not, in any conceivable case, take the private property of its citizens without making compensation. May not military officers in command of troops engaged in actual hostilities, seize the lands and effects of citizens when impelled by a military necessity? It must be remarked, that whatever the officers, either civil or military, of the United States may do, whether in obedience to a statute of Congress, order of judge, or command of President, the United States is not legally liable to the injured party. He cannot enforce his claim by a suit against the government; the nation as a supreme political society cannot be prosecuted. If the act was unlawful, the officer or agent doing it makes himself personally responsible as a trespasser; the direction of his superior, or even the void statute of the legislature is no protection or justification. If he be not thus personally responsible, it follows as a necessary consequence that the act was lawful. The United States may be morally bound to make compensation, but this duty is one of imperfect obligation; the claimant can only appeal to the discretion of Congress, not to the compulsory power of the courts. The test of the legal, constitutional authority of the government is, therefore, the personal responsibility or non-responsibility of its officers and agents. These remarks are necessary to explain the language of Mr. C. J. Taney, which is now to be quoted.

§ 255. The Supreme Court of the United States had occasion to examine the power of the government to seize the private property of a citizen without making compensation, in the case of Mitchell v. Harmony,1 growing out of events in the Mexican War. Mitchell, a military commander, had seized property of Harmony, an American citizen, claiming the right to do so under a military necessity. Being sued for the value of such property, the question of fact presented for decision was, whether the necessity actually existed. The court were of opinion that it did not, and held the officer responsible. But in rendering his judgment, Mr. C. J. Taney laid down the following most important doctrines: "There are, without doubt, occasions in which private property may

1 13 How. 115.

lawfully be taken possession of or destroyed, to prevent it from falling into the hands of the public enemy; and also where a military officer charged with a particular duty may impress private property into the public service, or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner, but the officer is not a trespasser." I pause in the citation to remark that this duty is only moral and not legal. Were it legal, it could only be so because the act was done without authority, in which case the officer would be a trespasser. The judge proceeds: "But we are clearly of the opinion that in all 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 where 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 upon its own circumstances. It is the emergency which gives the right; and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others, as well as his own observation. And if, with such information as he has a right to rely upon, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterwards that it was false or erroneous, will not make him a trespasser."

§ 256. These rules must be applicable to many cases arising in an internal war, whether of invasion or rebellion. To inquire how far they are applicable would lead me into a discussion too extended for my present purpose. It is plain that military commanders may seize and occupy lands of private citizens when needed for encampments, battles, temporary fortifications; and the houses of private citizens when needed for quarters, and hospitals; and timber, growing and cut, when needed for fuel or works of defence: and provisions when

needed for subsistence; and cattle or horses when needed for transportation. When the necessity actually exists, and the commander acts upon it, he is not personally responsible; and the only duty which rests upon the government is the universal moral duty to do right and justice under all circumstances, a duty which in this case can only be voluntarily performed by Congress, and not enforced by the courts. The Congress, if it deems best, may specially provide for each claimant, or it may pass general statutes under which all demands may be examined and settled; it cannot be compelled to do either.

Express Limitations Continued.

§ 256 a. Since the first edition of this work, the provisions of the Constitution, including the fourteenth amendment, which prohibit state legislation from infringing upon the rights, privileges, and immunities of citizens, have received much attention, and the true meaning to be given to them has been fully established. A series of very carefully considered cases have interpreted the second Section of Article IV.; and they were followed by other remarkable adjudications which, after the most exhaustive discussion, have settled the principles of construction to be applied to the first Section of the fourteenth amendment. Article IV. Section II. is as follows: "The citizens of each state shall be entitled to all the privileges and immunities of the citizens in the several states." And the fourteenth amendment contains this provision: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, lib. erty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

These provisions have given rise to many interesting and 1 Portions of the following sections were written by the author and other parts by the editor.

important decisions of the highest tribunal in our land. So far as these can be separately considered, they suggest the following questions :

First. Who are or are not "citizens of the United States?"

Second. What are the "privileges or immunities" of citizens, which cannot be abridged; and what laws tend to abridge them?

Third. What is or is not "due process of law," whereby alone a person can be deprived of his life, liberty, or property?

Fourth. What is meant by the phrase the "equal protection of the laws?"

These questions are often discussed together, thus preventing, to some extent, a distinct and separate classification of all the cases on this subject, but, so far as practicable, let us consider them in the above order.

Citizens.

§ 256 6. First. The word "citizen" in Section IV., and presumably in the fourteenth amendment, has been held not to include corporations; and therefore a corporation created by one state is not entitled to any more privileges or immunities in another state than the laws of the latter state may see fit to allow.1

The question of who are "citizens" was also much considered in a recent case involving the rights of the Indian tribes; and it was held by a majority of the court that an Indian, born a member of an Indian tribe which still existed and was recognized as a tribe by the United States Government, and who had voluntarily left his tribe and taken up his residence among the white citizens of Nebraska, but had not been naturalized, taxed, or otherwise recognized as a citizen by such state, did not become a citizen of the United States, under the fourteenth amendment, and was not entitled to be registered as a voter thereof. And the

1 See Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Lafayette Ins. Co. v. French, 18 How. 404; Doyle v. Continental Ins. Co., 94 U. S. 535. ED.

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opinion of the majority of the court was pronounced by Mr. Justice Gray. Mr. Justice Harlan and Mr. Justice Wood, however, dissented; and the former, in a very able judgment, forcibly asserted the right of citizenship under such circumstances.

That women may be citizens within the meaning of this clause was abundantly shown in the late case of Minor v. Happersett,2 more fully stated hereafter.

A person born within the United States of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the Emperor of China, is a citizen of the United States.3

A native of China has been thought not entitled to become a citizen of the United States under the existing naturalization laws. But such an individual may be a "person" within the fourteenth amendment.5

Privileges and Immunities of Citizens.

§ 256 c. Second. No attempt has been made to define the "privileges and immunities" of citizens by any exhaustive formula; they have rather been described and partly enumerated. It has, however, been fully determined that the "privileges and immunities " here spoken of, and which are protected throughout the whole country, are those which belong to citizens as such of a state by virtue of their very citizenship, and do not include any special rights which may have been conferred upon them or upon any classes of them." The exact views of the court can be best learned from the language which it has used in pronouncing its most important judgments. In one of these recent cases it said: "It was undoubtedly the object of the clause in question to 1 Elk v. Wilkins, 112 U. S. 94. And see United States v. Osborne, 6 Sawyer, 406. ED.

2 21 Wall. 162. ED.

* In re Look Tin Sing, 21 Fed. Rep. 905. ED.

4 In re Ah Yup, 5 Sawyer, 155. Nor a person half white and half Indian. In re Camille, 6 Sawyer, 541. ED.

In re Parrott, 6 Sawyer, 349. ED.

• See People v. Gallagher, 93 N. Y. 438; Ex parte Kinney, 3 Hughes, 9.