right to decide according to your own judgment what officer shall perform any particular duty, and as the supreme executive magistrate you have power of appointment. Congress could not, if it would, take away from the President, or in anywise diminish the authority conferred upon him by the Constitution." (9 Op. Atty. Gen. 462, 468, July 31, 1860. See also 5 Messages and Papers of the Presidents, 1789-1897, 599.)

The authority for ordering naval officers to any duties which they are required to perform is contained in the Constitution, Art. II, sec. 2, cl. 1, which provides that "the President shall be Commander in Chief of the Army and Navy of the United States," and in secs. 415, 417, and 420, R. S., which provide that the Secretary of the Navy shall be the head of the Department of the Navy, that he shall execute such orders as he shall receive from the President relative to all matters connected with the Naval Establishment, and that orders issued by the several bureaus of the Navy Department shall be considered as emanating from the Secretary of the Navy and shall have full force and effect as such. (File 28478-329, June 26, 1923.)

"Under the circumstances now existing the authority of the President to direct members of the Air Corps to instruct British students in the art of aviation would seem to fall directly within the President's power of Commander in Chief as traditionally exercised. Through the enactment of the Lend-Lease Act the Congress has explicitly enunciated the policy that the defense of certain countries now at war, including Great Britain, is vital to our own defense and that the furnishing of aid to such countries is essential to the security of the United States. *** The Congress having authorized, under the policy above stated, certain definite forms of very substantial aid to Britain, it would be anomalous indeed were the President, as Commander in Chief of the Army and Navy, without authority to direct certain of the forces under his command to aid in instructing those whose defense of their own country is deemed vital to the defense of the United States under present world conditions. I have no doubt of the President's lawful authority to utilize forces under his command to instruct others in matters of defense which are vital to the security of the United States. The broad power to utilize such forces for even more active national defense includes the less power here involved." (40 Op. Atty. Gen., No. 55, May 25, 1941.)

Making provision for bases and stations.- "One of these powers which the Constitution vests in the President is the power of the Commander in Chief of the Army and Navy of the United States, which is conferred upon the President by the Constitution but is not defined or limited. Happily, there has been little occasion in our history for the interpretation of the powers of the President as Commander in Chief of the Army and Navy. I do not find it necessary to rest upon that power alone to sustain the present proposal. But it will hardly be open to controversy that the vesting of such a function in the President also places upon him a responsibility to use all constitutional authority which he may possess to provide adequate bases and stations for the utilization of the naval and air weapons of the United States at their highest efficiency in our defense. It seems equally beyond doubt that present world conditions forbid him to risk any delay that is constitutionally avoidable." (39 Op. Atty. Gen. 484, 486, Aug. 27, 1940.)

Employment of secret agents. The President of the United States, as Commander in Chief of the armed forces of the United States. has authority to employ

secret agents to enter the lines of the enemy and obtain information respecting its strength, resources and movements. (Totten. Administrator v. United States, 92 U. S. 105, Oct. Term, 1875.)

Protection of national defense resources."Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution." (Hirabayashi v. United States, 320 U. S. 81, 92, June 21, 1943. See also: Toyosaburo Korematsu v. United States, 140 F.2d 289, Dec. 2, 1943; Ex parte Lincoln Seiichi Kanai, 46 F. Supp. 286, July 29, 1942.)

Administration of occupied territory. - "Although acquisitions made during war are not considered as permanent, until confirmed by treaty, yet, to every commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them." (Thirty Hogsheads of Sugar v. Boyle, 9 Cr. 191, 195, Feb. Term, 1815.)

"By the conquest and military occupation of the port of Castine, Me., the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegience to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for where there is no protection or allegience or sovereignty, there can be no claim to obedience." (United States v. Rice, 4 Wheat. 246, 253, Feb. Term, 1819.)

"The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. " (Johnson v. McIntosh, 8 Wheat. 543, 589, Feb. Term, 1823.)

"A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-inchief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge

the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. (Fleming et al. v. Page, 9 How. 603, 614-615, Jan. Term, 1850.)

"The power of the President under which Tampico and the State of Tamaulipas were conquered and held in subjection was simply that of a military commander prosecuting a war waged against a public enemy by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in possession in order to distress and harass the enemy. While it was occupied by our troops, they were in an enemy's country, and not in their own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force hic e is unable to resist. But the boundaries of the United States, as they existed when war was declared against Mexico, were not extended by the conquest; nor could they be regulated by the varying incidents of war, and be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign; nor did our laws extend over it." (Fleming et al. v. Page, supra, at 615-616.)

