efforts to secure a judgment upon the validity of the extraordinary tribunals proved ineffectual till after the war had ended. Then, in 1866, in the case of Milligan, the Supreme Court held that the suspension of the privilege of the writ of habeas corpus did not itself establish martial law, but that the test of the existence of martial law was to be found in the condition of the courts. In this relation the court said: "Martial law can not arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction." Dunning, Essays on the Civil War and Reconstruction, 19, 20, 37, 38, 42, 43, 45-47. See Ex parte Milligan, 4 Wall. 2; Com. v. Shortall (1903), 206 Pa. 165. Without regard to the circumstance that the practice of the Government during the civil war was at variance with the rule afterwards laid down in Milligan's case, it is to be observed that the decision of the court constitutes simply a declaration of constitutional law in the United States, and is not to be regarded as prescribing the conditions under which, from the international point of view, martial law may be enforced in other countries. The right to suspend the writ of habeas corpus is one of municipal law to be declared to foreign governments by the President through the Department of State; and it is not competent for foreign governments to question the accuracy of such declarations. Mr. Seward, Sec. of State, to Lord Lyons, Brit. min., Oct. 14, 1861, MS. The following report of a debate in the British House of Lords is given in the Diplomatic Correspondence of 1862, published by the Government of the United States, as appended to the President's message. After inquiries by the Earl of Carnarvon, Earl Russell said: "I conclude that the noble earl has hardly read the papers which have been laid upon the table of the house by command of Her Majesty; for the noble earl would there have found a correspondence between Lord Lyons and Mr. Seward, and also between Her Majesty's Government and Lord Lyons on this subject. The noble earl, in his statement, seems hardly to have taken into account the very critical circumstances in which the Government of the United States has been placed. In the spring of last year nine of the States in the scheme of confederation declared war against the Government of the United States. In such circumstances as these it is usual for all governments to imprison upon suspicion persons who they consider are taking part in the war against them. In a case which happened not many years ago, viz, 1848, when there was a conspiracy for the purpose of overturning the authority of Her Majesty, the secretary of state applied to the other house of Parliament for authority to arrest persons on suspicion, viz, for the suspension of the habeas corpus act, and in the papers Whether presented to Parliament at that date there are two cases in which the lord lieutenant of Ireland had ordered the arrest of two American persons; a complaint was thereupon made by the American Government, and my noble friend (Lord Palmerston), at that time at the head of the foreign office, replied that with regard to those persons the lord lieutenant had due information, upon which he relied, that those persons were engaged in practices tending to subvert the authority of the Crown, and were aiding practices which were being pursued in that part of the Kingdom. Those persons were never brought to trial, but on that authority they were arrested. After this civil war broke out in America complaints were made by certain British subjects that they had been arrested upon suspicion. I immediately directed Lord Lyons to complain of that act as an act enforced by the sole authority of the President of the United States, and especially in regard to one of those persons there seemed very light grounds for suspicion, and I said he ought not to be detained. I am not here to vindicate the acts of the American Government for one or for any of those cases. they had good grounds for suspicion, or whether they had light grounds for suspicion, it is not for me here to say. If I thought there were light grounds for suspicion, it was my business to represent that to the Government of the United States, but it is not my business to undertake their defense in this house. The American minister replied that the President had, by the Constitution, the right, in time of war or rebellion, to arrest persons upon suspicion, and to confine them in prison during his will and pleasure. This question has been much debated in America, and judges of high authority have declared that the writ of habeas corpus could not be suspended except by an act of Congress. But certain lawyers have written on both sides of the question; and I have recently received a pamphlet in which it is laid down that the meaning of the law of the United States is that the writ of habeas corpus can be suspended on the sole authority of the President of the United States. The question itself was brought before Congress, and a resolution was proposed that there should be no arbitrary arrests except with the sanction of Congress. But it was contended that it was part of the prerogative of the President; and a large majority decided that the question should not be discussed, and thereby left the President to act for himself. So much for the power given by the Constitution of the United States. With regard to the particular acts which the Secretary of State, under the sanction of the President, has authorized as to the arrest of British subjects, as well as American subjects, I am not here to defend those arrests, but I certainly do contend that it is an authority which must belong to some person in the Government, if they believe that persons are engaged in treasonable conspiracies, in the taking