person of property without due process of law, and from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States as to property.1 That is, in all the acts of a commonwealth, when dealing with the property of individuals through the exercise of the powers of taxation and of eminent domain and through the procedures of its courts, due process must be followed, and none of the property privileges and immunities of United States citizenship may be encroached upon at all. I have explained these terms and phrases under the division of personal immunities; and I have there also pointed out the means for vindicating all immunities guaranteed by the constitution of the United States against the possible attempts of the commonwealths to violate them. I will therefore not occupy space with repetition of the same in this connection.

6. Lastly, the commonwealths are of course inhibited from exercising their powers over individuals in regard to matters placed by the constitution under the exclusive control of the general government, such as the waging of offensive war, the making of treaties and alliances, the conducting of diplomatic relations, the regulation of commerce with foreign states and between the commonwealths, the fixing of the monetary system, the military system, the patent and copyright systems, and the system of naturalization. The individual is exempted by the constitution from the powers of the commonwealths in this entire domain of the exclusive jurisdiction of the central government, and may always call upon the United States judiciary to relieve him from injuries resulting from any attempts of the commonwealths to intrude upon this domain.

Such is the sphere, the content and the guaranty of civil liberty in our constitutional law. It must be confessed that

1 Constitution, Amendment XIV, sec. 1.

its boundaries are ragged and that its protection is, in many respects, incomplete, but it is the best which the world has yet devised, and it contains in it the principle and the process for a far more perfect development.

C. The Suspension of the Immunities.

In the foregoing pages I have endeavored to present the system of individual liberty, both as to content and sanction, as clearly and distinctly as the existing status permits. There is, however, another most important question to be considered before we can dismiss this great subject. It is the inquiry as to whether there is any contingency under which the central government may temporarily suspend the constitutional guaranties of individual liberty and rule absolutely; i.e. assume the whole power of the state, the sovereignty.

From the standpoint of political science we should be obliged to answer this inquiry in the affirmative. In time of war and public danger, when the life of the state is threatened, the government must have command of every element of power for its defense. This has been the experience of all states. I will not cite the example of the great Roman state, because the objection may be made that it is antiTeutonic. Neither will I rely wholly upon the experience of the Teutonic states, formed out of the amalgamation of Teutonic and Roman ideas, lest it may again be said that this element of their constitutions was drawn from a Roman source. I will take the pure Germanic state, as described by Cæsar.1 He tells us that in time of war a dux was chosen, and invested with power over life and death. Tacitus does not put it so strongly. He says the dukes led rather by their influence and example than by their power. However that may be, the fact is well established that, in time of war and migration, the ancient liberty-loving Germans followed the custom of suspending government by the assemblies of

1 De bello Gallico, VI, 23.

2 Germania, c. 7.

the freemen, and of living under the more or less complete dictatorship of the duke. From the earliest period of Germanic history to the formation of the constitution of the United States, the system of every Teutonic state has admitted the temporary dictatorship, when the necessities of war and public danger require its existence and activity. Does now the constitution of the United States contain any such provision? or were our forefathers able to invent any other means, less dangerous to individual liberty, for the preservation of the life of the state in periods of mortal peril?

The clauses of the constitution bearing upon this question are contained in sections 8 and 9, of Article I, and in section 2, of Article II. They read: "The Congress shall have power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States " (commonwealths), "when called into the actual service of the United States."

It is very evident that Congress has the power to ordain universal military duty in the United States, and provide for calling the entire population into the service of the United States, after which the entire population would be made subject to the rules and regulations governing the army and navy, which Congress may fashion at pleasure, without regard to the system of civil liberty. This would indeed be an extraordinary procedure, but its constitutionality could not

be doubted. The constitution places no limitation upon the power of the Congress in the construction and the government of the military system. The whole power of the state is certainly vested in the government upon this point.

But the question which we have propounded is a more difficult one than this. It is whether, in the absence of any acts of Congress bringing the whole population of the United States into its military service, there is any exigency under which the government may suspend the guaranties of civil liberty as to persons not within that service. This question has received both a practical and a judicial answer in our history, and the one contradicts in some respects the other. I will not go farther back in our experience than the great civil war, since the precedents set before that period are incomplete and indistinct. Neither will I, at this point, undertake to make any distinction between the different departments of the government in respect to the extraordinary powers of war. The question at this juncture is as to the powers of the whole government over against individual liberty.

1. The practical answer. On the 19th of April, 1861, the President of the United States issued a proclamation, declaring the ports of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas in a state of blockade.1 That is, the President declared that civil war existed. There is no question that the government of the United States may declare war or the existence of war. The only question is whether the Congress or the President is vested with the power, and, as I have said, that question is not at issue under this topic of our treatise.

On the 10th of May, 1861, the President of the United States issued a proclamation suspending the writ of habeas corpus in certain islands upon the coast of Florida.2 In his message of July 4, 1861, the President informed the

1 United States Statutes at Large, vol. 12, p. 1258.

2 Ibid. vol. 12, p. 1260.

Congress that he had authorized the commanding general to suspend the writ of habeas corpus, without limitation as to place. There is no question that the central government may suspend the writ of habeas corpus, when it deems the act necessary to the public safety. The only questions in regard to the subject are whether the Congress or the President is vested with this power, and whether the suspension introduces the reign of martial law, or simply authorizes detention without remedy. The first question is not at issue under this topic. I will simply say at this point that the Congress fully indemnified the President by the law of March 3, 1863, declaring the President authorized "to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof." 2

As to the second question, I will only say that the government, though inclined to interpret the suspension of the privilege of habeas corpus as the introduction of martial law, i.e. as the suspension of all the constitutional guaranties of individual liberty, rested also upon its power to make war and regulate the results thereof, in proclaiming the reign of martial law. The fact is, then, that the government did assert and exercise the power to introduce martial law throughout the whole United States, both upon the immediate theatre of the conflict, and at points territorially far removed from it.5

2. The judicial answer. This was finally reached, for the first time, after the close of the civil war, in the famous Milligan case. The Court decided, in the first place, that "the suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of

1 McPherson, History of the Rebellion, P. 126.

2 United States Statutes at Large, vol. 12, p. 755.

3 Ibid. vol. 12, p. 1260.

4 Dunning, Political Science Quarterly, vol. 1, no. 2, p. 187.

5 Ibid. p. 191.

U. S. Reports, 4 Wallace, 2.