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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,' 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 lawfully be taken possession of or destroyed, to prevent it from falling into the hands of the public enemy; and also

113 Howard's R. 115.

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.

$ 257. The restrictive clauses of the Constitution, which have thus been passed under a rapid review, were intended to oppose an effectual barrier against any encroachments by the • government upon the private rights of the citizen. Even the administration of justice in the ordinary procedure of the courts is made to lean strongly in favor of the accused. It has been thought better that the state should be unable to punish crimes in certain instances, than that the rulers should have the power through a perversion of judicial proceedings, to oppress and wrong the people. While we retain our love of civil liberty, while the blood of our Saxon ancestors yet runs in our veins, these safeguards will not be relaxed. They were wrested from the Crown by the people of England through generations of conflict. We inherited the benefits which our fathers had obtained; we shall not readily suffer them to be taken from us.

$ 258. But here a most important question presents itself. Do these restrictions apply with equal force, and under all circumstances, while the nation is operating by its military, rather than by its civil arm? Does a condition of internal war, and do the exigencies of military movements, ever discharge the government from the restraining effect of this Bill of Rights ? Must arrests of citizens not in the military service be made in all instances upon special warrants ? charges in all instances be preferred by grand juries ? trials had in all instances by petit juries ? Must due process of law be observed under all circumstances ? These are questions which, as all know, have attracted much attention during the past six years. I do not purpose to consider them here, and shall postpone any examination of the subject until those chapters are reached

which treat of the war powers of the government. It is sufficient now to refer to the late case of Ex parte Milligan, in which the Supreme Court of the United States expressed an opinion that partially covers these questions.



§ 259. I come now to consider the second class of limitations upon the government, namely, those which are implied from the general nature of the government itself, and the design of the instrument by which it was created.

It is conceded by all that the government of the United States is one of limited powers ; limited by the very nature and essence of its construction. It can wield only such attributes as are conferred upon it by the Constitution. Now the grants contained in the organic law are all expressed in the most general language; they do not descend to details ; they do not assume to point out the means and methods by which the various powers are to be made operative. To illustrate : Congress is authorized “to regulate commerce with foreign nations." Nothing is said as to the meaning of the words “regulate” and “commerce," or as to the extent to which the regulation may be carried. All this is left to construction, and, as we have seen, it must be a judicial construction which is to settle the import of this and all other grants of power.

$260. Two schools of interpretation have existed among the statesmen and polititians of the country. The one has taught that a strict and close construction is to be placed upon all the grants of power contained in the organic law, so as to limit the government to those acts and means which are absolutely necessary to give force and operation to the grant. The other has maintained that the instrument is to be construed liberally, so as to enable the government to adopt any means which would fairly and reasonably conduce to make the grant of power operative; and that among such means the government

1 4 Wallace's R. 2.

has an unrestricted choice, which cannot be limited by the judiciary. Those who have thus read the Constitution, assert that the powers of the government are full, complete, and absolute within the range of the subjects committed to its care ; that it may adopt whatever means it prefers which may tend to give effect to the general provisions of the fundamental law; that among such means the selection is entirely a matter of policy and expediency, and not of constitutional power. No other question has been so vigorously debated, so fiercely contested as this. It has been at the bottom of most of the differences which have separated political parties from the adoption of the Constitution unto the present day.

§ 261. Still it cannot be denied that the practice of the government has been in accordance with the latter more liberal theory of construction. The Supreme Court of the United States has uniformly affirmed this view with the greatest emphasis, and applied it to cases of the highest importance. The tribunals of most of the states have followed the lead of the national judiciary, although some of them have adopted the opposing theory, and enforced it with great earnestness. The history of their legislation, and the character of their legislative acts, show beyond a cavil or doubt that the same method of interpretation has guided Congress in the discharge of their duties.

§ 262. A brief reference to a few examples of legislation will serve to illustrate and confirm the latter statement. The Constitution gives to the government the power to regulate commerce. A strict construction would restrain this function to the passage of such statutes as were absolutely necessary to the regulation ; such as those relating to the registry and enrolment of vessels, the mutual rights and duties of owners, masters, and seamen, the government of ports and harbors, and the like. Yet, under this grant Congress has assumed to enact laws for the improvement of harbors, the construction of piers, the erection of an astronomical observatory, the conduct of a coast survey. It has invaded the common law by limiting the liability of carriers on the ocean and the great lakes; it has sent out expeditions to observe an eclipse, and to

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