PRIVATE RIGHTS AND STATES' RIGHTS. 181 



occupied and governed without observance of the guarantees.'* 

 Within any territory of the United States the privilege of the writ 

 of habeas corpus may be suspended by Congress when in case of 

 rebelhon or invasion the pubHc safety may demand it. Though 

 such a suspension of the writ does not mean a suspension of the 

 other guarantees and a rule of martial law except in so far as 

 " necessity," due to public disturbance and an actual closure of the 

 courts, may demand, yet the practice of the Civil War indicates that 

 an actual rule of martial law may be established in territory not the 

 scene of immediate violence. ^^ In pursuance of war. Congress 

 may provide for the confiscation of property in enemy territory 

 (even though American territory in rebellion) ^^ or property 

 belonging to enemy persons wherever found^'^ without following 

 the guarantees of the Vth and Vlth Amendments. Such confisca- 

 tions are authorized under the power of Congress to make rules 

 concerning captures and not under its power of criminal legislation, 

 hence the guarantees for criminal trial do not apply. ^^ Under 

 military necessity executive authority alone will justify the confisca- 

 tion of property.'" Congress may also provide for the internment 

 and expulsion of alien enemies by administrative process.®" 



54Neeley z: Henkel, i8o U. S. log (igoi), Ford 7-. Surget, 97 U. S. 

 594- 



55 Ex parte Milligan, 4 Wall. 2, and dissent by Chase, C. J., which 

 Winthrop (Military Law, 2: 38) regards as the "sounder and more reason- 

 able " view. 



56 Miller V. U. S., 11 Wall. 268. 



57 Brown z: U. S., 8 Cranch no. See Trading with the Enemy Act, 

 Oct. 6, 191 7. Property of loyal citizens may be taken under necessity but 

 must be paid for as required by the Vth Amendment, U. S. z'. Russell, 13 

 Wall. 623 ; Willoughby, op. cit., p. 1243. 



58 Miller v. U. S., 11 Wall. 268. 



59 Mitchell V. Harmony, 13 Wall. 115. It has been held that the rights 

 of the President as commander-in-chief, though not limited by the Constitu- 

 tion, are limited by the international law of war and consequently confisca- 

 tion of property beyond those allowed by the law of war can only be 

 justified by act of Congress. P)rown ■:•. U. S.. 8 Cranch no, thus held that 

 enemy property on land was not subject to confiscation except by express act 

 of Congress. See also Lieber's Instructions for the Government of the 

 Armies in the Field, Gen. Order. 100, April 24, 1863, arts. 4, 11; and 

 Sutherland, op. cit., pp. 75, 77. Willoughby thinks the President may even 

 go beyond the law of war (op. cit., 1212) and, regarding the Emancipation 

 Proclamation of Jan. i, 1863, as a confiscation of enemy property on land. 



