States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States."

The oath to preserve, protect and defend the Constitution simply obliges the President to obey the Constitution himself, and to use the power which that instrument confers upon him, and none else, to cause others to obey it. Griffin v. Wilcox, 21 Ind. 370.

SECTION II.

1. The president shall be commander in chief (a) of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons (b) for offenses against the United States, except in cases of impeachment.

Military Power.

(a) The President may establish rules and regulations for the government of the army. The power to establish implies necessarily the power to modify or repeal or create anew. U. S. v. Eliason, 16 Pet. 291; U. S. v. Webster, 2 Ware, 46.

An instruction by the executive to a naval officer can not legalize an act which without it would have been a plain trespass. Little v. Barreme, 2 Cranch, 170.

The President has the authority during a war, to employ secret agents to enter the enemy's lines and obtain information respecting the strength, resources, and movements of the enemy, and contracts to compensate such agents are so far binding upon the Government, as to render it lawful for the President to direct payment of the amount stipulated out of the contingent fund under his control. Totten v. U. S. 92 U. S. 105.

If war is made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. The Prize Cases, 2 Black, 635.

The President is bound to meet a civil war in the shape in which it presents itself, without waiting for Congress to baptize it with a name. The Prize Cases, 2 Black, 635.

The President has the power jure belli to declare a blockade of a hostile port in a civil as well as in a foreign war. The Tropic Wind, 24 Law Rep. 144; The Prize Cases, 2 Black, 635.

Whether the President, in fulfilling his duties as commander in chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and the courts must be governed by the decisions and acts of the political department of the government. The Prize Cases, 2 Black, 635.

The power of the President, as commander in chief, though not defined by the Constitution, is limited by the laws and usages of nations. Of these laws and usages there is no principle better settled than that martial law is restricted to those places which are the theatre of war, and to their immediate vicinity. In re Nicholas Kemp, 16 Wis. 359; Ex parte Milligan, 4 Wall. 2.

The right of the President to temporarily govern localities through his military officers is derived solely from the fact that he is the commander in chief of the army, and is to see the laws executed, and he can exercise it to just the extent that a commanding general in the army of the United States could, and no farther. Where the laws are, or may be, executed without the interference of the President with the military force, he has no right thus to interfere. Griffin v. Wilcox, 21 Ind. 370.

The Constitution does not invest the President with power to arrest or imprison, or to authorize another to arrest or imprison, any person not subject to military law at any time or under any exigency, without some order, writ or precept or process of some civil court of competent jurisdiction. He can not extend martial law beyond the sphere of military operations. Jones v. Seward, 40 Barb. 563.

The right of a military officer to govern by martial law arises upon the fact of existing or immediately impending force, at a given place and time, against legal authority which the civil authority is incompetent to overcome, and it is exercised precisely on the principle on which self-defense justifies the use of force by individuals. Griffin v. Wilcox, 21 Ind. 370.

Martial law is the law of force, applied to govern persons and places where the civil law is expelled, and its officers rendered unable to execute it by forcible resistance. The right thus temporarily and locally to exercise martial law in case of necessity, is the war power of the President, and is all the war power that he possesses by virtue of which he can assume to govern, independently of the civil law. Griffin v. Wilcox, 21 Ind. 370.

The President has a right to govern through his military officers when and where the civil power of the United States is suspended by force. Where force prevails, martial law may be exercised. Griffin v. Wilcox, 21 Ind. 370; Ex parte Milligan, 4 Wall. 2.

The true test in cases of civil war is whether the civil authorities are able, by the ordinary legal process, to preserve order, punish offenders, and compel obedience to the laws. If they are, then the military commander has no jurisdiction. If, on the other hand, through the disloyalty of the civil magistrates, or the insurrectionary spirit of the people, the laws can not be enforced and order maintained, then martial law takes the place of civil law wherever there is a sufficient military force to execute it. In re Nicholas Kemp, 16 Wis. 359.

The precise limits of the jurisdiction of a military commander, in cases arising near the scene of strife, must be determined according to the circumstances of each case. In re Nicholas Kemp, 16 Wis. 359.

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. Ex parte Milligan, 4 Wall. 2.

