lone, he could not insure; or, having insured, could not recover his oss, either on account of his original character of a native Spaniard, r on account of the places to which or of the persons to whom the goods were destined, would be to convert the licence itself into an instrument of deception and fraud. The Crown, in licensing the end, mpliedly licensed all the ordinary legitimate means of attaining that nd. For adequate purposes of State policy and public advantage, he Crown, it must be presumed, has been induced in this instance to icence a description of trading with an enemy's country, which would otherwise be unquestionably illegal. Whatever commerce of his sort the Crown has thought fit to permit (which in respect of its ›rerogatives of peace and war the Crown is by its sole authority cometent to prohibit or permit), must be regarded by all the subjects of he realm, and by the Courts of law, when any question relative to it omes before them, as legal, with all the consequences of its being egal; one of which consequences is a right to contract with other ubjects of the country for the indemnity and protection of such property in the course of its conveyance to its licensed place or desination, through an enemy's country, and for the purpose (as it probably will be in most cases) of being there delivered to an alien nemy, as consignee or purchaser."

Trotter, p. 170.

Alciator v. Smith, 3 Campbell 244.-Lord Ellenborough said: The first licence is not granted by the King in virtue of the preogative royal, but by an officer of State under the provisions of a particular statute; therefore, when that statute expired, the licence of 1798 must have expired along with it. The licence granted 1st June, 1812, contains no recital of any permission to the plaintiff to reside here: and there is no evidence that Government knew of her being in this kingdom at the time when the action was commenced. How can the jury say, therefore, that she was then resident in this kingdom with the licence and permission of our lord the King?

Trotter, pp. 184, 185.

MARTIAL LAW.

Distinction between martial law and military law.

Martial law has often been confounded with military law, but the two are very different. Military law, with us, consists of the rules and articles of war," and other statutory provisions for the government of military persons, to which may be added the unwritten or common law of the " usage and custom of military service." It exists equally in peace and in war, and is as fixed and definite in its provisions as the admiralty, ecclesiastical, or any other branch of law, and is equally, with them, a part of the general law of the land. But, in the words of Chancellor Kent, "martial law is quite a distinct thing." It exists only in a time of war, and originates in military necessity. It derives no authority from the civil law, (using the term in its mere general sense,) nor assistance from the civil tribunals, for it overrules, suspends and replaces both. It is from its very nature, an arbitary power, and "extends to all the inhabitants (whether civil or military) of the district where it is in force." It has been used in all countries and by all governments, and it is as necessary to the sovereignty of a state as the power to declare and make war. The right to declare, apply and enforce martial law, is one of the sovereign powers, and resides in the governing authority of the state, and it depends upon the constitution of the state whether restrictions and rules are to be adopted for its application, or whether it is to be exercised according to the exigencies which call it into existence. But even when left unrestricted by constitutional or statutory law, like the power of a civil court to punish contempts, it must, be exercised with due moderation and justice; and, as "paramount necessity" alone can call it into existence, so must its exercise be limited to such times and places as this necessity may require; and, moreover, it must be governed by the rules of general public law, as applied to a state of war.

It, therefore, cannot be despotically or arbitrarily exercised, any more than any other belligerent right can be so exercised. (Cushing, Opinions of U. S. Att'ys. Genl., vol. 8, pp. 365, et seq.; Wolfus. Jus Gentium, § 863; Grotius, De Jur. Bel. ac Pac., lib. 2, cap. 8; Kluber. Droit des Gens, § 255; O'Brien, American Military Law, p. 28.) Halleck, pp. 373, 374.

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Laws of different countries.

The laws of different countries, with respect to the application and exercise of this power, are very different. In the jurisprudence of France, for example, three conditions of things are carefully defined and provided for: 1st, The state of peace, where all persons are governed by the civil or military authority, according to the class to which they belong, and the law applicable to the particular case; 2d, The state of war, where the law and authority governing depends upon the particular condition of the place and circumstances of the case, the civil authority sometimes acting in concert with, and sometimes in subordination to the military; and 3d, The state of siege, where the civil law is suspended for the time being, or, at least, is made subordinate to the military, and the place is put under martial law, or under the authority of the military power. This may result from the presence of a foreign enemy, or by reason of a domestic insurrection, and the rule applies to a district or country as well as to a fortress or city. A similar system is adopted in Spain, and in most of the countries of continental Europe. "The state of siege of the continental jurists," says Cushing, "is the proclamation of martial law of England and the United States, only we are without law on the subject, while in other countries it is regulated by known limitations." The English common law authorities, and commentators, generally confound martial with military law, and, consequently, throw very little light upon the subject considered as a domestic fact, and, in parliamentary debates, it has usually been discussed as a fact, rather than as forming any part of their system of jurisprudence. Nevertheless, there are numerous instances in which martial law has been declared and enforced in time of rebellion or insurrection, not only in India and British colonial possessions, but also in England and Ireland. It seems that no act of parliament is required to precede such declaration, although it is usually followed by an act of indemnity, when the disturbances which called it forth are at an end, in order to give constitutional existence to the fact of martial law. (Block, Dic. de 'l Admin. Francaise, passim.; Escriche, Dic. de Leg. y Jurisprudencia, passim.; Cushing, Opinions of U. S. Att'ys Genl., vol. 8, pp. 366, et seq.; Hale, Hist. Com. Law, p. 39; Stephen, Commentaries, vol. 2, p. 602; Hansard, Parl. Deb., N. S., vol. 11; third series, vol. 115; Grant v. Gould, 2 H. Blackstone, Rep., p. 98; Blackstone, Commentaries, vol. 1, p. 136; Bowyer, Universal Pub. Law, p. 424.)

