It is sufficient for us that he had reason to believe, and in fact did believe it to be contraband. No attempt has been made to show that he was not acting in good faith."

A recent work on military law, by Lieutenant Ives, assistant professor of law at West Point, 1879, contains a very satisfactory summary of the laws of the United States as to martial law.

He says (p. 10):

"To understand martial law fully we must distinguish between it as a foreign or international fact, and the same thing as a domestic or municipal fact.

"1st. As a foreign fact. When a belligerent occupies the territory of an enemy he has a right by international law to govern it. The political law, so far as the nature of the case demands, is suspended, and military authority supersedes it. If any iogal courts or authority continue to subsist, it is only through the permission of the commander.

"The rule in this country is that all civil and penal law shall continue to take its usual course in the enemy's places and territories so occupied, unless interrupted or stopped by order of the occupying military power; but all the functions of the hos tile government, legislative, executive, or administrative, whether of a general, provincial, or local character, cease or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader."

On p. 11:

By

"We have said, in cases of this kind, that military authority is substituted. this is meant the military authority of the commander, with the sanction of his sov ereign, and, in our armies, his authority under the direction of the President with the express or implied sanction of Congress. This authority must, however, be exercised in accordance with the laws aud usages of war.

"2d. As a domestic fact. Under this heading two cases present themselves:

"(a) Cases of insurrection or rebellion within States or districts occupied by rebels treated as belligerents.

"In this event such States stand, during the war, almost exactly on the same footing as foreign States, and the rules applicable for their government are the same as those just given."

This applies directly to the condition of Louisiana during the civil war.

He cites in a note an extract from the manuscript of Dr. Lieber (on p. 13).

Dr. Lieber was so eminent an authority upon international law that I venture to quote a part of the passage:

"As to martial law at home, which may become necessary in cases of foreign invasion, as well as in cases of domestic troubles, it has full sway in the immediate neighborhood of actual hostilities. The military power may demolish or seize property, or may arrest persons if indispensable for the support of the army or the attaining of the military objects in view. This arises out of the immediate and direct physical necessity, as much so as the law of trespass is inoperative against those who forcibly enter a house in a case of conflagration. This operation of martial law is not exclusive or exceptional. Any immediate physical danger and paramount necessity arising from it dispenses with the forms of law most salutary in a state of peace.

It (martial law) cannot be dispensed with under all circumstances; and if there were a law prohibiting it it would break through the law in cases of direct and absolute necessity. The salvation of a country is like the saving of an individual life. It is paramount to all else."

I do not deem it necessary to refer to the decisions and dicta which declare that "martial law is a monster that cannot exist in the United States," for they are generally so inapplicable to a state of war and the theater of war, and so wanting in just discrimination in applying legal principles, that a detailed review of them is needless. Uttered in partisan times and in the heat and effervescence of mere feeling, they are of little weight as legal authorities.

I think there can be no doubt but that the right to declare martial law, as exercised by General Butler at New Orleans in 1862, is fully recognized as a legal right by the President, the Supreme Court, and by Congress, and is the law of the United States. When it exists it supersedes all other law, except as such other law may be permitted by the military commander, is the only and rightful law, and, for the time it exists, is entitled to the same obedience as the civil law, and its decisions to the same respect as the decisions of civil law courts.

IV.

IS THE LAW OF THE UNITED STATES IN CONFLICT WITH THE LAW OF NATIONS?

Such being the law of the United States, can the action of the Government of the United States, under it and within the territory of the United States, be questioned or interfered with by any foreign State? Clearly not, unless such law is in conflict with international law.

I am fully satisfied it is not in conflict with, but is in harmony with, the law and practice of all civilized States. It is the law of war as recognized by the law of nations.

ENGLAND.

Notwithstanding the confusion of martial with military law, which has sometimes prevailed among English writers and judges, and the erroneous dieta which may be found upon the point, the better opinion has been held by their best writers and judges for more than a century that in case of war or insurrection martial law may be established if necessity requires it, and it will then supersede the civil and criminal law.

The only point in doubt is whether on English soil the declaration of martial law is a prerogative of the Crown, or must, to be legal, be established or approved by Parliament. As every Government has the sovereign right to determine for itself and within its own territory how martial law may be declared or established under its authority, the mode adopted by England can have no effect upon the mode adopted by the United States.

As the right to establish martial law is admitted, the manner in which a sovereign State sees fit to exercise it within its own borders cannot be questioned by any other so long as its exercise conforms to the usages of war.