In all parts of the country, where the courts are open and the civil power is not expelled by force, the Constitution and the laws rule, and no citizen not connected with the army can be punished by the military power of the United States, nor is he amenable to military orders. Griffin v. Wilcox, 21 Ind. 370; Skeen v. Monkeimer, 21 Ind. I; In re Nicholas Kemp, 16 Wis. 359; Ex parte Milligan, 4 Wall. 2; Johnson v. Jones, 44 Ill. 142.

As necessity creates martial law, so it limits its duration, for if this government is continued after the courts are reinstated, it is a gross usurpation of power. Ex parte Milligan, 4 Wall. 2.

After an insurrection has been suppressed, and a provisional government established, and a State Constitution adopted, a citizen can not be tried by a court martial for an alleged crime. Ex parte James Eagan, 5 Blatch. 319.

Martial law is allowed only in case of necessity, and this necessity must be shown affirmatively by the party assuming to exercise this extraordinary power over the life, liberty and property of a citizen. Ex parte James Eagan, 5 Blatch. 319.

The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expenses of the war. But this can be done only by the treaty making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of

war.

His duty and his power are purely military. As commander in chief he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass, conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of the Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by legislative authority. Fleming v. Page, 9 How. 603.

If the conquered territory is ceded by the treaty of peace, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer the relations of the inhabitants with each other do not undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired the territory. The same act which transfers their country transfers the allegiance of those who remain in it, and the law which may be denominated political is changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power. Am. Ins. Co. v. Canter, 1 Pet. 511; Leitensdorfer v. Webb, 20 How. 176.

The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined by a treaty of peace. Am. Ins. Co. v. Canter, 1 Pet. 511.

Although the former political relations of the inhabitants of a conquered territory are dissolved, their private relations to each other and their rights of property remain undisturbed, except so far as they are in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority may ordain. Among the consequences which are necessarily incident to a change of sovereignty is the appointment or control of the agents by whom and the modes in which the government of the occupant shall be administered. The ordinances of such provisional government displace and supersede every previous institution of the vanquished or deposed political power which is incompatible with them during the time that the territory is held by the United States as occupying conqueror. Leitensdorfer v. Webb, 20 How. 176.

The civil government established in the exercise of provisional rights over a conquered territory which is subsequently ceded to the Government by the treaty of peace, does not cease as a matter of course or as a necessary consequence of the restoration of peace. The President may dissolve

Congress may put an both is that it is meant

it by withdrawing the officers who administer it. end to it. The right inference from the inaction of to be continued until it is legislatively changed. Cross v. Harrison, 16 How. 164.

The President, as commander in chief, may exercise the belligerent rights of a conqueror, and form a civil government for conquered territory, which will continue to be operative until the ratification and exchange of a treaty of peace. Cross v. Harrison, 16 How. 164.

The ratification of a treaty of peace has no effect upon a civil government established in the exercise of belligerent rights over a conquered territory, until official information of the ratification is received by it. Cross v. Harrison, 16 How. 164.

If the conquered territory is retained by the conqueror, the ordinances of the provisional government do not terminate with the close of the war, nor are the former institutions thereby revived and re-established. The ordinances and institutions of the provisional government can only be revoked or modified by the United States either by direct legislation on the part of Congress, or by that of a territorial government in the exercise of powers delegated by Congress. Leitensdorfer v. Webb, 20 How. 176.

When a State government is overthrown by a rebellion against the United States, the President, on obtaining possession of the territory, may appoint a military governor. Rutledge v. Fogg, 3 Cold. 554; Texas v. White, 7 Wall. 700.

Wherever the territory which has been dominated by an insurgent power is occupied by the national forces, it is the duty of the National Government to provide, as far as possible, so long as the war continues, for the security of persons and property, and for the administration of justice. The duty of the National Government in this respect is no other than that which devolves upon the government of a regular belligerent occupying, during war, the territory of another belligerent. It is a military duty to be performed by the President as commander in chief. The Grapeshot, 9 Wall. 129.

A military governor may appoint a judge with authority to hold a court in his military district. Pennywit v. Eaton, 15 Wall. 382; Mechanics' Bank v. Union Bank, 22 Wall. 276.

A provisional governor may create courts for the administration of justice. Such tribunals are not State, but Federal courts, deriving their existence and all their powers from the Federal Government. Scott v. Billgerry, 40 Miss. 119.

The President, as commander in chief, may establish a provisional court in territory taken by the national forces from an insurgent power, to con