Halleck, pp. 374, 375.

Laws of United States.

Martial law is not mentioned by name in the constitution or statutes of the United States, nor is there much light thrown upon the subject by the constitutions and laws of the several states of the union, or the decisions of our courts. It is true that the constitution recognizes the fact that there may be cases of rebellion and invasion, but it has made no general provision for the supposable or necessary incidents to such a condition of affairs. The only clause having direct relevancy to this subject, is the declaration that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion the public safety may require it." Now the suspension of the writ of habeas corpus is not, in itself, a declaration of martial law; it is simply an incident, although a very important incident to such a declaration. In other words, the incident is constitutionally provided for, while the substance, or general principle. is merely recognized, but in no other manner alluded to. Probably the framers of that instrument saw the difficulty of attempting to regulate, by any fixed rules, that which results from paramount necessity alone, and which from its very nature, is scarcely susceptible of minute regulation. Practically, in England and the United States. the essence of martial law, is the suspension of the privilege of the writ of habeas corpus,—that is, the withdrawal of a particular person, or a particular place or district of country from the authority of the civil tribunals. A mere declaration of martial law, no matter how much," in case of rebellion or invasion, the public necessity may require it," would be utterly useless unless accompanied by a suspension of the privilege of the writ of habeas corpus; for if the local civil authorities were permitted, in such a case, to enforce this writ, they might, and some probably would, render the military powerless to provide for "the public safety." Hence in the United States, the two,-martial law and the suspension of the writ,—although differing as the whole differs from a part, have been practically regarded as one and the same thing. The clause of the federal constitution which restricts the suspension of this writ to cases where "the public safety may require it," is contained in the first article of that instrument, and, hence, it has been inferred by some, that inasmuch as that article relates principally to the powers of congress, it was intended that congress alone should have power to suspend this writ. But this negation of power is general in its terms, and is found in the section of things denied, not only to congress, but to all other branches of the federal government, and to all the states. It is not a delegation of power, but a limitation,-a negative rather than a positive enunciation, of a power, the previous existence of which is recognized: and this negative reaches all the functionaries, legislative and executive, civil and military, not only of the federal government, but also

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of the state governments; that is to say, there can be no valid suspension of the writ of habeas corpus, "unless when, in the case of rebellion, or invasion, the public welfare may require it." There must be two coëxisting facts, in order to make it valid: 1st. The fact of "rebellion or invasion;" and 2d, The fact that "the public safety requires it." It is very evident, from their nature, that both of these facts may occur when congress is not in session, or, if in session, may occur in some remote part of the country-say in Oregon or California-where its action could not reach till long after the public exigencies had passed. In such a case how is "the public safety' to be provided for, if congress alone can suspend this writ? Again, these two facts may occur in a state where there is a rebellion against the state government, but not against any authority of the United States; may not the state government, in accordance with its own constitution, suspend this writ? It is so held. But, if it be true that the federal constitution confines this power to congress alone, how can it be exercised by a state? And if by a state, why not by the executive of the United States? "The executive power" of the government is vested in the President, and he is the "commander in chief 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," and it is his duty to resist an "invasion," and to suppress an "insurrection;" it would therefore, seem to properly devolve upon him, and upon those acting under his authority for the accomplishment of these objects, to enforce martial law, or to suspend the writ of habeas corpus, "in case the public safety may require it." If the previous action of congress be necessary, in each particular case, to render such suspension valid, it is evident that there can scarcely ever be a valid suspension of this writ, for "the public necessity" will almost always have passed before any legislative action can be had in the premises. It would, therefore, seem more consonant with the principles of legal interpretation, and with the nature of the case, to regard this clause in the constitution as a limitation of a general power existing in the government, rather than as conferring or delegating that power to any particular branch or functionary of that government, and, consequently, that this power does not belong exclusively to congress, but may also be exercised by the executive, subject always to his liability to impeachment by congress. It must be admitted, however, that commentators on the constitution have expressed the opinion that this power is vested in congress alone; but they seem to have assumed this construction, rather than to have fully considered and discussed the question in all its bearings. There has not been, so far as we are aware, any authoritative decision of the supreme court of the United States on the subject, for