"All captures jure belli are for be benefit of the sovereign under whose authority they are made; and the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the general government is vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States. And neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations." (Jecker et al. v. Montgomery, 13 How. 498, 515, Dec. Term, 1851.)

"California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846.1 Shortly afterward the United States had military possession of all of Upper California. Early in 1847 the President, as constitutional commander-in-chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the, belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government, and of the army which had the conquest in possession. *** No one can doubt that these orders of the President, and the action of our army and navy commander in California, in conformity with them, was according to the law of arms and the right of conquest, or that they were operative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations. " (Cross et al. v. Harrison, 16 How.. 164, 189, Dec. Term, 1853. See also: 25 Op. Atty. Gen. 292, Dec. 17, 1904; 26 Op. Atty. Gen. 91, 98, Dec. 10, 1906.)

"The territory had been ceded as a conquest, and was to be preserved and governed, as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union, with only such limitations as are expressed in the section in which this power is given. The government, of which Colonel Mason was the executive, had its arigin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President. might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed. No presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government. And the more so as it was continued until the people of the territory met in convertion to form a State government, which was subsequently recognized by Congress under its power to admit new States into the Union." (Cross v. Harrison, supra, at 192193.)

"Upon the acquisition, in the year 1846, by the arms of the United States, of the Territory of New Mexico, the civil Government of this Territory having been over-thrown, the officer, General Kearney, holding possession for the United States, in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained, under the sanction and authority of the United States, a provisional or temporary Government for the acquired country. By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the Government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority should ordain. Amongst the consequences which would be necessarily incident to the change of sovereignty, would be the appointment or control of the agents by whom and the modes in which the Government of the occupant should be administered- this result being indispensable, in order to secure those objects for which such a Government is usually established." (Leitensdorfer v. Webb, 20 How. 176, 177, Dec. Term, 1857.)

"The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and, so long as the war continued, it can not be denied that he might institute temporary government in insurgent districts, occupied by the National forces, or take measures, in any State, for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws." (Texas V. White, 7 Wall. 700, 730, Dec. Term, 1868.)

"Although the city of New Orleans was conquered and taken possession of in a civil war waged on the part of the United States to put down an insurrection and restore the supremacy of the National government in the Confederate States, that government had the same power and rights in territory held by conquest as if the territory had belonged to a foreign country and had been subjugated in a foreign war. In such cases the conquering power has a right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe the revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war. These principles have the sanction of all publicists who have considered the subject." (New Orleans v. Steamship Company, 20 Wall. 387, 393-394, Oct. Term, 1874. See also Dooley v. United States, 182 U.S. 222, 231, May 27, 1901.)

"The doctrine of international law on the effect of military occupation of enemy's territory upon its former laws is well established. Though the late war was not between independent nations, but between different portions of the same nation, yet having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war, being a consequence of its acquisition; and the character and form of the government to be established depend entirely upon the laws of the conquering State or the orders of its military commander. By such occupation the political relations between the people of the hostile country and their former government or sovereign are for the time severed; but the municipal laws-- that is, the laws which regulate private rights, enforce contracts, punish crime, and regulate the transfer of property-- remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or superseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thus changed. In other words, the municipal laws of the State, and their administration, remain in full force so far as the inhabitants of the country are concerned, unless changed by the occupying belligerent.". (Coleman v. Tennessee, 97 U.S. 509, 517, Oct. Term, 1878.)

"Nor is the position of the invading belligerent affected, or his relation to the local tribunals changed, by his temporary occupation and domination of any portion of the enemy's country. As a necessary consequence of such occupation and domination, the political relations of its people to their former government are, for the time, severed. But for their protection and benefit, and the protection and benefit of others not in the military service, or, in other words, in order that the ordinary pursuits and business of society may not be unnecessarily deranged, the municipal laws--that is, such an affect private rights of persons and property, and provide for the punishment of crime--are generally allowed to continue in force, and to be administered by the ordinary tribunals as they were administered before the occupation. They are considered as continuing, unless suspended or superseded by the occupying belligerent." (Dow v. Johnson, 100 U.S. 158, 166, Oct. Term, 1879.)