But in England very high authorities hold that in war and in case of necessity it may be established in territory subject to English law by the mere order of the mili tary commander. I shall not attempt to review the dicta and decisions of English writers and judges. But in Tytler's (afterwards Lord Woodhouselee's) work on courts-martial, I find an illustration so apposite, and the reasons for martial law so admirably expressed and so universal in their application, that I cannot forbear to cite them. Speaking of martial law, he says (pp. 366, 367): "Absolute necessity authorizes the application of extraordinary remedies. It is for the security of the State. The slow and cautious procedure of the ordinary courts of justice keeps no pace with that daring celerity which attends the operations of aebellion; nor are their regulated forms and publicity of procedure fitted to bring to light the dark designs of a conspiracy. It is a remedy warranted only by the last necessity, and therefore to be commensurate in the endurance of its operations to the immediate season of danger-an expedient which requires us to part with our liberty for awhile in order that we may preserve it forever." The last is the phrase used by Judge Blackstone in his commentaries.

On the 24th of May, 1798, the Earl of Camden, Lord Lieutenant of Ireland, on account of insurrection and public disorders, proclaimed martial law, which afterwards being made known to Parliament, received" its entire approbation."

Parliament thereupon passed the act of 1798, which was much more stringent than any of the orders of the United States Government during the rebellion.

It stated that the exercise of martial law was the undoubted prerogative of His Majesty, and it authorized it "whether the ordinary courts of justice are or are not open; and that it should continue from time to time during the continuance of the rebellion." (See Tytler's Courts-Martial, App. VI, pp. 402, 403.)

In February, 1818, Sir Robert Brownrigg, the governor, proclaimed martial law in India.

In Ceylon, Viscount Torrington, upon apprehended insurrection, on the 29th July, 1848, proclaimed martial law, and it was continued till October 10. Several rebels were executed. The conduct of Viscount Torrington was much animadverted upon, and the question came up in Parliament. His defense (see 115 Hans. Parl. Deb., 3d series, p. 843, et seq.), throws much light upon the recognized practice of the English Government. The alleged necessity, the continuance, and the proceedings under martial law are fully shown.

In the debate in Parliament the Duke of Wellington "contended that martial law was neither more nor less than the will of the general who commanded the army. In fact, martial law meant no law at all. Therefore the general who declared martial law, and commanded that it should be carried into execution, was bound to lay down distinctly the rules and regulations and limits according to which his will was to be carried out." In this respect General Butler's proclamation of May 1, 1862, and his subsequent orders from time to time, conformed fully to the rule of duty prescribed by the Duke of Wellington. "Now, he had, in another country, carried on martial law; that was to say, that he had governed a large proportion of the populatiou of a country by his own will. But then what did he do? He declared that the country should be governed according to its own national laws, and he carried into execution that will. He governed the country strictly by the laws of the country, and he governed it with such moderation, he must say, that political servants and judges, who at first had fled or had been expelled afterwards, consented to act under his direction. The judges sat in the courts of law conducting their judicial business and administering the law under his direction."

The Earl Grey said:

"I was glad to hear what the noble Duke said with reference to what is the true nature of martial law. It is exactly in accordance with what I myself wrote to my noble friend at the period of those transactions in Ceylon. I am sure that was not wrong in law, for I had the advice of Lord Tottenham and Lord Campbell, and the attorney-general, and I explained to my noble friend that what is called proclaiming martial lawis no law at all, but merely for the sake of public safety, in circumstances of great emergency setting aside all law, and acting under the military power, a proceeding which requires to be followed by an act of indemnity when the disturbances are at an end." The opinion expressed by Earl Grey, that an act of indemnity was necessary, does not seem warranted by the practice of the English Parliament. No such indemnity appears to have been required for the Duke of Wellington or any other of the military commanders who have exercised the power.

Their justification stands upon the law of nations that gives in time of war to the military commander the right to govern by his own will the hostile territory he conquers or occupies.

In regard to France and the other great states of the continent of Europe, I find it stated in the opinion of Attorney-General Cushing (8 Att'y Gen'l Op., p. 371)—

"That the state of siege may have a lawful origin, like the state of war, either in an act of the political sovereignty or in the necessity of circumstances. When it exists, all the local authority passes to the military commander, who exercises it in his own person, or delegates it if he pleases to the civil magistrates, to be exercised by them under his orders. The civil law is suspended for the time being, or at least made subordinate, and its place is taken by martial law, under the supreme, if not the direct, administration of the military power.

"The state of siege may exist in a city or in a district of the country, either by reason of the same being actually besieged or invested by a hostile force, or by reason of domestic insurrection. In either case it is the precise fact with which we are now concerned. The state of siege of the continental jurists 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. (Maurice Block, s. voc. See also Esriche, s. voc., for similar legal provisions in Spain.")

A reference to the French code and statutes confirms this statement.

V.

This principle, resting upon the law and usages of war, is admitted by the counsel of the claimant to be correct when applied to foreign war. But they attempt to distinguish between a foreign war and domestic insurrection.

