the Korean and Gulf Wars, and the INTERNA-TIONAL COURT OF JUSTICE has adjudicated claims against democratic and totalitarian regimes alike, neither body exercises sovereignty over indivi
Trang 1prisoners to the belligerent for which they were fighting when captured
Although prisoners of war may be com-pelled to work while in captivity, they cannot be forced to contribute directly to the captor’s war effort, and they must receive pay for their work
on a scale commensurate with their rank
Prisoners are not permitted to harm their captors under the rules of war, but they may attempt to escape Prisoners of war are entitled
to full freedom of religion, andDISCRIMINATION
based on race, color, or ethnicity is prohibited
Given the breadth of these rights, prisoners of war often enjoy greater protection under the rules of war than they would under the domestic laws of their captor
In certain cases, being granted the status of prisoner of war can mean the difference between life and death Summary execution of prisoners is expressly proscribed, as are orders
to“take no prisoners” on the battlefield, which
is tantamount to an order for their execution
The rules of war place other limitations on the use of CAPITAL PUNISHMENT and affirmatively require captors to provide sick and wounded prisoners with medical care Violations of these rules, though not uncommon in the heat of battle, are deterred by the threat of REPRISAL Prisoner exchanges, which benefit both sides, also provide belligerents with incentive for reciprocal compliance with these rules
Soldiers and Civilians
The difference between soldier and civilian is another important distinction under the rules of war War is fought by trained soldiers armed with guns, tanks, and an assortment of other strategic weapons that they are authorized to use for tactical advantage, both offensive and defensive The object of war is to thoroughly defeat an enemy by destroying its armed forces, which may be accomplished in an infinite number of ways, including killing and attrition
It is anticipated that much blood will be shed during a war, regardless of its length
Civilians, by and large, are neither trained in combat nor armed, and they are not authorized
to kill except inSELF-DEFENSE However, civilians
do have families to feed, mortgages to pay, and jobs to perform, obligations that are not suspended during times of war Hence, the rules of war attempt to insulate civilians from many of the inconveniences, distractions, trage-dies, and horrors of war
War provides combatants with noIMMUNITY
from ordinary criminal laws against RAPE and plunder, even when such transgressions are committed pursuant to an order given by a superior Crimes committed against civilians because of their race, religion, and national origin, including GENOCIDE, are considered war crimes Like prisoners of war, civilians may not be punished for wrongs committed by their government or military forces, and they may not be held as hostages under any circumstances
Civilians may lose their protected status in certain circumstances When insurgents or guerrillas live among the civilian population, soldiers may take measures to ferret out the enemy, including the use of interrogations, searches, and curfews Although the individual liberty of civilians can be temporarily curtailed in such situations, it cannot be permanently eliminated Protracted internment of entire villages or groups of civilians is not allowed Civilian supporters who carry weapons or grenades forfeit their protected status, however, and may be detained as prisoners of war or saboteurs If soldiers seek to destroy an entire village that is known to be an enemy stronghold, civilians normally must be informed of the action ahead of time and permitted to evacuate Military practice differs as to whether children, older persons, and pregnant women should be allowed egress from a besieged area
At the same time, it is common practice to permit clergy and medical personnel ingress to besieged locales Once a besieged area has been overtaken, the military is considered an occu-pying power with the responsibility to adminis-ter the laws for the preservation of public order and public safety Supplies of food and hospital services must be ensured
Military Occupation
