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the majority decision in the Milligan case, the President could not authorize the establishment of military tribunals for the trial of civilians unless the criteria of closed courts established by the majority were satisfied.

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Not even the minority in the Milligan case suggested that the President alone could erect military commissions in localities where the courts were open. They said that it is within the power of Congress to determine in what states or districts such great and imminent danger exists as justifies the authorization of military tribunals for the trial of crimes *" (4 Wall. at page 140).

The minority insisted that Congress could constitutionally provide for the suspension of certain civil rights, notwithstanding the fact that the district in question was not the immediate battlefield, and that the courts of the locality were open. This is far from saying that the President or the Governor of Hawaii could exercise that power in the absence of Congressional authority and, as has been indicated, no such Congressional intention is disclosed by the language employed in section 67 of the Hawaiian Organic Act.

Justification for Absolute Martial Rule in Hawaii.-Whether such an exigency exists in Hawaii as justifies the restrictions placed on the civil courts and the trial of all crimes by military courts is at least open to serious question. There is, of course, no insurrection or hostile occupation of the islands. The civil authorities have not been deposed by an invader from without or rebellion from within. The morale and the loyalty of the civil population have been attested by numerous officials in public statements and affidavits. (Radio speech by Lt. Gen. Delos C. Emmons, December 21, 1941; Press Release, Headquarters Hawaiian Dept., December 27, 1941; 4th Interim Report of the Select Committee Investigating National Defense Migration, pp. 48-58, H. Rep. 2124, 77th Cong., 2d Sess. ; Statement of Asst. Sec'y of War, John J. McCloy, San Francisco News, April 3, 1942.) For aught that appears of public record the courts could and would have opened for business in their free and unobstructed scope on the Monday following the attack but for the order of the Military Governor.

Certainly, there is little reason to believe that there has existed since at least shortly after December 7 any physical forces obstructing the operation of the courts to compare with those existing in London and in other parts of England at various times in the last two years. Yet I am informed by Col. William Cattron Rigby of the Judge Advocate General's office, who has made a recent study of this question in England, that the civil courts of England have not been superseded in a single instance or to any degree by the military. In fact martial law in the present war has existed but rarely, and then only temporarily until order could be restored. In the light of the extent of the mobil

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ization of man power in the British Isles in the prosecution of the war, the fact that jury trials and power of subpoena have continued without interruption casts at least some doubt on the view that their continuance in Hawaii would interfere with the effective arming of the islands.

The doubt which the Milligan case and present British experience casts upon the justification for absolute martial rule in Hawaii finds further justification by reference to the historical precedents established by the President and the army in time of war.

During the Civil War martial law frequently prevailed along the military frontiers, and even in the interior of the two belligerent communities. Except in an occasional and rare instance the civil courts were never closed nor were their functions proscribed. Even in conquered territory, where military government prevailed, the proclamations often, though there was no necessity for it, because of the complete authority of the military, provided that the courts should continue to function. Fairman has said that "There is a certain Procrustrean simplicity in the view that martial rule negatives civil rule, and vice versa the experience of the Civil War shows that while this is logically plausible it is artificial" (The Law of Martial Rule, p. 98).

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Early in the war the comprehensive proclamation of the President of September 24, 1862, made "subject to martial law" not only insurgent enemies in the insurrectionary states but also "their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States."

By proclamation of the President of July 5, 1864, martial law was established in Kentucky, which was not one of the Confederate States. The reasons for the proclamation were set forth in the preamble, as follows:

Whereas many citizens of the State of Kentucky have joined the forces of the insurgents, and such insurgents have, on several occasions, entered the said State of Kentucky in large force, and, not without aid and comfort furnished by disaffected and disloyal citizens of the United States residing therein, have not only disturbed the public peace, but have overborne the civil authorities and made flagrant civil war, destroying property and life in various parts of that State; And whereas it has been made known to the President of the United States by the officers commanding the national armies, that combinations have been formed in the said State of Kentucky with a purpose of inciting rebel forces to renew the said operations of civil war within the said State, and thereby to embarrass the United States armies now operating in the said States of Virginia and Georgia, and even to endanger their safety:

In conclusion it was expressly stated that:

The martial law herein proclaimed, and the things in that respect herein ordered, will not be deemed or taken to interfere with the holding of lawful elections, or with the proceedings of the constitutional legislature of Kentucky, or with the administration of justice in the courts of law existing therein between citizens of the United States in suits or proceedings which do not affect the military operations or the constituted authorities of the government of the United States.

By an order of Maj. Gen. Fremont, commanding the Western Department, dated August 14, 1861, martial law was "declared and established in the city and county of St. Louis." The order appointed Major J. McKinstry Provost Marshal, and directed that "all orders and regulations issued by him should be respected and obeyed." That officer thereupon published a proclamation in which it was recited that the power conferred upon him would be exercised only in cases where the civil law was "found to be inadequate to the maintenance of the public peace and the public safety." In a subsequent order he prohibited the wearing of concealed weapons, and later the sale or giving away of any description of firearms without a special permit.

General Fremont was succeeded in command by Maj. Gen. Halleck in November, 1861, and by G. O. 34, Dept. of the Mo., of December 26, 1861, martial law was formally declared by the latter in the city of St. Louis, and "in and about all railroads in this State, in virtue of authority conferred by the President of the United States. * It is not intended by this declaration to interfere with the jurisdiction of any civil court which is loyal to the Government of the United States, and which will aid the military authorities in enforcing order and punishing crimes." A subsequent Gen. Order, No. 39 of 1862, reiterates that the previous declaration is not designed to affect the courts, which are to proceed as before in the exercise of their functions, or the operation of the ordinances or laws of the City or State. Later, however, the department commander was obliged to enforce more strictly the martial law status and to suspend in a measure the civil authority.