It will be seen from the authorities already quoted (Judge Woodbury, Judge Davis, Judge Waite, Ives' Military Law, Dr. Leiber, and Attorney-General Cushing, and the practice in England and France) that no such distinction is recognized; that the same rule of war as to the exercise of martial law applies as well to domestic insurrection as to foreign wars.

Indeed, in domestic conspiracies and insurrections, the secrecy and "daring celerity" of the rebels and conspirators make martial law more necessary than in the regular and publicly known operations of war between states.

In these days when nihilists and communists are conspiring against law, Government, and the public peace in Russia and France, neither of those great powers can safely forego the necessary exercise of martial law.

MARTIAL LAW AT NEW ORLEANS.

Louisiana, in May, 1862, was as much hostile territory as if had never belonged to the United States. For fifteen months the United States laws, courts, and judges had been overturned and superseded by the Confederacy. No man could hold an office without an oath of allegiance to the Confederacy.

The population of New Orleans, whether native or foreign, was nearly unanimous in violent opposition to the United States. No Union man could express an opinion favorable to the United States, except at the risk of his life.

A general invading a foreign country could not have found himself more completely surrounded by a hostile population than was General Butler at New Orleans. The Confederates had left the city, but were closely besieging it with a large army under General Lovell. Correspondence between the rebels in the city and General Lovell and the besieging forces outside was constant, and the utmost vigilance could not prevent it.

1. Before the capture of the city the Confederate General Lovell was obliged to adopt martial law.

2. When he left, and during the interval before General Butler came, the safety of the city from riot and mob rule was secured only by the employment of the European

4

legion by the mayor for that purpose. The terror and fear that prevailed among the better classes is shown by the letter which Mr. Forstall, the agent of Hope & Co., of Amsterdam, wrote to them on May 13, 1862, in regard to the $800,000 of silver placed in his hand on their account. He says:

"The great apprehension at that time, in the event of the fall of New Orleans, was not the action of the Federal Government, which until then on similar events had left private property undisturbed, but the destruction of property and sacking of banks by the rabble out of a mixed population of nearly two hundred thousand, pending the consequent delays of an abrupt and violent change of government, and the event proved that such apprehension was not idle, for after the destruction and robbery of an immense amount of property on our wharves and some of our front stores and warehouses, a general plunder of the city would have taken place by the rabble after the retreat of the Confederate troops but for the armed interference, night and day, of the French and foreign brigades for nearly six days, when the Federal troops took charge of the city with a sufficient force to maintain order." (Parton, p. 373).

3. The proclamation of martial law by General Butler was a necessity. It was the only means to save the city. It was approved by President Lincoln, by Congress, and by the country. The forcible and express language of Mr. Seward on that point in his dispatch to Compte Treilhard, on October 11, 1862, shows the view the Government took of it and of the necessity of its continuauce (p. 33) :

"New Orleans is now partially a military garrison of the United States, in which all civil authority has been subverted by an armed and treasonable insurrection, and the inhabitants there are now secured in their lives, liberty, and property by the presence and authority of the Army under the command of Major-General Butler." This was said by Mr. Seward, in his official capacity as Secretary of State, on the 11 October, 1862, in this very case. Upon what evidence are we to find now, 20 years after, that it was not true?

General Butler at first attempted to govern by leaving the municipal government to the mayor and common council, and the administration of criminal justice to the judges or recorders then in office. But finding, as he believed, that these Confederate officials were sending aid to General Lovell, and could not be trusted and would not do their duty, on the 20th May he suspended them from the functions of their offices and appointed General Shepley military cominandant of the city, and established a provost-conrt, with Major Bell provost-judge. (See General Shepley's "Notice," Parton, p. 336.)

In August, 1862, General Butler wrote to the French consul, who complained of his order requiring citizens to give up their arms:

"Whenever the inhabitants of this city will, by a public and united act, show both their loyalty and neutrality, I shall be glad of their aid to keep the peace, and restore the city to them. Till that time, however, I must require the arms of all the inhabitants, white and black, to be under my control."

VI.

But it is claimed that General Butler excepted foreigners from the operation of martial law. His words are: "All foreigners will be protected in their persons and property, as heretofore, under the laws of the United States." This did not exempt them from martial law, but assured them of protection of their persons and property, now under martial law, as heretofore under the laws of the United States.