Although an occupying power may exercise dominion over a conquered nation and acquires actual authority to administer the law, complete sovereignty is not transferred until a treaty or other settlement has been reached An occupy-ing power is not bound by the constitution
or laws of the territory occupied, but it is prohibited from altering them except in cases
of military necessity Inhabitants owe no duty of
ALLEGIANCEto an occupying power during a state
ofMARTIAL LAW
458 RULES OF WAR
Trang 2Occupation is an important aim of warfare,
enabling a belligerent to exploit an enemy’s
resources and deny them to a foe The
occupying power may seize any governmental
property that is necessary for military
opera-tions but may not sell public land or buildings
Municipalities and institutions dedicated to
religion, charity, education, arts, and sciences
are exempt from seizure The status of public
officials, including members of the judiciary,
cannot be changed by the occupying power,
although officials can be removed for
miscon-duct or asked to retire Any system of public
education must be allowed to continue
Taxes may be collected from local residents,
but the basic tax structure should remain intact
The occupying power is not permitted to destroy
private property, except in cases of military
necessity, and must fairly compensate individuals
from whom it confiscates personal belongings
The occupying power may require private
residents to house its troops, but the troops must
honor familial rights, religious practices, and
other customs in the community In response to
MILITARY OCCUPATION, allies of the conquered
nation may freeze its assets or establish a naval
blockade around the occupied territory
Aerial Warfare
Protection of civilian populations is also a
primary concern of the rules governing aerial
warfare Indiscriminate bombing of undefended
cities or other areas densely inhabited by
civilians is considered a serious war crime
Aerial bombardment of private property that is
unrelated to military operations, such as private
homes, commercial establishments,
philan-thropic institutions, historical landmarks, and
educational facilities, is also forbidden Aerial
assaults on hospitals, public or private, are
banned as well
The incidental destruction of private
prop-erty during an aerial attack may not violate the
rules of war, however, if the attack is carried out
for military purposes These include the
inter-diction of military communication and
trans-portation, the enervation of military forces and
installations, and the destruction of factories
manufacturing arms or military supplies
None-theless, the bombing of such targets may be
illegal if it endangers high concentrations of
civilians, and the stated military objective is
unclear or unimportant
Rules regarding aerial warfare are frequently violated During World War II, both the Axis and the Allied powers engaged in bombing attacks that inflicted high casualties directly on civilian populations In the Battle of Britain, the German Luftwaffe bombed certain English cities
to weaken the residents’ will to resist Without discriminating between military and noncom-batant targets, the Allies bombed Dresden and Hamburg in Germany and Tokyo and Yoko-hama, and the United States dropped the atomic bomb on Hiroshima and Nagasaki in Japan, killing more than 100,000 Japanese civilians in the first ten seconds after the first blast Since World War II, improved fighter planes and anti-aircraft defenses have made surgical aerial assaults more difficult
Aircraft must be identified by external markings to allow belligerents to distinguish military from civilian aerial units Additionally, such markings allow neutral countries to identify their own aircraft and permit the peaceful entry of aerial medical units onto a battlefield Regardless of the nature of an aerial unit, belligerents are prohibited from firing on persons parachuting from a disabled aircraft, unless they are paratroopers engaged in an
ESPIONAGE mission Distinguishing paratroopers from other parachutists is left to the discretion
of individual pilots and gunners
Naval Warfare
The rules governing naval warfare also leave much discretion to the participants Although belligerent warships may attack and sink an enemy warship encountered on the high seas,
During WWII, rules regarding aerial warfare were violated
by both Axis and Allied forces For example, combatant and noncombatant targets in Dresden, Germany, were the target of Allied bombs
in 1946.
