plated voting, his right to a secret ballot, afterward exercised, is not invaded at all. But where judges of election, when the ballot is received by them for deposit in the box, proceed first to open and inspect it, the violation of right is manifest, and the same law which gives an action for a mere nominal trespass on lands would doubtless give one here.

Exclusion from Office. One may be wronged in his right to hold office, if he possesses the necessary qualifications, and has been actually chosen to one. The qualifications must be prescribed by law; there is no such thing as a natural right to hold an office, any more than there is a natural right to vote.' But when a qualified person, chosen to an office, is [*299] excluded from it, there is a wrong both to the State and

to the individual; to the former, because it is thus deprived of its chosen officer, and to the latter, because he thus loses his office. If another has usurped the office, the suitable remedy to oust him is found in the proceeding by quo warranto or some analogous statutory process.' Meantime, until he is ousted, if he has color of office, and actually performs the functions without hindrance, he is officer de facto, and his acts, which concern the public and third persons, are upheld on grounds of public policy. But when the intruder is dispossessed, the money value of the

'The qualifications prescribed must of course be supported by some reason; they cannot be purely arbitrary, like the exclusion of members of a particular party. Baltimore v. State, 15 Md. 376, 476. See People v. Hurlbut, 24 Mich. 244.

23 Bl. Com. 362; High, Extraordinary Remedies, § 623 et seq.

Parker v. Lett, Ld. Raym. 658; Commonwealth v. McCombs,56 Penn. St. 436; Ray v. Murdock, 36 Miss. 692; State v. Carroll, 38 Conn. 449; Ez parte Strang, 21 Ohio, (N. s.) 610; Buckname. Ruggles, 15 Mass. 180; People v. Kane, 23 Wend, 414; Burke Elliott, 4 Ired. 355; Taylor . Skrine, 3 Brev. 516; McGregor v. Balch, 14 Vt. 428; Rice v. Common

wealth, 3 Bush, 14; Pritchett v. People, 6 Ill. 525; Jones v. Gibson, 1 N. H. 266; Cabot v. Given, 45 Me. 144; Auditors v. Benoit, 20 Mich. 176; McCormick v. Fitch, 14 Minn. 252; Leach o. Cassidy, 23 Ind, 449; State v. Tolan, 33 N. J. 195; Cary v. State, 76 Ala. 78; Johnson v. McGinly, 76 Me. 432; Gunn v. Tackett, 67 Geo. 725; Morton v. Lee, 28 Kan. 286; Golder v. Bressler, 105 Ill. 419; Ex parte Johnson, 15 Neb. 512; Carli v. Rhener, 27 Minn. 292; Bedford v. Rice, 58 N. H. 446; Yorty v. Paine, 62 Wis. 154; Campbell . Com., 96 Penn. St. 344; Adams v. Tator, 42 Hun, 384; Sheehan's Case, 122 Mass. 445; Com. v. Taber, 123 Mass. 253.

office is recognized, and the party entitled is allowed to recover his damages.'

Military Subordination. An important exemption is to be free from military control, except when it is exercised in strict conformity to law. In times of peace the military remains in strict subordination to the civil power, and in times of war also, except on the theater of warlike operations. An exception would be

made, in either peace or war, by the declaration of martial law.' Where, therefore, the civil law is not suspended, either by the actual presence of warlike operations, or by declaration of mar

tial law, whatever would be a wrong, if done by any [*300] other citizen, would be a wrong if done by a person in

the military service, whether officer or private, and would be punished in the same way.

Military officers have no general authority to seize property for the purposes of government, and their subordinates have no protection in obeying their orders in doing so. The seizures are trespasses. The necessities of the services are to be provided for by the civil law, and unless impressment be expressly allowed by

'Lightly. Clouston, 1 Taunt. 112; Allen v. McKeen, 1 Sum. 276; United States v. Addison, 6 Wall. 291; Glascock v. Lyons, 20 Ind. 1; People v. Miller, 24 Mich. 458; Howerton v. Tate, 70 N. C. 161; Sigur v. Crenshaw, 10 La. Ann. 297; Petit v. Rousseau, 15 La. Ann. 239; Dorsey v. Smyth, 28 Cal. 21. It seems that the damages should be the amount of the emoluments of the office. United States v. Addison, 6 Wall. 291; Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 Ind. 429; People v. Miller, 24 Mich. 458; Nichols v. McLean, 101 N. Y. 526; Kessel v. Zeiser, 102 Id. 114. See People v. Nolan, 101 Id. 539.

2 Ex parte Milligan, 4 Wall. 2; Milligan . Hovey, 3 Biss. 13; Commonwealth v. Small, 26 Penn. St 81. Charges made against his superior by a militia officer not in connection with the service, but in his capacity as editor are cognizable by a civil court.

People v. Townsend, 10 Abb. N. C. 169.

Luther . Borden, 7 How. 1. In time of war a default judgment was had in a court of a state in military occupancy against a general for the taking of property by his orders. In time of peace an action was brought on the judgment. Held, the court had no jurisdiction of the cause of action. Dow v. Johnson, 100 U.S. 158.

