and with it all pretext for martial law. Martial law cannot 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. . . .

courts are

actually

closed the necessity has arisen

It follows from what has been said on this subject, that there are when the occasions where martial rule can be properly 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 theater 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. It is also confined to the locality of actual war.

the opinion of the court

In commenting upon this opinion Professor Willoughby 1 very criticism of justly takes exception to the words "The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration." To forbid martial law where the courts may be open is too general a prohibition. Martial law may be necessary in order that the courts may remain open. It is true that the necessity for martial law must be actual, but this necessity cannot be determined by a general rule.

suspension of

habeas corpus

THE SUSPENSION OF THE WRIT OF HABEAS CORPUS Martial law need not necessarily involve actual armed conflicts. Purpose of the In fact almost as effective as the actual presence of military the writ of force is the power of the executive to arrest and detain those suspected of encouraging rebellion. To do this may require military force, but often such arrests may be made by civil officers. Under ordinary conditions the prisoner could by the writ of habeas corpus compel the authorities to show legal justification for his detention. If such be wanting he may be released at once. Such a proceeding might defeat or hamper the power

1 The Constitutional Law of the United States, Vol. II, p. 1251.

Congress, not the president, alone may suspend the

writ of

of the executive to quell the disturbance. Hence the first step in the exercise of martial law is to suspend the operation of this writ.

Before the Civil War it was held1 that this could only be accomplished by Congress, but, upon the advice of his AttorneyGeneral, Lincoln suspended this writ both within and without habeas corpus the actual area of hostilities. This drew from Taney, the Chief Justice, a protest 2 which perhaps was heeded, for Congress in 1863 passed an act authorizing such suspension. To-day it is generally agreed that this power is in the hands of Congress and not of the executive.

Effect of the suspension of the writ

It should be remembered that the suspension of the writ does not create new offenses nor vest the officers with new powers to arrest. It merely furnishes them with a legal and valid excuse for not complying with its summons. They are legally liable to prosecution for any illegal act, arrest, or imprisonment they have committed. This emphasizes again the distinction between war, with its military law, and a condition short of war called martial law. In war the executive cannot be made responsible to the court; in a condition where martial law is proclaimed his acts may be tested in those tribunals. Consequently, when the writ of habeas corpus is suspended it is usual to pass an act indemnifying the executive and his officers for any illegal acts they may have performed. Thus the very necessity of this act of indemnity is in itself a recognition of the distinction between war and martial law.

1 Ex parte Bollman, 4 Cranch, 75.

2 Ex parte Merryman, in J. B. Thayer, Cases on Constitutional Law, Vol. II, p. 2361.

CHAPTER XVIII

FINANCE

THE TAXING POWER 1

First among the legislative grants of Congress is the power The taxing to levy taxes. The Supreme Court says:

This power... is a high act of sovereignty, to be performed only by the Legislature upon considerations of policy, and necessity and public welfare. In the distribution of the powers of government in this country into three departments, the power of taxation falls to the legislative.2

power

granted by

So essential to the existence of a sovereign government is this Expressly power that it has been argued that the specific statement was the Constiunnecessary. But with the experience of the Confederation tution fresh in mind, the framers of the Constitution did not think it wise to leave to implication this power, the absence of which had proved one of the greatest defects in the Articles of Confederation. Thus, by express statement Congress is given the right to levy taxes, thereby again emphasizing the fact that the federal government is one of enumerated powers, and that apart from constitutional grants it possesses no inherent sovereignty.

It has sometimes been asserted that this clause contains two grants, (1) to levy taxes, and (2) to provide for the defense and general welfare of the United States. By thus interpreting the clause the federal government would cease to be one of limited enumerated powers and would be endowed with unlimited power to do anything for the general welfare of the United States. Such is not a proper reading of the clause. By the

1 The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States. . . . - The Constitution of the United States, Article I, Sect. viii, clause 1.

2 Meriwether v. Garrett, 102 U. S. 472, 515.

Correct interpretation of the grant

Fundamental limitations from the

definition of

a tax

Must be

levied for a public purpose

What is a public purpose?

correct interpretation, the words "to pay the debts and provide for the common defense and general welfare of the United States" limit the words "to lay and collect taxes." The true meaning of the clause is that Congress shall have power to lay taxes in order to pay the debts and in order to provide for the general welfare of the United States. "In this sense, Congress has not an unlimited power of taxation; but is limited to specific objects, the payment of public debts, and providing for the common defense and general welfare."

"1

In addition to these express limitations upon the purposes for which taxes may be levied, there is the fundamental limitation found in the very definition of a tax. It has been stated that taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes.2 This statement was cited with approval in Loan Association v. Topeka, where the court said:

To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less robbery because it is done with the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.'

It is far from easy to find decisions as to what constitutes a public interest which must be the object of federal taxation. The court has more frequently been called to pass upon the question arising out of state legislation. From these decisions it seems that the court would hold that a tax was not for a public purpose where the benefit to the public was merely incidental to private gain. Conversely, the court has upheld the constitutionality of laws levying taxes and making grants defrayed out of the treasury to private individuals where the public was [The tariff] directly benefited and the individuals incidentally. The protective tariff, for example, may be upheld on the ground that, although the manufacturer may be incidentally benefited, the

J. Story, Commentaries on the Constitution, Vol. I, Sect. 908.

2 T. M. Cooley, Constitutional Limitations (6th ed.), p. 479.

3 20 Wall. 655.

4 E. McClain, Constitutional Law, pp. 124 et seq.

government is but using its discretion in choosing what objects it may tax.1 Again, the protective tariff is justified as a regulation of commerce.

The constitutionality of federal bounties has never been [Bounties] clearly passed upon by the Supreme Court, but if sustained at all they would probably be upheld upon the grounds stated by the court in 1898:

Bounties granted by the government are never pure donations, but are allowed either in consideration of services rendered or to be rendered, objects of public interest to be maintained, production or manufacture to be stimulated, or moral obligations to be recognized.2

limitations

ence between taking prop

The Fifth Amendment adds specific limitations to the methods Specific which may be employed in federal taxation. "Nor shall private property be taken for public use without just compensation," and "no person shall be . . . deprived of . . . property, without due process of law." Although both these restrictions have been The differinvoked against certain taxes it is evident that one refers to the taking of private property under the right of eminent domain, for which compensation should be given; while the other is a general prohibition against the taking of private property by unlawful means. Against the taking of private property by taxation without giving a monetary compensation there is no prohibition. As Cooley says:

Where taxation takes money for public use, the tax payer receives, or is supposed to receive, his just compensation in the protection which the government affords to life, liberty, and property, in the public conveniences which it provides, and in the increase in the value of possessions which comes from the use to which the government applies the money raised by the tax; and those benefits amply support the individual burden.3

But although the taking of money by taxes without giving direct compensation is not depriving the individual of his

1 The right of Congress to tax within its delegated power being unrestrained, except as limited by the Constitution, it was within the authority conferred on Congress to select the objects on which an excise should be laid. — McCray v. United States, 195 U.S. 27, 61

2 Allen v. Smith, 173 U. S. 389, 402.

3 T. M. Cooley, Constitutional Limitations (6th ed.), p. 613.

erty by emi

nent domain

and by

taxation