UPI/CORBIS-BETTMANN RULES OF WAR 459
Trang 3they may neither attack nor sink an enemy merchant ship unless it refuses to obey a signal
to stop and submit to inspection Conversely, belligerent merchant ships are not obliged to stop or submit to inspection but may attempt to escape or act in self-defense However, the line separating an act of self-defense from an offensive maneuver is subject to some debate
In 1916 a British merchant ship captain was court-martialed for ramming a German U-boat, despite the captain’s claim that his vessel was acting in self-defense
When an enemy warship has been captured,
it becomes the property of the captor and may
be sunk or brought into port If an enemy merchant ship is captured, it must be taken into port for ADJUDICATION regarding the ownership
of the vessel and its cargo pursuant to international law In either case the passengers and crew of a captured ship may not be harmed
Captured members of enemy naval forces are entitled to treatment as prisoners of war
Shipwrecked belligerents are also entitled to humane treatment under the rules of war and may not be abandoned or refused quarter
Many of the same rules governing surface warships have been applied to submarine warfare as well
Weapons
All military forces, land, air, and sea, are restricted as to the type of weapons and explosives they may employ Military forces may not use arms, projectiles, or other materials calculated to cause unnecessary suffering, such
as weapons that leave fragments of glass and plastic in the body The United Nations has condemned thermal NUCLEAR WEAPONS because
of their propensity to inflict unnecessary suffering and their inability to discriminate between combatants and noncombatants or military and nonmilitary targets
The use of poisons, poisoned weapons, and poisonous gases by any branch of the armed forces is flatly prohibited, as is the use of bacteriological materials and devices that spread disease However, U.S tacticians used incendi-ary weapons, such as napalm, and chemical herbicides, such as Agent Orange, when enemy forces concealed themselves in a jungle or forest Several countries have objected to the use of chemical and incendiary weapons even for such limited purposes
Neutral Countries
All military forces are similarly bound by the rules of war with regard to neutral countries By definition a neutral country is not a party to a military conflict between belligerent states Unless bound by a treaty, governments are not required to remain neutral in a war, but they are presumed to be neutral unless they manifest adherence to one side or the other by word or act Neutral countries must neither help nor harm a belligerent state nor allow a belligerent
to make use of their territory or resources for military purposes Instead, neutral states must assume a position of strict impartiality Neutral territory is considered anASYLUMfor prisoners of war, who become free upon reaching neutral ground Belligerent troops may enter neutral territory to avoid capture but may be rejected or disarmed by the host country Belligerent aircraft are not permitted to enter neutral airspace, and if they land, the host country may intern them Belligerent warships may be granted asylum when they are in distress
or in need of repairs If belligerents abuse this privilege, however, asylum may be revoked, and their forces may be ordered to leave
Lawful and Unlawful Wars
The only type of war recognized by the United Nations as lawful is one fought in self-defense The rules of warfare are not suspended, however,
or otherwise rendered inapplicable merely because the grounds for fighting a particular war are unlawful In an illegal war, both the aggressor and other belligerents must still comport their behavior with the international customs, practices, and conventions of war At the same time, some authority suggests that one belligerent may disregard certain rules of war in reprisal for its enemy’s disregard of the same rules Such reprisals have a tendency to spiral downward, however, with each act of retaliation straying further from the lawful norms of warfare
Enforcement
It is sometimes observed that the phrase rules
of war constitutes an oxymoron because the business of war is treacherous and chaotic, while rules and regulations seek to impose order and structure No permanent and impartial international body has been created to admin-ister the rules of war Although the United Nations has acted with multinational support in
460 RULES OF WAR
Trang 4the Korean and Gulf Wars, and the
INTERNA-TIONAL COURT OF JUSTICE has adjudicated claims
against democratic and totalitarian regimes
alike, neither body exercises sovereignty over
individual member states in any meaningful
sense, and powerful countries generally wield
more influence over these bodies than do
weaker countries
In most instances, it is left to the victorious
powers to enforce the rules of war Following
World War II, for example, the Allies
prose-cuted the Axis powers in Europe and the South
Pacific despite the claims of the vanquished that
such proceedings amounted to little more than
victor’s justice or revenge These claims were
not entirely hollow, in that the Allies had
committed a variety of war crimes themselves
During the course of the war, for example, the
United States interned more than 100,000
Americans of Japanese descent simply because
of their ancestry and dropped the atomic bomb
on two Japanese cities; the British bombed
civilian populations in Germany; and the
Russians massacred Polish soldiers in the Katyn
Forest
Thus, the current system of international
law remains imperfect Nonetheless,
interna-tional law attempts to embody the rudiments of
human decency, rudiments that are reflected by
the customs, practices, and rules of war
FURTHER READINGS
Green, L.C 1996 “Enforcement of the Law in International
and Non-international Conflicts ” Denver Journal of
International Law and Policy 24.
Howard, Michael, George J Andreopoulos, and Mark R.
Shulman, eds 1994 The Laws of War: Constraints on
Warfare in the Western World New Haven, Conn.: Yale
University Press.