"If private property there was taken by an officer or a soldier of the occupying army, acting in his military character, when, by the laws of war, or the proclamation of the commanding general, it should have been exempt from seizure, the owner could have complained to that commander, who might have ordered restitution, or sent the offending party before a military tribunal, as circumstances might have required, or he could have had recourse to the government for redress. But there could be no doubt of the right of the army to appropriate any property there, although belonging to private individuals, which was necessary for its support or convenient for its use. This was a belligerent right, which was not extinguished by the occupation of the country, although the necessity for its exercise was thereby lessened. However exempt from seizure on other grounds private property there may have been, it was always subject to be appropriated, when required by the necessities or convenience of the army, though the owner of property taken in such case may have had a just claim against the government for indemnity." (Dow v. Johnson, supra, at 167-168.)

"For many months prior to the treaty of peace with Spain, * * the military forces of the United States held and occupied the Island of Porto Rico by force of arms, as conquered territory, forming a military department, governed by military law, administered through military tribunals, according to the usages of war and the orders in force. It devolved upon the military commander the power to govern the inhabitants and to punish their crimes. But such occupation and jurisdiction were temporary, and ended with the restoration of peace and the cession of the island to the United States; making it a part of the domain of that country, and, under its constitution, subject to all the powers of the general government. Then, the war being ended, the jurisdiction of military tribunals over civilians would cease. Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281. The petitioner, Rafael Ortiz, was a civilian, a native of the Island of Porto Rico, and had never been in the land or naval service of the United States. While the state of war existed he might lawfully be tried by a military commission for offenses committed; but not after peace was established, and that country became a part of the United States." (Ex parte Ortiz, 100 F. 955, May 5, 1900.)

"According to the law of belligerent right, the will of the conqueror supplants the former political laws and powers which prevailed in the conquered territory, and the conqueror may make such new laws, rules, and regulations as he sees fit. *** Under this principle, it is lawful for the conqueror, in administering the conquered territory, to make such use of the property previously belonging to the former sovereign as he sees fit." (23 Op. Atty. Gen. 222, 226, Sept. 8, 1900.)

"While we see no reason to doubt the conclusion of the court that the port of Tampico during its occupation by the United States in the Mexican War was still a foreign port, it is not perceived why the fact that there was no act of Congress establishing a custom house there or authorizing the appointment of a collector, should have prevented the collector appointed by the military commander from granting the usual documents required to be issued to a vessel engaged in the coasting trade. A collector, though appointed by a military commander, may be presumed to have the ordinary power of a collector under an act of Congress, with authority to grant clearances to ports within the United States, though, of course, he would have no power to make a domestic port of what was in reality a foreign port." (De Lima v. Bidwell, 182 U.S. 1, 183-184, May 27, 1901.)

The opinion Cross v. Harrison, 16 How. 164, Dec. Term, 1853, which is quite a long one, establishes the three following propositions: (1) That under the war power the military governor of California was authorized to prescribe a scale of duties upon importations from foreign countries to San Francisco, and to collect the same through a collector appointed by himself, until the ratification of the treaty of peace. (2) That after such ratification duties were legally exacted under the tariff laws of the United States, which took effect immediately. (3) That the civil government established in California continued from the necessities of the case until Congress provided a territorial government." (De Lima v. Bidwell, supra, at 186.)

"There can be no doubt with respect to the first of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace. *** Upon the occupation of the ,country by the military forces of the United States, the authority of the Spanish Government was superseded, but the necessity for a revenue did not cease. The government must be carried on, and there was no one left to administer its functions but the military forces of the United States. Money is requisite for that purpose, and money could not be raised by order of the military commander. The most natural method was by the continuation of existing duties. In adopting this method, General Miles was fully justified by the laws of war." (Dooley v. United States, supra, at 230.)

"While his the military commander's power is necessarily despotic, this must be understood rather in an administrative than in a legislative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. *** His power to administer would be absolute, but his power to legislate would not be without certain restrictions--in other words, they would not extend beyond the necessities of the case. *** It was said that the courts established in Mexico during the war 'were nothing more than agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property, while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize,' although Congress, in the exercise of its general authority in relation to the national courts, would have power to validate their action." (Dooley v. United States, supra, at 234-235. See also: Raymond v. Thomas, 91 U.S. 712, 716, Oct. Term, 1875; 25 Op. Atty. Gen. 59, 61, Sept. 22, 1903.)

