tion itself so important, that an exception in regard to it is to be considered as necessarily implied in the Bill of Rights. Does any department of the government possess such a function which may at times displace some of the safeguards that, protect life, liberty, and property?

§ 710. I answer unhesitatingly, Congress does not. The position maintained by Mr. Chief Justice Chase and other dissenting judges in Ex parte Milligan,1 that Congress may, under certain circumstances, provide for martial law, military arrests and trials of civilians, seems to be the most utterly indefensible of any. It is universally conceded that the legislature cannot resort to these violent measures in peace. But in fact, Congress possesses no function whatever that can be taken as the basis of its authority to enforce martial law in war, which would not be an equally strong support for the exercise of that authority in peace. Is it the function of establishing inferior courts, or of raising armies and navies, or of governing the forces? All these might be called into full action in time of peace. The power to make rules concerning captures plainly does not involve the consequences under consideration, while that of declaring war is exhausted by the very act of declaration. Indeed, it is only by imputing to Congress an attribute not granted to it that of waging war

that its authority to enforce martial law can receive even a semblance of support.

§ 711. Is the President clothed with the function? If so, it cannot be in his capacity of executive magistrate, for as such he must execute laws, and he, to an equal extent with the law-makers, is bound by the inhibitions of the first eight Amendments. If the President may resort to martial law under any circumstances, it cannot be as a part of either the judicial or the legislative systems of the United States, but must be as a special means of waging war, of carrying out the particular duties which devolve upon him as Commander-inChief. If military arrests, trials, and punishments employed against civilians are ever lawful, they are so not because they are a kind of judicial proceeding supplementing the ordinary

1 Wallace's R. 2.

methods of peace, but because they are a species of hostilities directed against individuals who have placed themselves in the position of enemies, and have therefore deprived themselves of all the safeguards which the Constitution throws about the lives, liberty and property of citizens.

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§ 712. Does such a power exist? There are three subjects bearing related names, but having no elements in common, and care should be taken to distinguish them. "Military Law" is the code of rules for the government of the army and navy; it is a department of the municipal law applicable to a small portion of the people engaged in a special service; it is enacted by Congress and executed by the President; civilians are, by the very terms of the Constitution, exempted from its operation. Military Government" is the authority by which a commander governs a conquered district, when the local institutions have been overthrown, and the local rulers displaced, and before Congress has had an opportunity to act under its power to dispose of captures, or to govern territories. This authority in fact belongs to the President; and it assumes the war to be still raging, and the final status of the conquered province to be undetermined, so that the apparent exercise of civil functions is really a measure of hostility. "Martial Law" is something very different. It acts, if at all, within the limits of the country, against civilians who have not openly enrolled themselves as belligerents among the forces of an invading, or a rebellious enemy; if set in motion at all, it must be as a concomitant of war. It is thus described by a late writer: Martial Law is, in short, the suspension of all law but the will of the military commanders entrusted with its execution, to be exercised according to their judgment, the exigencies of the moment, and the usages of the service, with no fixed or settled rules or laws, no definite practice, and not bound even by the rules of the military law." If this description bears any resemblance to the fact, every American citizen must hope that neither President nor Congress can set such an engine of abuse and oppression at work within the limits of the United States.

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1 Finlason on Mar. Law, p. 107.

§ 713. A most elaborate and exhaustive examination of the power to enforce martial law in Great Britain was lately made by Lord Chief Justice Cockburn. After a review of the precedents ancient and modern, set forth in the wonderfully clear and orderly manner for which he is so preeminently distinguished, the Chief Justice reaches the conclusion that the Crown has no authority by virtue of its prerogative to enforce martial law in any part of the realm where the laws of England prevail; but admits that Parliament may call it into being and operation. A solemn judgment of the Supreme Court in Ex parte Milligan 2 has denied the lawfulness of martial law within the United States, except in districts actually occupied by the opposing forces, which are the very theatre of hostilities, and in which the civil courts are, for the time being, completely displaced. The extent of this exception will appear in the following extract from the prevailing opinion: 3 "It follows from what has been said on this subject, that there are occasions when martial rule can properly be applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction.”

§ 714. These sweeping conclusions of the Supreme Court seem to be open to some criticism. Mr. Justice Davis in the passage quoted, seems to have confounded martial law with military government, and to have overlooked the fact that martial law is not in any true sense a judicial proceeding, or

1 Charge of the Lord Chief Justice of England, in the case of the Queen v. Nelson and Brand. London, 1867.

2 4 Wallace's R. 2.

3 Ibid. 127.

a means of executing the civil laws, but is a method of waging war. It may be conceded that the President has no authority to declare or proclaim martial law, and make it general in a district where the courts are open and unobstructed; Congress certainly has none. But the President, as Commanderin-Chief, wages war; the sole object of his hostile endeavors is success. In respect to some of his operations he is certainly untrammelled by the restraining clauses of the Bill of Rights. In an internal war of rebellion the enemies are citizens and traitors, and thus guilty of civil offences; but he may kill or capture them, or seize and destroy their property, and thus break up their armed opposition. The possibility of civil war therefore demands at least one implied exception to the general clauses of the first eight amendments. May it not admit of others? One other is universally conceded. A citizen civilian, in no way connected with the hostile array as a belligerent, who should act as a spy upon the military movements, operations, and preparations, may be seized, tried, and punished by military agents. The explanation of this acknowledged rule is simple and plain. A spy interferes directly with the process of waging war; he perils the success of extensive campaigns; he renders the final result of the struggle doubtful; he is in fact acting as an enemy, may be treated as an enemy, and as an enemy forfeits all civil protection, even though his offence might also be considered as treason. This illustration may serve to indicate the occasions upon which the President may resort to martial law, and the limits upon its exercise by him. Whenever a civilian citizen or alien is engaged in practices which directly interfere with waging war, which directly affect military movements and operations, and thus directly tend to hinder or destroy their successful result, and when, therefore, these practices are something more than mere seditious or traitorous designs or attempts against the existing civil government, the President as Commander-in-Chief may treat this person as an enemy, and cause him to be arrested, tried, and punished in a military manner, although the civil courts are open, and although his

offence may be sedition or treason, or perhaps may not be recognized as a crime by the civil code.

I am aware that such a person would not technically be an enemy, and if arrested would not technically be a prisoner of war; but he would be a quasi-enemy, and would have placed himself beyond the pale of civil protection. If these views are correct, it follows that the legality of every military arrest, trial, and punishment must be determined upon its own circumstances, and not according to any general and inflexible rules. In fact, these proceedings would be placed upon exactly the same footing as those other apparent breaches of the Bill of Rights which consist in destroying the private property of civilians, or appropriating it to use, when military exigencies demand such measures.1

SECTION VIII.

IMPEACHMENT.

§ 715. The clauses of the Constitution which directly refer to Impeachment are the following: "The House of Representatives shall have the sole power of impeachment." Art. I. Sec. II. § 5. "The Senate shall have the sole power to try all impeachments; when sitting for that purpose they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside, and no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Art. I. Sec. III. §§ 6 and 7. "The President and Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors." Art. II. Sec. IV. The im

1 See § 254-256.