Jochnick, Chris, and Roger Normand 1994 “The
Legitima-tion of Violence: A Critical History of the Laws of
War ” Harvard International Law Journal 35.
Linnan, David K 2008 Enemy Combatants, Terrorism, and
Armed Conflict Law: A Guide to the Issues Westport,
Conn.: Praeger Security International.
Mitchell, Dennis 1996 “All Is Not Fair in War: The Need
for a Permanent War Crimes Tribunal.” Drake Law
Review 44.
Reisman, W Michael, and Chris T Antoniou, eds 1994.
The Laws of War: A Comprehensive Collection of Primary
Documents on International Laws Governing Armed
Conflict New York: Vintage.
Taylor, Telford 1992 The Anatomy of the Nuremberg Trials.
Toronto: Little, Brown.
Walzer, Michael 1992 Just and Unjust Wars: A Moral
Argument with Historical Illustrations New York: Basic
Books.
CROSS REFERENCES Armed Services; Arms Control and Disarmament; Court-Martial; Habeas Corpus; Hirohito; Hitler, Adolf; Human Rights; Japanese American Evacuation Cases; Just War;
Korematsu v United States; Military Government; Military Law; Militia; Neutrality; Prize Law; Tokyo Trial; Uniform Code of Military Justice.
RULING
A judicial or administrative interpretation of a provision of a statute, order, regulation, or ordinance The judicial determination of matters before the court such as the admissibility of evidence or the granting of a motion, which is an application for an order The outcome of a court’s decision
During a ruling, a judges may also apply their legal interpretations to the facts of the case
For example, party X did or did not violate the law by doing A, B or C
RUN
To have legal validity in a prescribed territory; as
in, the writ (a court order) runs throughout the county To have applicability or legal effect during
a prescribed period of time; as in, the STATUTE OF LIMITATIONShas run against the claim To follow or accompany; to be attached to another thing in pursuing a prescribed course or direction; as in, the COVENANT (a written promise or restriction) runs with the land
RUNNING WITH THE LAND Passing with a transfer of the property A provision in a deed by which the person to whom the land is transferred agrees to maintain a fence is
an example of aCOVENANTthat runs with the land
ACOVENANT, a written promise or restriction
on the use of land, is said to run with the land when either the obligation to perform it or the right to take advantage of it passes to the one to whom the land is transferred
The important consequence of a covenant running with the land is that its burden or benefit will be imposed upon a subsequent owner of the property who never knowingly agreed to it Running covenants thereby achieve the transfer of duties and rights in a way not permitted by traditional contract law
CROSS REFERENCE Covenant.
RUNNING WITH THE LAND 461
Trang 5vRUSH, BENJAMIN Benjamin Rush, a physician, teacher and political activist, is best known for being a member of theCONTINENTAL CONGRESSand one of the signers of the Declaration of Independence
His controversial medical theories showed forward vision on some subjects, but remarkably unenlightened views on others His confidence in his own judgment led him to question the military strategy of GeneralGEORGE WASHINGTON Rush was born into a strongly religious family on December 24, 1745, in Byberry Township, near Philadelphia He was educated
at a private academy and then sent to the College of New Jersey (now Princeton Univer-sity) He graduated at age 14 in 1760 and then began the study of medicine After six years as a medical apprentice in Philadelphia, Rush fin-ished his education at the University of Edinburgh, in Scotland, where he received his medical degree in 1768 He undertook further training at a hospital in London, England and attended medical lectures in Paris, France, where he made the acquaintance of BENJAMIN FRANKLIN Returning to America in 1769, Rush became, at age 23, a chemistry professor at the medical school that was part of the College of Philadelphia (now the University of Pennsylva-nia) In 1770, he began a prolific writing career when he published the first American textbook
