Cited in Pedigo v. Grimes, 113 Ind. 150, 13 N. E. 701, collecting cases, and holding jury trial not permissible in contested election

cases.

Martial law. Under the act of February 28, 1795, providing for the calling out of militia in case of insurrection, power of deciding when the United States should interfere rests with the president, and he must decide which of the contending factions is the government. In the case of foreign nations and the several States, the government acknowledged by the president is always recognized in the courts, pp. 43, 45.

Cited in Ex parte Vallandigham, 28 Fed. Cas. 907, decision holding in time of civil war military power is supreme; in dissenting opinion, Corbin v. Marsh, 2, Duv. (Ky.) 232, majority holding act emancipating wives and children of slave volunteers unconstitutional.

Distinguished in Griffin v. Wilcox, 21 Ind. 382, collecting cases, and holding that where the civil power is not suspended, it excludes martial law.

Constitutional law.— Under the fourth section of article IV of the Constitution of the United States, a republican form of government is guaranteed to each State. A permanent military government would not be such, but in certain emergencies the general government may interfere in the domestic concerns of a State, and the decisions of the political department upon the necessity of such interference, is conclusive, pp. 42, 45.

Cited and followed in Texas v White, 7 Wall. 730, 19 L. 239, holding, while Texas was in secession, no suit could be maintained in her name; Antrim's Case, 1 Fed. Cas. 1064, decision on exemption from draft is not conclusive of the right of exemption; Powell v. Boon, 43 Ala. 474, holding Constitution and laws of Alabama were not destroyed by Rebellion. Principle cited with approval in Keith v. Clark, 97 U. S. 474, 24 L. 1078, in dissenting opinion, majority holding act declaring void issues of Bank of Tennessee during Rebellion unconstitutional; Koehler v. Hill, 60 Iowa, 689, 15 N. W. 651, dissenting opinion, majority holding court may inquire as to whether constitutional amendment is constitutionally adopted; Ex parte Vallandigham, 28 Fed. Cas. 907, in argument of counsel.

Distinguished, In re Kemp, 16 Wis. 376, holding presidential proclamation suspending writ of habeas corpus unconstitutional and void.

A State may use its military power to put down an armed insurrection too strong to be controlled by civil authority, and the State must determine what degree of force the crisis demands, p. 45.

Cited and followed in The Hiawatha, Blatchf. Pr. Cas. 12, 13, F. C. 6,451, holding no proclamation of war necessary to render lawful a

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blockade during Rebellion; The Parkhill, 18 Fed. Cas. 1189, holding no person within hostile territory can maintain a claim for restitution for naval prize; United States v. Johnson, 25 Fed. Cas. 1233, holding United States could properly exercise rights of prize and blockade during Civil War; Ex parte Coupland, 26 Tex. 432, holding constitutional act of Confederate Congress known as Conscript Law." See valuable note on right to establish martial law, 6 Am. Dec. 690, and 42 Am. Dec. 57. Cited, arguendo, in dissenting opinion, Hammett v. Philadelphia, 65 Pa. St. 179, majority holding assessment for local improvements not an exercise of right of eminent domain; dissenting opinion, Price v. Poynter, 1 Bush (Ky.), 396, majority holding capture of horses for use of Confederate army under military authority, lawful.

Distinguished in Ex parte Milligan, 4 Wall. 129, 18 L. 298, holding suspension, if right, of habeas corpus, does not affect rights of presumably loyal citizens; Griffin v. Wilcox, 21 Ind. 382, collecting cases, and holding where civil power is not suspended, it excludes the martial law; Beirne v. Brown, 4 W. Va. 79, distinguished in dissenting opinion, majority holding "Suitors' Test Oath Statute," after Civil War, constitutional. Criticised in dissenting opinion in Warwick, etc., Prize Cases, 2 Black, 697, 17 L. 486, majority holding a State of actual war may exist without formal declaration.

Discretionary powers Martial law. Whenever a statute gives discretionary powers to any person to be exercised by him upon his own opinion of certain facts, he is the sole judge of the facts; hence, officers engaged in the military service of a State where martial law has been declared, may lawfully arrest anyone whom they have reasonable grounds to believe engaged in insurrection, and to that end order a house forcibly entered and searched, when there are reasonable grounds for believing him to be there concealed, pp. 44, 45, 46.