Riggs v. State, 3 Cold: 85.

Where an

5 Mitchell v. Harmony, 13 How. 1:5, 135; Terrill v. Rankin, 2 Bush, 453; Bryan v. Walker, 64 N.C. 141; Koonce v. Davis, 72 N. C. 218; Merritt Nashville, 5 Cold. 95. officer cannot defend dispossessing A. and putting B. in possession of property on the ground of military necessity, he may defend against A. by showing B.'s title to the property to be better than A.'s. Whalen . Sheridan, 17 Blatchf. 9.

law, what is taken must be paid for at the time, or its payment provided for.' There are exceptions to this rule, but they are of those cases only in which the necessities of the public service are urgent, and such as will not admit of delay; when the civil authority would be too late in providing the means required for the occasion. If property was seized without such emergency no title would pass, and the owner might reclaim it in whose hands soever he might find it. Impressment in emergencies, belongs to the commander of the army, or of the district or post. The right cannot be exercised by officers of straggling squads of

men.'

Courts martial, for the trial of military offenses, are strictly courts of inferior and limited jurisdiction, and to render their proceedings valid, and a protection to those acting under them, it must appear that they have kept within their jurisdiction. A citizen not in the military service, or lawfully summoned into it, is not amenable to court martial." But where such a court has proceeded within its jurisdiction, its action is as conclusive as the action of any court exercising its legitimate powers."

*Military tribunals cannot be established for the trial of [*301] offenses against the general laws, when the civil courts are in the undisturbed exercise of their powers.

Neither military nor civil law can take from the citizen the right to bear arms for the common defense. This is an inherited and traditionary right, guaranteed also by State and federal Constitutions. But it extends no further than to keep and bear those

Sellards v. Zomes, 5 Bush, 90; Wilson . Franklin, 63 N. C. 259; Hogue o. Penn, 3 Bush, 663.

*Farmer o. Lewis, 1 Bush, 66; Sellards v. Zomes, 5 Bush, 90; Merritt v. Nashville, 5 Cold. 95.

Reeves. Trigg, 7 Bush, 385. Lewis v. McGuire, 3 Bush, 202; Hogue . Penn, 3 Bush, 663.

Duffield . Smith, 3 Serg. & R. 590; Barrett v. Crane, 16 Vt. 246; Brooks . Adams, 11 Pick. 440; Brooks . Davis, 17 Pick. 148. Commonwealth v. Small, 26 Penn. St. 31. Smith v. Shaw, 12 Johns. 257; Merriman v. Bryant, 14 Conn. 200. See,

also, Mallory v. Merritt, 17 Conn. 178.

7 State v. Stevens, 2 McCord, 32; State v. Wakely, 2 N. & McC. 410; See State v. Davis, 4 N. J. 311; Mower v. Allen, 1 D. Chip. 381; Commonwealth v. Small, 26 Penn. St. 31; Keyes v U. S., 109 U. S. 336. Civil courts have no control over the trial of a soldier for desertion so long as the military courts are proceeding regularly within their jurisdiction. In re White, 17 Fed. Rep. 723; In re Davison, 21 Fed. Rep. 618.

Ex parte Milligan, 4 Wall. 2.

arms, which are suited and proper for the general defense of the community against invasion and oppression, and it does not include the carrying of such weapons as are specially suited for deadly individual encounters. Therefore, the State laws which forbid the carrying of such weapons concealed are no invasion of the rights of citizenship.

1

1 Andrews v. State, 3 Heisk. 165; 8. C. 1 Green, Cr. Rep. 466 and note; 8. C. 8 Am. Rep. 8, and note; Carroll

v. State, 28 Ark. 99; 8. C. 18 Am. Rep. 538; Fife v. State, 81 Ark. 455.

*CHAPTER X.

INVASION OF RIGHTS IN REAL PROPERTY.

[*302]

The ownership of lands is complete or partial; it is of present title or future title; it is several or joint. In this country most persons own their estate by absolute or fee simple title, corresponding to the old allodial titles, which were free from any feudal tenure. The characteristics are, that the owner has complete dominion, and may sell it as he would a chattel, and if he does not make a disposition of it to take effect in his life time, he may do so by testamentary conveyance, or leave it to pass to his heirs-at-law. His dominion is indeed subject to certain powers in the State, which pertain to sovereignty, and which consist in a right to appropriate it to the public use whenever it shall be found needful, and a right to regulate its enjoyment, so as to prevent needless or unreasonable interference with the rights of others. It is also, or may be, subject to certain easements and servitudes in favor of other parties, some of which are incident to ownership, while others, when they exist, arise from contract, express or implied.

In what follows, by real property is understood the thing itself; the land, and what pertains to it, and the right for the time being to possess and enjoy it. Particular estates in the land, some of which would be mere chattels real with the incidents of personal property, it does not often become important, when mere remedies are in question, to distinguish; the law looking to the right to present possession only, and defending that with its

lawful incidents.

The chief characteristic of ownership is this right to complete dominion. The line of a man's private domain, like the boundary line between nations, is not to be crossed without permission. In law this permission is called a license.