on chemistry He also began publishing essays
on topics relating to health as well as temper-ance, CAPITAL PUNISHMENT, andSLAVERY In 1774, Rush co-founded one of America’s first anti-slavery societies
Rush’s prodigious schedule as a physician, teacher, writer, and lecturer did not prevent him from also becoming an ardent political activist He published numerous tracts on
colonial rights and became a member of the provincial conference of Pennsylvania In 1776, Rush was elected to the Continental Congress, the body of delegates that met to create the political roadmap for the American colonies As
a strong advocate of the radical view that the colonies should control their own destinies, Rush was one of the signers of the Declaration
of Independence The proclamation, largely crafted by THOMAS JEFFERSON, was approved on July 4, 1776 In 1777 Rush was appointed
SURGEON GENERALof the Middle Department of the Continental Army He resigned the appoint-ment early in 1778 because he disagreed with the way the military hospitals were being run by his superior, who retained the support of General Washington In return, Rush publicly questioned Washington’s military judgment, giving brief support to a group who sought to replace Washington with another leader Rush later expressed regret over his opposition to Washington
Rush resumed his work as a physician, teacher, and lecturer In 1783 he helped to found Dickinson College in Carlisle, Pennsyl-vania, and became one of its trustees In 1786
he founded the Philadelphia Dispensary, a clinic that provided free medical services to poor people He advocated limitations on the use of alcohol and tobacco, encouraged the use of clinical research and instruction, and advanced proposals for the study of veterinary medicine Rush’s greatest accomplishments were in the area of mental health He worked for years with insane patients at the Pennsylvania Hospi-tal and sought humane treatment for them on the theory that insanity could be assuaged by medical treatment He also deduced that many mental disorders had physical causes
Benjamin Rush 1745–1813
◆
❖
1745 Born,
Bayberry
Township, Pa.
1768 Graduated from University
of Edinburgh (Scotland)
◆
1770 Published first American chemistry textbook
◆
1774 Cofounded one of America's first anti-slavery societies
◆
1776 Elected to Continential Congress; signed Declaration of Independence
◆
1783 Helped found Dickinson College (Pa.)
1786 Founded Philadelphia Dispensary, providing free medical service to poor people
1787 Member of Pennsylvania delegation that ratified U.S Constitution
1797–1813 Served as treasurer of U.S Mint
1813 Died, Philadelphia, Pa.
◆
1775–83 American Revolution
1789 U.S
Constitution ratified
IANTICIPATE THE
DAY WHEN TO
COMMANDRESPECT
IN THE REMOTEST
REGIONS IT WILL BE
SUFFICIENT TO SAY
IAM ANAMERICAN
—B ENJAMIN R USH
462 RUSH, BENJAMIN
Trang 6His significant contributions to the study of
mental illness and its causes led to Rush’s
appellation as the“Father of American
Psychia-try” While showing considerable
enlighten-ment on the topic of insanity, Rush espoused
support for methods of treating physical
ailments that were not only controversial, but
also often fatal Rush’s approach to pathology
was more theoretical than scientific He was a
proponent of bloodletting, purging, and other
treatments that usually weakened patients and
sometimes killed them
In 1787 Rush was a member of the
Pennsylvania delegation that ratified the U.S
Constitution Ten years later, in 1797, President
JOHN ADAMS appointed him as Treasurer of the
U.S Mint Rush retained the position until his
death in Philadelphia on April 19, 1813
FURTHER READINGS
Barton, David 1999 Benjamin Rush Aledo, TX: Wallbuilder
Press.
Brodsky, Alyn 2004 Benjamin Rush: Patriot and Physician.
New York: St Martin ’s Press.
Hawke, David Freeman 1971 Benjamin Rush: Revolutionary
Gadfly Indianapolis, IN: Bobbs-Merill.
