence, so must its exercise be limited to such times and places as this necessity may require; and, moreover, it must be governed by the rules of general public law, as applied to a state of war. It, therefore, cannot be

despotically or arbitrarily exercised, any more than any other belligerent right can be so exercised. (Cushing, Opinions of U. S. Att'ys. Genl., vol. 8, pp. 365, et seq.; Wolfius. Jus Gentium, § 863; Grotius, De Jur. Bel. ac Pac., lib. 2, cap. 8; Kluber, Droit des Gens, § 255; O'Brien, American Military Law, p. 28.)

$26. The laws of different countries, with respect to the application and exercise of this power, are very different. In the jurisprudence of France, for example, three conditions of things are carefully defined and provided for: 1st, The state of peace, where all persons are governed by the civil or military authority, according to the class to which they belong, and the law applicable to the particular case; 2d, The state of war, where the law and authority governing depends upon the particular condition of the place and circumstances of the case, the civil authority sometimes acting in concert with, and sometimes in subordination to the military; and 3d, The state of seige, where the civil law is suspended for the time being, or, at least, is made subordinate to the military, and the place is put under martial law, or under the authority of the military power. This may result from the presence of a foreign enemy, or by reason of a domestic insurrection, and the rule applies to a district of country as well as to a fortress or city. A similar system is adopted in Spain, and in most of the countries of continental Europe. "The state of seige of the continental jurists," says Cushing, "is the proclamation of martial law of England and the United States, only we are without law on the subject, while in other countries it is regulated by known limitations." The English common law authorities, and commentators, generally confound martial with military law, and, consequently, throw very little light upon the subject considered as a domestic fact, and, in parliamentary debates, it has usually been discussed as a fact, rather than as forming any part of their system of jurisprudence. Nevertheless, there are numerous instances in which martial law has been declared and enforced in time of rebellion or insurrection, not only in India and British colonial possessions, but also in England and Ireland. It seems that no act of parliament is required to precede such declaration, although

it is usually followed by an act of indemnity, when the disturbances which called it forth are at and end, in order to give constitutional existence to the fact of martial law. (Block, Dic. de l'Admin. Française, passim.; Escriche, Dic. de Leg. y Jurisprudencia, passim.; Cushing, Opinions of U. S Att'ys Genl., vol. 8, pp. 366, et seq.; Hale, Hist. Com. Law, p. 39; Stephen, Commentaries, vol. 2, p. 602; Hansard, Parl. Deb., N. S., vol. 11; third series, vol. 115; Grant v. Gould, 2 H. Blackstone, Rep., p. 98; Blackstone, Commentaries, vol. 1, p. 136; Bowyer, Universal Pub. Law, p. 424.)

§ 27. Martial law is not mentioned by name in the constitution or statutes of the United States, nor is there much light thrown upon the subject by the constitutions and laws of the several states of the union, or the decisions of our courts. It is true that the constitution recognizes the fact that there may be cases of rebellion and invasion, but it has made no general provision for the supposable or necessary incidents to such a condition of affairs. The only clause having direct relevancy to this subject, is the declaration that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion the public safety may require it." Now, the suspension of the writ of habeas corpus is not, in itself, a declaration of martial law; it is simply an incident, although a very important incident to such declaration. In other words, the incident is constitutionally provided for, while the substance, or general principle, is merely recognized, but in no other manner alluded to. Probably the framers of that instrument saw the difficulty of attempting to regulate, by any fixed rules, that which results from paramount necessity alone, and which, from its very nature, is scarcely susceptible of minute regulation. Practically, in England and the United States, the essence of martial law, is the suspension of the privilege of the writ of habeas corpus, — that is, the withdrawal of a particular person, or of a particular place or district of country from the authority of the civil tribunals. A mere declaration of martial law, no matter how much, "in case of rebellion or invasion, the public necessity may require it," would be utterly useless unless accompanied by a suspension of the privilege of the writ of habeas corpus; for if the local civil