part as spies, or in furnishing arms against the Government. I believe that in regard to many of the cases of arbitrary authority that power was abused. I believe that, not only with regard to persons arrested, but in the course pursued, there was unnecessary suspicion, but I do not find that in any case there has been any refusal to allow British consuls at places where convenient to hear the cases of those persons, or when a statement was made by the British minister that Lord Lyons was slow in representing the case to Mr. Seward. Lord Lyons represented to me that these cases took up a very great part of his time, and he was anxious to investigate every one of them. Nor can I say that Mr. Seward has refused at any time to listen to those complaints. He has always stated that he had information upon which he could depend that these persons were engaged in treasonable practices against the Government of the United States. That being the question, the noble earl states, upon his own authority, that the arrests are illegal, and that the persons are kept in prison illegally. But that is more than I can venture to say. I can hardly venture to say that the President of the United States has not the power, supposing per sons are engaged in treasonable conspiracies against the authority of the Government, to keep them in prison without bringing them to trial, and it would require a strong denial of the authority of the law officers of the United States before I could presume to say that the President of the United States had not that power. With regard to the particular cases which the noble earl has referred to, I am unable to say whether or not some of those persons may not have been engaged in these conspiracies. We all know that during the time in which the United States have been divided there has been much sympathy shown in this country on one side and on the other-some have shown a strong sympathy for the North, and some for the South. (Hear, hear.) With regard to some of those cases, I have stated I thought the circumstances were such that it was quite evident that they had not been engaged in any conspiracy. There was one gentleman who happened to be a partner in a firm, and the other partners had great connections with the South. It was true that the firm had strong Southern sympathies, but the gentleman himself was a firm supporter of the Government of the Union. It was the mere circumstance of letters being sent to his partner which induced his arrest. I thought that a most arbitrary and unjust proceeding. (Hear.) Mr. Seward said he thought the circumstances were enough to induce suspicion, but that as soon as it was ascertained that there was no ground for that suspicion that gentleman was released. An innocent person being arrested and confined for several days in prison was undoubtedly a great grievance, and one for which he was entitled to compensation; but beyond the right to complain, and beyond the constant remonstrances of Lord Lyons, the British minister, in every such case, I do not hold that the circumstances warrant further interference. I believe the gentleman to whom I allude had stated that he expected his own friends would procure his release. The noble lord mentioned three cases. I was not aware of the cases the noble earl would mention. But with regard to Mr. Green, this is the statement he made on the 5th of September: 'I desire no action to be taken by my friends in England in consequence of my arrest. Lord Lyons has represented my case, and it will receive investigation in due time. Meanwhile I am in the hands of the officers of this fort.' There have been other cases of arrest and imprisonment under crcumstances involving considerable hardship. There have been many cases of arbitrary imprisonment without trial; and these cases of arbitrary imprisonment have taken place under a Government which is engaged in a civil war, perhaps one of the most serious and formidable in which any country was ever engaged. Right or wrong, it is not for us to decide; but we must admit that all the means that have been used by civilized nations in warfare against each other are open to the Americans in this case. With respect to the particular cases, I believe that to whatever cause it may be owing, whether owing to the novelty of the case in North America, or to the inexperience of persons who are not conversant with the carrying out of affairs, or whether it is this, that arbitrary power can never be safely intrusted to anyone without being abused, to whatever cause it is owing, I believe there will ever be many cases of abuse of such power. (Hear, hear.) But in every case where a British subject is arrested, and a reasonable case is made out for him, I shall be ready to instruct Lord Lyons to bring the case under the consideration of the Government of the United States. Lord Lyons has never been wanting in his duty. (Hear, hear.) He has, I think, shown himself a vigilant British minister in that respect; and I trust your lordships will not think that these cases have been neglected by the Government of this country. (Hear.) The EARL OF DERBY. "The statement made by my noble friend behind me, and borne out by the noble earl opposite, is one which cannot be listened to without H. Doc. 551-vol 2-13 feelings excited in the highest degree in consequence of the treatment to which British subjects have been subjected. I am willing to admit, with the noble earl, that every allowance should be made for the circumstances and the difficulties in which the Government of the United States is placed, and the position in which they stand with regard to the civil war in which they are engaged. But I must say that the course they have pursued with respect to British subjects in