Cited and followed in Taylor v. Kercheval, 82 Fed. 499, refusing to interfere in executive action where officer is given discretion; New York, etc., R. R. Appeal, 62 Conn. 540, 26 Atl. 126, holding statute giving discretionary powers not unconstitutional; Miles v. Bradford, 22 Md. 184, 85 Am. Dec. 644, refusing mandamus to compel the governor to exercise discretionary powers; Dreucker v. Salomon, 21 Wis. 630, 94 Am. Dec. 577, affirming judgment for defendant in suit against governor for alleged false imprisonment under "Draft Rules." On liability of soldiers for destroying property during war, see valuable note, 87 Am. Dec. 510. Cited, with approval, in Dow v. Johnson, 100 U. S. 170, 25 L. 637, in dissenting opinion, majority holding officer of United States army in enemy's country during Rebellion not liable to action for tort. Cases collected and discussed; principal case cited, arguendo, in Tyler v. Pomeroy, 8 Allen, 484, sustaining action against municipal authorities for arrest under volunteer enlistment before muster; Ex parte

Rodriguez, 39 Tex. 732, decision holding court may determine constitutionality of statute on habeas corpus.

Discretionary powers must not be used arbitrarily; hence, military officers of a State under martial law, must not use more force than is necessary, and if their power is used for purposes of oppression, or any injury is wilfully done to a person or property, the party by whom or by whose order it was committed, would be answerable, p. 46.

Cases collected and principle cited, arguendo, in Tyler v. Pomeroy, 8 Allen, 485, sustaining action against municipal authorities for arrest under volunteer enlistment, before muster.

Federal court is presumed to know the Constitution and law of the State where it sits, p. 46.

Supreme Court has the high power of passing judgment upon the acts of State sovereignties, and of the legislative and executive branches of the Federal government, p. 47.

Cited and cases collected in dissenting opinion, Dodge v. Woolsey, 18 How. 373, 15 L. 419, majority holding Supreme Court will determine whether acts of State legislatures are constitutional.

State sovereignty resides in the people of the State, and they may alter and change their form of government at their own pleasure, p. 47.

Cited and followed in Ridley v. Sherbrook, 3 Cold. 577, holding amendments to Constitution conferred on assembly power of prescribing qualifications of voters; State v. Cunningham, 81 Wis. 497, 51 N. W. 734, 15 L. R. A. 572, and n., collecting cases and holding in matter of publici juris petition by private citizen cannot in first instance be heard. Cited, not followed, in Shorter v. Cobb, 39 Ga. 300, holding a slave, or the hire of a slave, illegal consideration for a debt.

Distinguished in Koehler v. Hill, 60 Iowa, 609, 15 N. W. 612, holding courts may inquire whether constitutional mode is followed in adopting constitutional amendments; also, dissenting opinion, cited in dissenting opinion, Koehler v. Hill, 60 Iowa, 668, 15 N. W. 641. Certificate of division.- Whole cause may not be sent up on, p. 47.

Cited and followed in Jewell v. Knight, 123 U. S. 433, 31 L. 193, 8 S. Ct. 194, holding questions certified to Supreme Court must be on distinct questions of law; Bagg v. Detroit, 5 Mich. 69, collecting cases and holding circuit judges can reserve for opinion of Supreme Court questions of law only; Kelley, etc., Shoe Co. v. Insurance Co., 87 Tex. 114, 26 S. W. 1063, holding the very question of law to be decided must be certified, not whole of complicated case.

VOL. IV - 44

7 How. 89-132

Notes on U. S. Reports.

7 How. 89-132, 12 L. 618, WILKES v. DINSMAN.

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Evidence. In action of trespass by a marine claiming his term of enlistment had expired, against a naval commander, the defense being that, under the terms of enlistment and upon bounty paid, the period was extended for the cruise, a letter written by the defendant in relation to the bounty was admissible for the defense as a part of the res gestæ as well as because it was official correspondence, p. 123.

Res judicata.— Proceedings of a court-martial acquitting a naval commander are not conclusive as against a marine suing for damages for the acts on which the court-martial acted, the marine not having been the prosecutor before it, p. 123.