"An unlimited power on the part of the Commander-in-Chief to exact duties upon imports from the States might have placed Porto Rico in a most embarrassing situation. The ratification of the treaty and the cession of the island to us severed her connection with Spain, of which the island was no longer a colony, and with respect to which she had become a foreign country. The wall of the Spanish tariff was raised against her exports, the wall of the military tariff against her imports, from the mother country. She received no compensation from her new relations with the United States. * * * In our opinion the authority of the President as Commander-in-Chief to exact duties upon imports from the United States ceased with the ratification of the treaty of peace, and her right to the free entry of goods from the ports of the United States continued until Congress should constitutionally legislate upon the subject." (Dooley v. United States, supra, at 235-236.)

"By the ratifications of the treaty of peace, Porto Rico ceased to be subject to the crown of Spain and became subject to the legislative power of Congress. But the civil government of the United States cannot extend immediately and of its own force over conquered and ceded territory. Theoretically, Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but, practically, there always have been delays and always will be. Time is required for a study of the situation and for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as Commander-in-Chief." (Santiago v. Nogueras, 214 U.S. 260, 265, May 24, 1909.)

"When the Spanish fleet was destroyed at Manila, May 1, 1898, it became apparent that the Government of the United States might be required to take the necessary steps to make provision for the government and control of such part of the Philippines as might come into the military occupation of the forces of the United States. The right to thus occupy an enemy's country and temporarily provide for its government has been recognized by previous action of the executive authority and sanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its own authority and make rules and regulations for the conduct and duties to support the military authority and carry on operations incident to the occupation. Such was the course of the Government with respect to the territory acquired by conquest and afterwards ceded by the Mexican Government to the United States.". (MacLeod v. United States, 229 U.S. 416, 424-425, June 10, 1913. See also Ho Tung & Co. v. United States, 42 Ct. Cls. 213, 227-228, Feb. 25, 1907.)

"The possible extent of the field of the President's political executive power may be judged by the fact that the quasi-civil governments of Cuba, Porto Rico and the Philippines, in the silence of Congress, had to be carried on for several years solely under his direction as commander in chief." (Myers, Admx. v. United States, 272 U.S. 52, 134, Oct. 25, 1926. See also Porvenir v. United States, 70 Ct. Cls. 735, 739, Nov. 3, 1930.)

Martial law. "There are under the Constitution

three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot

be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.". (Ex parte Milligan, 4 Wall. 2, 141-142, Dec. Term, 1866.)

"Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed.". (United States v. Diekelman, 92 U.S. 520, 526, Oct. Term, 1875. Accord: In re Egan, 8 Fed. Cas. 367, No. 4303, June 22, 1866. See also 8 Op. Atty. Gen. 365, Feb. 3, 1857.)

"Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the Ex courts and deposes the civil administration.". parte Milligan, supra, at 127.)

"It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrow, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. ". (Ex parte Milligan, supra, at 127.)

"And, unquestionably, a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government restored to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one, who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection; and might order a house to be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable." (Luther v. Borden et al,, 7 How. 1, 45-46, Jan. Term, 1849.)

"It is an unbending rule of law, that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires." (Raymond v. Thomas, supra, at 716.)

"No doubt there are cases where the expert on the spot may be called upon to justify his conduct later in court, notwithstanding the fact that he had sole command at the time and acted to the best of his knowledge. That is the position of a captain of a ship. But even in that case great weight is given to his determination and the matter is to be judged on the facts as they appeared then and not merely in the light of the event. *** When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (Moyer v. Peabody, 212 U.S. 78, 85, Jan. 18, 1909.)

"Does the military power in the occupied territory, which is declared under martial law extend to the trial and punishment of offenders against regulations made by the military commander? Some cases are cited in support of the proposition that the military forces can do no more than to arrest and detain offenders against the laws of the state until they can be delivered to the civil authorities for trial, upon the restoration of peace and order. *** No doubt the commander may avail himself of the courts as a means of trial, but he may also institute tribunals during the emergency to deal with offenders in the district. *** This is especially true of offenses against the military regulations, such as these petitioners committed, acts which are not offenses against the laws of the state." (United States v. Fischer, 280 F. 208, 211, Feb. 27, 1922.)

Related powers of Congress. "Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions." (Ex parte Milligan, 4 Wall. 2, 139, Dec. Term, 1866.)

"Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power to make rules for the government and regulation of the land and naval forces; but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress can not in the disguise of rules for the government' of the Army impair the authority of the President as commander in chief." (Swaim v. United States, 28 Ct. Cls. 173, 221, Feb. 27, 1893, aff., 165 U.S. 553, Mar. 1, 1897. See also 27 Op. Atty. Gen. 259, Apr. 5, 1909.)

"So he the President, and he alone, is the supreme 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