ATIONS

That substantially the same rule, resting on the same considerations,
applies in the field of active military operations, was assumed by all
members of the Court in Ex parte Milligan.[1294] There the Court held
that the trial by a military commission of a civilian charged with acts
of disloyalty committed in a part of the country which was remote from
the theatre of military operations, and in which the civil courts were
open and functioning, was invalid under the Fifth and Sixth Amendments.
Although unanimous in holding that the military tribunal lacked
jurisdiction to try the case, the Court divided, five-to-four, as to the
grounds of the decision. The point on which the Justices differed was
which department of the Government had authority to say with finality
what regions lie within the theatre of military operation. Claiming this
as a function of the courts, the majority held that the theatre of war
did not embrace an area in which the civil courts were open and
functioning.[1295] The minority argued that this was a question to be
determined by Congress.[1296] All rejected the argument of the
government that the President's determination was conclusive in the
absence of restraining legislation. A similar result was reached in
Duncan _v._ Kahanamoku[1297] where, upon an examination of the
circumstances existing in Hawaii after Pearl Harbor, a divided Court
found that the authority which Congress had granted to the Territorial
Governor to declare martial law "in case of rebellion or invasion, or
imminent danger thereof," did not warrant the trial of civilians by
military tribunals.

ENEMY PROPERTY

The position of enemy property was dealt with by Chief Justice Marshall
in the early case of Brown _v._ United States.[1298] Here it was held
that the mere declaration of war by Congress does not effect a
confiscation of enemy property situated within the territorial
jurisdiction of the United States, but the right of Congress by further
enactment to subject such property to confiscation was asserted in the
most positive terms. Being an exercise of the war powers of the
Government, such confiscation is not affected by the restrictions of the
Fifth and Sixth Amendments. Since it has no relation to the personal
guilt of the owner, it is immaterial whether the property belongs to an
alien, a neutral, or even to a citizen of the United States. The whole
doctrine of confiscation is built upon the foundation that it