Rhode Island and Providence Plantations is hereby placed under martial law, and the same is declared to be in full force, until otherwise ordered by the General Assembly, or suspended by proclamation of his Excellency the Governor of the State."

In the case of Luther v. Borden10 an action of trespass quare clausum fregit was brought by the plaintiff against the defendant for breaking and entering the house of Luther. Border set up as defense that he was a member of the military called out in defense of the old government, that he acted under orders, and that those orders were justified by the exigencies of the time. The case having reached the Supreme Court, Taney, in his opinion, said:

"In relation to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by the State. Unquestionably a military government, established as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing government was placed by the armed resistance to its authority. It was so understood and construed by the state authorities. And, unquestionably, a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of the military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain

10 7 How. 1; 12 L. ed. 581.

itself and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest anyone, who, from the information before them they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, and any injury wilfully done to person or property, the party by whom, or by whose order, it is committed, would undoubtedly be answerable."

§ 730. Martial Rule and War Distinguished.

The correctness of the reasoning and of the conclusion of the Chief Justice in this case cannot be questioned except in one respect. Speaking of the condition of affairs existing at the time the alleged trespass was committed, Taney said: "It was a state of war and the established government resorted to the rights and usages of war to maintain itself and to overcome the unlawful opposition." It is not correct to say that war then existed in Rhode Island. War, in public law, has, as is well known, a definite meaning. It means a contest between public enemies termed belligerents, and to the status thus created, definite legal rights and responsibilities are attached by international and constitutional law. War is thus sharply distinguished from a mere insurrection or resistance to civil authority. Until the parties to such a contest are recognized as belligerents, that is, until the struggle has become a "war," the matter is wholly one of municipal law, one lying wholly without the province of international law which defines and fixes the laws and usages of war. Thus Luther's act was undoubtedly justified, under the constitutional principles governing the rule of martial law, but it could have received no sanction from the laws of war which are applicable

only to a state of war. Indeed, it may be said that a State of the Union has not the constitutional power to create, by statute or otherwise, a state of war, or by legislative act or executive proclamation to suspend, even for the time being, all civil jurisdiction.

This point is emphasized by Justice Woodbury in his dissenting opinion. After showing that for many years no such an act would be tolerated in England, and pointing out the constitutional safeguards to personal liberty that have been specifically provided in American public law, the justice says: "It looks certainly like pretty bold doctrine in a constitutional government, that, even in time of legitimate war, the legislature can properly suspend or abolish all constitutional restrictions, as martial law does, and lay all the personal and political rights of the people at their feet." In fact, however, Woodbury continues, no war in a technical sense, that is, as distinguished from a domestic insurrection, existed or constitutionally could have existed in Rhode Island at the time. No State of the Union, he points out, has the authority to declare war, this power, by the federal Constitution, being vested in Congress," or "to engage in war unless actually invaded, or in such imminent danger as will not admit of delay," 12 this last qualification without doubt referring to danger from a foreign source or from Indians. The dissenting opinion continues: "Congress alone can declare war, and

.. all other other conditions of violence are regarded by the Constitution as but ordinary cases of private outrage to be punished by prosecutions in the courts, or as insurrections, rebellions or domestic violence, to be put down by the civil authorities, aided by the militia; or, when these prove incompetent, by the General Government when appealed to by the State for aid, and matters appear to the General Government to have reached the extreme stage, requiring more force to sustain the civil tribunals of a State, or requiring a declaration of war, and the exercise of all its extraordinary rights. Of these last, when applied to as here,

11 Art. I, Sec. 8.

12 Art. I, Sec. 10, Cl. 3.

and the danger has not been so imminent as to prevent an application the General Government is responsible for the consequences."

§ 731. Powers of Military Commander in Cases of Domestic Disorder.

It is to be observed before leaving this point that, so far as regards the acts that may be done by military and civil authorities in effectuating their purposes, the necessity for them being present, there is no difference between the commander's powers in a domestic insurrection and in a war. As the Supreme Court of Pennsylvania in a recent case13 has said: "In truth he has whatever powers may be needed for the accomplishment of the end, but his use of them is followed by different consequences. In war he is answerable only to his military superiors, but for acts done in domestic territory, even in the suppression of public disorder, he is accountable, after the exigency has passed, to the laws of the land, both by prosecution in the criminal courts and by civil action at the instance of the parties aggrieved."

14

A very recent case emphasizing the extent of the martial powers that may be exercised by the civil authorities of a State in times. of emergency is that of Moyer v. Peabody. Here an action was brought by the plaintiff in error against a former governor of a State, and other state officers for an imprisonment suffered under their order at a time when considerable disorder existed, and the country had been declared in a state of insurrection and the state troops had been called upon to assist the civil authorities in the maintenance of law and order. The Supreme Court in its opinion affirming the order of the court below dismissing the complaint affirm the right of the civil authorities to make arrests, not only for purposes of punishment but to prevent the exercise of hostile acts, and say: "So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and

13 Commonwealth of Pa. ex rel. Wadsworth v. Shortall, 206 Pa. St. 165. 14 212 U. S. 78; 29 Sup. Ct. Rep. 235; 53 L. ed. 410.

cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it may be that a case could be imagined in which the length of the imprisonment would raise a different question. But there is nothing in the duration of the plaintiff's detention or in the allegations of the complaint that would warrant submitting the judgment of the governor to revision by a jury. It is not alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after fears of the insurrection were at an end."

This language is too broad. In all cases it should be required that reasonable ground should be shown for believing the infringement of personal and property rights was demanded. The court. do, indeed, immediately add that "no doubt there are cases where the expert on the spot may be called upon to justify his conduct later in court, notwithstanding that he had sole command at the time and acted to the best of his knowledge. That is the position of the captain of a ship." But this, in turn, is followed by the statement that "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."

§ 732. Martial Law in Time of War.

Thus far the discussion has related to martial rule as exercisable in time of peace, that is, in times when, to be sure, civil disorder prevails, but when war-public war- does not exist. We have now to speak of martial rule when this latter condition is present.

It has already been learned that in war the enemy, be he a foreign one, or a rebel to whom the status of belligerent has been given, has no legal rights which those opposed to him must respect. 15

15 He has of course those rights which international law recognizes, but these are not of a constitutional, or, strictly speaking, of a legal nature. The