America, notwithstanding the remonstrances which have been, from time to time, presented to them by Lord Lyons in the performance of his duty, which he appears to have pursued with great prudence, is most trying to the patience of this nation. I think he was justified in using strong language with regard to the course which has been pursued. That course was anything but in accordance with the 'Civis Romanus sum' doctrine of the noble lord at the head of the Government. (Laughter.) The noble earl opposite has apparently derived some advantage and instruction from the correspondence in which he was engaged with Mr. Seward, because in an early stage of those proceedings he very properly invoked against those proceedings the protection of the American law. He said that that which the law sanctions with regard to American subjects we could not complan of when applied to British subjects; but the question is this: does the law sanction it? The answer was, that the Government did not consider themselves bound to take their view of American law from a British minister. Such was the substance of the courteous reply received by the noble earl. (Hear, hear.) There is one question which I must ask the noble earl to answer. It has already been asked by my noble friend behind me, but very conveniently the noble earl has not thought it necessary to reply to it. He states that the Congress has passed a resolution affirming the power of the President, under the Constitution, to suspend the habeas corpus. . EARL RUSSELL. With respect to the first point, what I stated, so far as I recollect, was this: That on a motion to the Congress with regard to the suspension of the habeas corpus by the President, the Congress, by passing to the order of the day, or laying the proposition on the table, or whatever their form is, voted by a small majority in favor of the proposition. I do not think we should complain if the President exercises that power, and the Congress does not interfere with it." (Dip. Cor. 1862, 28-31.) "In September, 1862, the British chargé d'affaires at Washington requested the discharge of one Francis Carroll, a British subject, who had been arrested by the military authorities in Baltimore. Mr. Seward refused the request, and in a note to Mr. Stuart said: 66 "Is the Government of the United States to be expected to put down treason in arms and yet leave persons at liberty who are capable of spreading sedition? . . . Certainly the Government could not expect to maintain itself if it allowed such mischievous license to American citizens. Can the case be different when the dangerous person is a foreigner living under the protection of this Government? I can conceive only one ground upon which his release can be ordered, and that is that he may be too unimportant and too passionate a person to be heeded in his railings against the Government. But you will bear in mind that the times are critical, and that sedition is easily moved now by evil-designing men who in times of peace might be despised. (Diplomatic Correspondence for 1862, p. 288.) "A correspondence ensued, which resulted in a proposal that— 666 'Mr. Carroll should be released from custody upon his agreeing to leave the United States immediately, and not return again during the continuance of this rebellion, and giving security to the approval of the United States marshal that he will keep said agreement.' (Diplomatic Correspondence for 1863, I. 406.) "This offer was accepted by the British chargé d'affaires and Mr. Carroll was discharged. "The President cannot assume that an exercise of national sovereignty which was performed by the United States when their security was assailed cannot be performed by other powers similarly situated, subject, of course, always to be questioned when the good faith of its exercise may be drawn in doubt. "But in the exercise of such an extreme right of sovereignty the comity of nations demands that the power exercising it should hold itself ready at all times to explain to the power on whose citizens it has been exercised the reasons which have compelled it. It cannot be doubted that Her Majesty's Government will observe the same spirit of courtesy in this respect that the Government of the United States displayed when the case was reversed." Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to England, April 25, 1882, For. Rel. 1882, 231–232. Though all persons within the territory where martial law prevails are subject to its operation, claims for damages have not been infrequently allowed where its application was irregular, arbitrary, or unnecessarily harsh. One hundred claims for damages for arrest and imprisonment, chiefly or wholly under martial law, were submitted to the claims commission under Article XIII. of the treaty between the United States and Great Britain of May 8, 1871. The total damages claimed in these cases amounted to nearly $10,000,000, or, with interest, to about $16,000,000. In 34 cases awards were made in favor of the claimants against the United States, amounting in all to $167,911. In 64 cases the claims were disallowed, while one was dismissed without prejudice for improper language in the memorial, and another was withdrawn by the agent of the British Government. Moore, Int. Arbitrations, IV. 3278-3311; Hale's Report, 61-87; Howard's Report, 69, 73, 550, 555, 560, 563, 569, 571. Various claims for imprisonment under martial law during the civil war in the United States were dealt with by the commissioners under the treaty between the United States and France of January 16, 1880. The subject was extensively discussed in the case of Dubos, who was imprisoned by General Butler at New Orleans. The commissioners unanimously concurred in the proposition that General |