there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues."

ILLUSTRATION.

§ 182. Constitutional interpretations by common law. Mr. Justice Matthews, in Smith v. Alabama, says: "There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority. Moore v. United States 91 U. S. 270” (51).

§ 183. Martial law. "Inter arma silent leges" (52). Martial law is the military rule of the commander having actual occupancy and power, and during the existence of war (53).

Martial law displaces the civil law and places the territory embraced within the declaration of martial law un

51 Smith v. Alabama, 124 U. S. 478.

52 In the presence of war the law is silent.

58 Taylor's Private Int. Law, 596 et seq. U. S. v. Dickelman, 92 U. S.

der the rules of military government, which, in effect, amount to but little less than the arbitrary rules of the officers administering the government (54).

Instances of its application in the United States have arisen, and a careful investigation of the litigated and adjudicated cases which have grown out of the exercise of the power of declaring martial law shows the dangerous nature of its application; and it must be admitted that during the time of our recent civil war, citizens were subjected to a leprivation of their liberty and unwarranted injustice and outrage under the guise of martial law. This, however, only illustrates that there is a proper and improper use of all and any of the instruments of government (55).

§ 184. Military law. Military law differs essentially from martial law, with which the student is apt to confuse it. Military law consists of the rules and articles of war, statutory provisions and customs which govern those engaged in the military and naval service. It obtains equally in time of peace and time of war (56).

Courts-martial are held by virtue of military law, and,

54 U. S. v. Dickelman, supra.

55 Ex. parte Milligan, 4 Wall. 2-143. See also Luther v. Borden, 7 How. 1, and notes. Johnson v. Jones, 44 Ill. 142, is one of the most instructive cases upon this subject. In that case Johnson, a resident of a district not engaged in the rebellion, and which had not been declared to be subject to martial law, was arrested, transported from his home to various prisons, denied the right of trial or hearing, and given no means of communication with home or friends. Finally, after being released without arraignment or hearing, he vindicated his right in the civil courts of justice. The case is not widely known, but is extremely interesting and instructive on the subject of martial law.

56 Luther v. Borden, 7 How. 1 (Lawyers' Co-operative Ed.), and notes.

within their jurisdiction, the findings and judgments of such courts are a part of the law of the land, and are not subject to review in civil courts (57).

Such rules and regulations governing the army and the navy, and all the members and officers thereof, are a part of our jurisprudence, and as such a part of the law of the land (58).

§ 185. Ecclesiastical and canon-law (59). While the canon law is no part of American municipal law, it may be affirmed that in the same way that the customs of merchants were recognized and respected by the civil courts of England, so the customs and rules of the church will govern in matters purely spiritual (60), while as to civil matters and property rights growing out of membership of the church, the civil courts maintain jurisdiction to protect and preserve the rights of members (61).

These systems are not generally regarded as suitable to this country, and for that reason are not held to be a part of the common law adopted by the states (62).

57 Johnson v. Sayre, 158 U. S. 109.

58 Clossen v. Armes, 7 Appeal Cases D. C.; 53 Alb. Law Jour. 40. See Middleton v. Crofts, 2 Atk. 650.

60 Watson v. Jones, 3 Wall. 679.

61 Chase v. Cheney, 58 Ill. 509; 11 Am. Rep. 95; Note by Hon. Melville W. Fuller in 10 Am. Law Reg. 314.

62 Jones v. Jones, 90 Hun. 414; Burtes v. Burtes, Hopk. Ch. 557.