are not created, military government is not established, by a proclamation of martial law. All that has happened is that the civil authorities, being unable to enforce the laws with the ordinary civil officers, have summoned the military forces to assist them in enforcing not irresponsible military rule but the civil laws — not to wage war but to keep the peace. The extent to which force may be used and civil rights interfered with in order to keep the peace is a very delicate question. No fixed rules can be laid down, but each individual case must be justified on its merits, not at the time of the emergency but by a civil court at some later time. It is this possibility of subsequent judicial review and trial by the civil courts that most markedly distinguishes so-called martial law from military rule. In 1908, however, in the case of Moyer v. Peabody,1 the court, in an opinion by Justice Holmes, seemed to grant to officers discretionary rights not reviewable by the courts. After quoting the provisions of the constitution of Colorado which gave the governor the right to use the military forces of the state to suppress insurrections, he said: ... Holmes on martial law That means that he shall make the ordinary use of the soldiers Justice to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by the way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had no reasonable ground for his belief. . . . officer may be called upon to justify his conduct later, great weight is given to his determi No doubt there are cases where the expert on the spot may be called Although an upon to justify his conduct later in court, notwithstanding the fact 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, even in that case great weight is given to his determination, and the matter is to be judged on the facts as they appeared then, not merely in the light of the event.... 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. . . 1 212 U. S. 78, 84, 85, 86. nation of the facts Can martial law be applied outside the area of conflict? Opinion of the court that martial law could only be used in case of actual real invasion This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm. As no one would deny that there was immunity for ordering a company to fire upon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life under such circumstances as was consistent with the Fourteenth Amendment, we are of the opinion that the same is true authorizing by implication what was done in this case. THE USE OF MARTIAL LAW As has been said, when insurrection becomes widespread and serious, it may change its character and become war. When war begins, the rebel becomes an enemy liable not to civil or martial law but to the rules of war. The president or the executive then may exercise any or all of the powers of the commander in chief in time of war. But in time of civil war certain districts may remain loyal, exposed to the dangers of invasion or rebellion, but actually in a state of peace. Can military rule or martial law be applied by the president in such regions which lie outside the actual area of the conflict? Such was attempted in the Civil War, and in the case of Ex parte Milligan1 the court laid down the following principles: It will be borne in mind that this is not a question of the power to proclaim martial law, where war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander at the head of his army can impose on states in necessity and rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was threatened by invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded that invasion was at an end, 14 Wall. 2, 126, 127. 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. ... when the courts are actually necessity has It follows from what has been said on this subject, that there are occasions where martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible closed the to administer criminal justice according to law, then, on the theater of arisen 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. In commenting upon this opinion Professor Willoughby 1 very 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 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. criticism of the opinion of the court 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 444 THE GOVERNMENT OF THE UNITED STATES 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 inherént 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. |