King, Lester 1991 Transformations in American Medicine:
From Benjamin Rush to William Osler Baltimore, MD:
Johns Hopkins University Press.
vRUSH, RICHARD
Richard Rush served as U.S attorney general
from 1814 to 1817 Although he was recognized
as an able lawyer, Rush’s greatest contributions
came in the field of diplomacy He negotiated
treaties that demilitarized the Great Lakes and
set the northernmost boundaries between
the United States and Canada He also played
a part in the establishment of the Smithsonian Institution
Rush was born on August 29, 1780, in Philadelphia, Pennsylvania His father was Dr
BENJAMIN RUSH, a signer of the DECLARATION OF INDEPENDENCEand one of the towering intellec-tual figures of his day Rush entered Princeton University (then the College of New Jersey) in
1793 at the age of 13 and graduated in 1797, the youngest member of his class He went on to study law and was admitted to the Pennsylvania bar in 1800 In 1811 he became Pennsylvania attorney general but left that position when President JAMES MADISON appointed him comp-troller of the U.S Treasury
In 1814, after declining the office of secretary of the treasury, Rush was appointed attorney general under President Madison At age 34, he was the youngest attorney general in U.S history His major contribution was to edit the Laws of the United States (1815), a CODIFICA-TIONof all federal statutes enacted between 1789 and 1815 For a short time in 1817, Rush performed the duties of the SECRETARY OF STATE
and was instrumental in the drafting of the Rush-Bagot Treaty between the United States and Great Britain, which restricted the use of naval forces on the Great Lakes
Late in 1817 Rush resigned as attorney general to serve as the U.S minister to Britain
He remained in this position until 1825 While
in London he negotiated the 1818 agreement between the two countries that fixed the 49th parallel as the boundary between CANADA AND THE UNITED STATES, from the Lake of the Woods
in northern Minnesota to the Rocky Mountains
Rush also participated in discussions with
Richard Rush 1780–1859
1780 Born,
Philadelphia, Pa.
◆
1797 Graduated from the College of New Jersey (later Princeton University)
1811–14 Served as comptroller of the U.S Treasury under Madison
1847–49 Served
as minister to France under Polk
1775–83
American Revolution
1812–14 War of 1812
1861–65 U.S Civil War
1859 Died, Philadelphia, Pa.
1836–38 Served as advocate for the U.S in British courts regarding the Smithson bequest
1825–29 Served
as secretary of the treasury under Adams
1817–25 Served as U.S minister to Great Britain
1818 Negotiated treaty that fixed the boundary between the United States and Canada at the 49th parallel
1817 Served as secretary of state; helped draft the Rush-Bagot Treaty
1815 Finished editing Laws of the United States
1814–17 Served as U.S attorney general under Madison
1823 Monroe Doctrine declared the Western Hemisphere off limits to further European colonization
RUSH, RICHARD 463
Trang 7British foreign minister George Canning con-cerning South America These discussions led to the announcement of the MONROE DOCTRINE of
1823, which declared that the Western Hemi-sphere was closed to further European coloni-zation and that any European intervention would be regarded as a threat to the security
of the United States
President JOHN QUINCY ADAMS recalled Rush
in 1825 to serve as his secretary of the treasury
In 1828 Rush was Adams’s unsuccessful vice presidential running mate In the 1830s Rush published A Residence at the Court of London (1833) and returned to England, where he served as an official agent of the United States
In this capacity he received the bequest by which James Smithson founded the Smithsonian
Institution in Washington, D.C Rush became involved with the planning of the Smithsonian and served on itsBOARD OF REGENTS
In 1847 President JAMES POLK appointed Rush minister to France He served for two years before retiring from public service and devoting himself to his writing Rush died on July 30, 1859, in Philadelphia and was survived
by five of his ten children
FURTHER READING U.S Department of Justice 1985 Attorneys General of the United States, 1789–1985 Washington, D.C.: U.S Government Printing Office.
vRUTLEDGE, JOHN Few justices of the U.S Supreme Court combined outstanding achievement with mis-hap and tragedy to the extent of John Rutledge Rutledge’s career spanned three decades of public service during the early years of the nation From 1761 until the 1780s, he enjoyed success as a lawyer, politician, Revolutionary War leader, and judge in South Carolina His prominence at the Constitutional Convention— and his role in opposing British rule—brought him national fame and made him a favorite of President GEORGE WASHINGTON Washington appointed him to the Supreme Court twice, first in 1789 and again in 1795
Born in September 1739 to a prominent family in Charleston, South Carolina, Rutledge was groomed for success His wealthy physician father died when he was eleven, and thereafter his uncle, Andrew Rutledge, guided Rutledge’s education Andrew Rutledge, a lawyer and speaker of the South Carolina Commons House
of Assembly, saw to it that his nephew was
John Rutledge.