Its meaning was that martial law should protect their persons and property-not that they should be exempt from its operation. In reason, no distinction of the kind could be made. All must be subject to martial law. Foreigners, though they ought to be neutral (and many of them were), in fact were often engaged in aiding the rebellion. General Butler's letter to the French consul, of August 14, 1862, shows this. He says: "You will observe that it will not do to trust to mere professions of neutrality. I trust most of your countrymen are in good faith neutral; but it is unfortunately true some of them are not. This causes the good, of necessity, to suffer for the acts of the bad. I take leave to call your attention to the fact that the United States forces gave every immunity to Monsieur Bonnegrass, who claimed to be the French consul at Baton Rouge, allowed him to keep his arms, and relied upon his neutrality; but his son was taken prisoner on the battle-field in arms against us. You will also do me the favor to remember that very few of the French subjects here have taken the oath of neutrality, which was offered to but not required of them by my order, No. 41, although all the officers of the French legion had, with your knowledge and assent, taken the oath to support the constitution of the Confederate States. Thus, you see, I have no guarantee for the good faith of bad men." (Parton's General Butler in N. O., p. 465; see also General Butler's letter to the consuls; Parton, pp. 456, 457, 458.)

No distinction could be justly made between them and native citizens. It would practically have been impossible to secure the objects for which martial law was declared if foreigners had been excepted.

H. Ex. 235--15

Such a meaning as is now given to this phrase by the claimants was not intended by General Butler, nor was it so understood or claimed by foreigners at the time. In May, 1862, in requiring the British members of the European brigade, who had given their arms to Beauregard, to leave the city in twenty-four hours (Parton, p. 357); in his many dealings with foreign consuls, and especially with the French consul, Count Méjan (see Butler's letter to the Secretary of War, Parton, 378), he always held foreigners, like natives, to be subject to martial law; and the foreigners and foreign consuls did not claim the contrary. See General Butler's letter to the English, French, and Greek consuls of June 12, 1862 (Parton, p. 383), in which he says:

"In order to prevent all misconception, and that for the future you gentlemen may know exactly the position upon which I act in regard to foreigners, resident here, permit me to explain to you that I think a foreigner resident here has not one right more than an American citizen, but at least one right less; i. e., that of meddling or interfering by discussion, vote, or otherwise with the affairs of the Government." This was well known in New Orleans three months before Dubos was arrested. In his proclamation of martial law on May 1, he says:

"No publication, either by newspapers, pamphlets, or hand-bills, giving accounts of the movements of the soldiers of the United States within this department, reflecting in any way upon the United States or its officers, or tending in any way to influence the public mind against the Government of the United States, will be permitted." Can any one suppose that native citizens only were prohibited from doing such acts, but that foreigners would be allowed in doing them?

VII.

The claimant's counsel contends that claimant's arrest and imprisonment were illegal, because he was not tried by a military commission.

1. General Butler gave to his provost-court the jurisdiction of "high crimes and misdemeanors." If he thought Dubos' act a minor offense, or for any other sufficient cause saw fit to withhold it from the provost-court, he had the right to do so.

2. As the will of the commander is the basis of martial law, he may or may not resort to a military commission as he thinks best. Ordinarily, he does resort to a commission to ascertain the facts, as he has no time for such trials. The law he decides for himself. But where there are no facts in dispute, where the alleged offender admits the facts, there a military commission is not resorted to, because it would be superfluous. That is this case. Dubos admitted then, and admits now, that he wrote and published the articles complained of (p. 10, 20). He could not dispute the fact, for it appears from Mr. Seward's letter (p. 33) that Dubos signed the articles. He was brought before General Butler (p. 8), and doubtless admitted the facts he could not deny. Mr. Treilhard admitted that Dubos wrote the articles, but attempted to extenuate the offense by saying that Dubos declared "that in writing a few comic articles he did not intend to attack the Government."

The fact that he wrote the articles between August 17 and September 5 (their dates) and published them being admitted, there was nothing left for a commission to ascertain. There was nothing left but for General Butler to decide whether the articles violated the law "by reflecting in any way upon the United States, or were intended in any way to influence the public mind against the United States."

VIII.

CHARACTER OF THE ARTICLES PUBLISHED BY DUBOS.

General Butler decided that the articles did so violate the law.
That decision was clearly right.

The President and Mr. Seward went further and said they were calculated to add to the civil war the aggravation of even a servile war.

Mr. Dubos was a neutral; only two years in this country. It was his duty as a neutral and an honorable man to abstain wholly from intermeddling with politics; above all, from exasperating the public mind against the Government. Instead of this, he wrote in an ironical way to throw contempt on President Lincoln, on General Butler, on the Union Army, to discredit the Union journals as always telling lies, and to stir up the slave-holders to greater violence against the Government, and to greater severity against the slaves.

When arrested he made no excuse or apology. He gave no promise to amend his conduct, but aggravated his offense by the insincere pretence that the articles were "jocular," ," "semi-burlesque," and "not intended to attack the cause of the United States."

The time when they were published added to the evil influence they were calculated to exert. It was August, 1862; the month when great disasters in Virginia had smit