Cited and followed in Chamberlain v. Pierson, 87 Fed. 424, holding inadmissible record of conviction of wreckers in suit against railroad for damages; United States v. Cashiel, 1 Hughes, 558, F. C. 14,744, holding court-martial acquittal not a bar to indictment, even for same offense.

Evidence Marines.- Papers, including an order directing bounty to be paid and a contract of enlistment, held sufficient to show that a marine was within the provisions of an act governing the service of persons enlisted for the navy. Marines are in the navy, pp. 124, 127.

Cited and followed in United States v. Dunn, 120 U. S. 254, 30 L. 669, 7 S. Ct. 509, holding service in marine corps added to naval service in computing longevity pay; In re Bailey, 2 Sawy. 203, F. C. 728, holding word "armies" does not include marines; In re Doyle, 18 Fed. 370, holding restrictions of enlistment of minors apply only to army, not marines.

Estoppel.- A marine having enlisted and received bounty under the same conditions as seaman is estopped to deny either the validity of the enlistment or the liabilities to duty and punishment thereunder, p. 125.

Courts will not decide upon the expediency or humanity of a law, but merely its existence and application, p. 127.

Navy. If disobedience of a private in the navy is not scandalous conduct for which the commander is authorized to inflict twelve lashes, it exposes the offender to severe punishment by a courtmartial, and he cannot complain at being given the mitigated punishment; and the disobedience is an offense in the nautical service which may be punished according to the laws and customs of the sea, whether by imprisonment or otherwise, pp. 127, 128.

Separate offenses if distinctly repeated, even on the same day, incur separate punishments, hence it is not a continuing offense, where, after disobedience, there is explanation and exhortations to

3

duty, and time is given for reflection, followed by renewed disobedience, pp. 127, 128.

Appeal and error.- Where evidence is contradictory, the appellate court will not consider the action of the jury thereon, p. 129.

Public officers.-The acts of a public officer, on public matters within his jurisdiction, and where he has discretion, are to be presumed legal, till shown by others to be unjustifiable, pp. 129, 130, 131, 132.

Cited and followed, Townsend v. Jemison, 7 How. 720, 12 L. 886, presuming demurrer disposed of when record on appeal fails to show that fact; Dinsman v. Wilkes, 12 How. 401, 13 L. 1040, same case, holding decision of naval commander final on questions of detention and punishment; Gould v. Hammond, McAll. 238, F. C. 5,638, presuming acts of revenue collector without fraud, in absence of showing of corrupt motives; Fay v. Montgomery, 1 Curt. 272, F. C. 4,709, holding prize captor should send it for adjudication, but delay may be excusable; Smith v. Hammond, 22 Fed. Cas. 559, holding action would not lie against collector for mistaken refusal to register vessel; United States v. Clark, 31 Fed. 716, releasing on habeas corpus sergeant who fired upon and killed escaping prisoner; Whitcomb v. Spring Valley, etc., Co., 47 Fed. 655, presuming regularity of assignment of part of invention on which patent was issued; Donahoe v. Richards, 38 Me. 394, 397, 61 Am. Dec. 259, 262, holding parent of expelled child cannot maintain action against school committee therefor; Hickley v. Huse, 56 Me. 497, holding 'no warrant necessary for arrest of deserter from army; Wall v. Trumbull, 16 Mich. 235, holding supervisors cannot be held liable for error of judgment in allowing claims; Reed v. Conway, 20 Mo. 47, collecting cases and holding surveyor-general not liable to action for revoking commission of deputy surveyor; Schoetten v. Wilson, 48 Mo. 257, holding penitentiary warden not liable for torts of convict allowed to be at large; Waldron v. Berry, 51 N. H. 142, collecting cases and holding highway surveyor not liable for damages for ditch next to private property; State v. Chadwick, 10 Or. 471, holding condition of official bond performed when officer discharged his duty honestly and diligently; London v. Seaver, 32 Vt. 122, 76 Am. Dec. 161, holding, in suit for damages, schoolmaster should have benefit of doubt upon severity of punishment.

Distinguished in Tyler v. Pomeroy, 8 Allen, 484, collecting cases and sustaining action against municipal authorities for arrest, under authority to arrest soldiers, of mere volunteer before muster.

Miscellaneous. Cited in Board of Education v. Purse, 101 Ga. 446, 65 Am. St. Rep. 330, 28 S. E. 905, 41 L. R. A. 609, and n., but apparently erroneously.