Upon the occupation by the Union forces of New Orleans in 1862, Maj. Gen. Butler, commanding Department of the Gulf, by proclamation of May 1, placed the city and its environs under martial law. In this proclamation it was declared, among other things, that—

All the rights of property, of whatever kind, will be held inviolate, subject only to the laws of the United States. All the inhabitants are enjoined to pursue their usual avocations. * ** * All disorders, disturbances of the peace, and crimes of an aggravated nature, interfering with the forces or laws of the United States, will be referred to a military court for trial and punishment. Other misdemeanors will be subject to the municipal authority, if it desires to act. Civil causes between party and party will be referred to the ordinary tribunals. * No publication of newspapers, pamphlets, or hand-bills,

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giving accounts of the movements of the soldiers of the United States within this department, reflecting in any way upon the United States, will be permitted, and all articles on war news, editorial comments, or correspondence making comments upon the movements of the armies of the United States, must be submitted to the examination of an officer who will be detailed for that purpose from these headquarters. All the requirements of martial law will be imposed so long as, in the judgment of the United States authorities, it may be necessary; and while it is desired by these authorities to exercise this government mildly, and after the usages of the past, it must not be supposed that it will not be rigorously and firmly administered as the occasion calls for it.

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By a proclamation of Maj. Gen. R. C. Shenck, as Commander of the Middle Department, dated Baltimore, June 30, 1863, martial law was declared in Baltimore and the western counties of Maryland, "as a military necessity" by reason of "the immediate presence of a rebel army within the Department and State." The proclamation further specifies as follows:

The General commanding gives assurance that this suspension of the civil government within the limits defined shall not extend beyond the necessities of the occasion. All the courts, tribunals and political functionaries of State, county and city authority, are to continue in the discharge of their duties as in times of peace; only in no way interfering with the exercise of the predominant power assumed and asserted by the military authority. All peaceful citizens are required to remain quietly at their homes and in pursuit of their ordinary avocations, except as they may be possibly subject to call for personal service, or other necessary requisitions, for military purposes or uses hereafter. All seditious language or mischievous practices tending to the encouragement of rebellion are especially prohibited, and will be promptly made the subject of observation and treatment. Traitorous and dangerous persons must expect to be dealt with as the public safety may seem to require. To save the country is paramount to all other considerations.

By G. O. 17, Dept. of Kansas, 1862, the Department Commander declared martial law throughout the State of Kansas, with a view to the suppression of "jayhawking". In G. O. 54 of the same Department, of 1864, a further proclamation was made of martial law within the State, in anticipation of invasion by the Confederate Army under General Price. The Order specifies that, as the status thus established is intended to continue only while danger of invasion is apprehended, the functions of the civil authorities will not be disturbed nor the proceedings or processes of the courts interrupted.

In an Order of the Department of the Ohio, of 1862, martial law was declared within Jefferson County, Kentucky (in which is the city of Louisville), for the reason as stated that the civil authorities were unable to afford the proper protection to persons or property. In a further Order of the same Department, of 1863, the commanding general, in view of the threatened advance of the forces under General Morgan, declared martial law in Cincinnati, Ohio, and the cities, on the opposite bank of the Ohio River, of Covington and Newport,

Kentucky. The Order required that all business be suspended, and that the citizens organize for the common defense, but did not suspend the functioning of the courts.

By an order of July 31, 1863, the Commander of the same department, with a view of securing to loyal citizens the free exercise of the right of suffrage at a general election, declared the State of Kentucky under martial law. It is expressly specified that "The civil authority, civil courts, and business, will not be suspended by this order. It is for the purpose only of protecting, if necessary, the rights of loyal citizens, and the freedom of election." (Winthrop, Military Law and Precedents, 2d ed., pp. 823–826.)

These constituted the principal proclamations of martial law by Union forces during the period of the Civil War. Apparently the only instance in which the civil courts were suspended was in the case of the conquered city of New Orleans, where military government was in effect, and where the courts actually were closed by the fact of the occupation of enemy territory by belligerent forces, not by virtue of a proclamation of martial law.

Conclusion. It is apparent that the extension of martial law in Hawaii is not conclusive of the necessity therefor. Moreover, such facts as are of public record tend to establish that the closing of civil courts to persons accused of crime is not legally justified. Approved:

HAROLD L. ICKES,

Secretary of the Interior.

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ANNA BARNES

Opinion, June 26, 1942

CLAIMS AGAINST UNITED STATES-PROPERTY DAMAGE FLOODING-FERAE NATUBAE— NEGLIGENCE AVAILABILITY OF APPROPRIATIONS.

The Government is not liable in case of damage to privately owned property resulting from flooding caused by a break in its irrigation canal where the cause of the damage is shown to have been the burrowing actions of ferae naturae, over which the Government has no control, and not the result of a direct nonnegligent act of an employee in the survey, construction, operation, or maintenance of irrigation works, for which recovery may be had under annual appropriation act provisions, or a negligent act, for which recovery may be had under the act of December 28, 1922 (42 Stat. 1066, 31 U. S. C. sec. 215).

GRAHAM, Assistant Solicitor:

Mrs. Anna Barnes, of Klamath Falls, Oregon, has filed a claim, originally stated in the amount of $1,500, but later reduced to $1,000, against the United States for compensation for damages to crops and

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