LIBRARY OF CONGRESS
John Rutledge 1739–1800
1739 Born, Charleston, S.C.
1765 Delegate, Stamp Act Congress
1761–1776 Member, S.C.
House of Commons 1774–76 Member, Continental Congress
1775–83 American Revolution
◆
1779–82 Served as governor
of South Carolina
1784–90 Served again in S.C House
1787 Signed U.S Constitution
Court; appointed chief justice of the S.C Supreme Court
1795 Nominated as chief justice of U.S Supreme Court; U.S Senate failed to confirm appointment
1800 Died, Charleston, S.C.
SO LONG AS WE
MAY HAVE AN
INDEPENDENT
JUDICIARY,THE
GREAT INTERESTS
OF THE PEOPLE WILL
BE SAFE
—J OHN R UTLEDGE
464 RUTLEDGE, JOHN
Trang 8prepared for a legal and political career: the
teenager was sent to England to study law at the
Middle Temple, one of theINNS OF COURT, and in
1760 he was admitted to the English bar At the
age of 21 Rutledge returned home, instantly
won a seat in the state assembly, and began a
successful legal practice Within a few years,
Rutledge and two other lawyers were handling
the affairs of South Carolina’s wealthiest
businessmen
Rutledge’s rise in politics was aided by his
involvement in the growing revolutionary
movement In 1765 he attended the emergency
conference held in New York City to discuss the
colonists’ anger at Britain’s imposition of the
STAMP TAX Rutledge wrote an official declaration
to the British House of Lords opposing the tax
When the Revolutionary War came, he led the
defense of South Carolina Rutledge’s
perfor-mance in the war cemented his growing national
reputation, and a string of successes followed
In 1775 Rutledge helped write the
constitu-tion for South Carolina, and a year later he was
elected president of its new state assembly He
was elected governor in 1779 From 1782 to
1784 he served in the U.S Congress under the
ARTICLES OF CONFEDERATION and then as chief
judge of a court of chancery in South Carolina
He was one of the authors of the U.S
Constitution at the Constitutional Convention
in Philadelphia in 1787
At the national level, President Washington
was Rutledge’s chief political sponsor He
offered Rutledge a federal judgeship and
appointment as minister to the Netherlands,
which he declined He accepted when
Washing-ton named him to the Supreme Court in 1789
(though not, as Rutledge had hoped, as its chief
justice) The Court heard no cases during its
first two years, but Rutledge traveled great
distances to fulfill his duties as a judge on the
southern circuit The position did not suit him,
however Bored and upset that he was merely an
associate justice, he quit the Court in 1791 and
returned to South Carolina, where he became
chief justice of the Court of COMMON PLEAS
By June 1795 Rutledge was ready to return
to the Supreme Court.JOHN JAY, the chief justice,
was resigning, and Rutledge wrote to
Washing-ton suggesting that he should have the position
The president agreed and promptly nominated
him Over the next six months, while awaiting
Senate approval of his nomination, Rutledge, as
acting chief justice, heard his only two cases and wrote his only opinion: Talbot v Jansen, 3 U.S
133, 1 L Ed 540 (1795), an unimportant decision concerning goods captured at sea
In the interim Rutledge undid his career At
a meeting in Charleston in July 1795, he spoke out wildly against Jay’s Treaty, a controversial postwar agreement between the United States and Britain The treaty was highly unpopular across the nation, but Rutledge went too far, denouncing it as “prostitution” and declaring that the president should die rather than sign it
Indeed, since the death of his wife in 1792, Rutledge had been depressed, and reports of insanity had begun to spread His supporters—
Washington among them—disbelieved the rumors, but Rutledge’s enemies seized on them and blocked his confirmation in the Senate in December 1795 Upon hearing the news, he jumped off a wharf into Charleston Bay
Although two passing slaves foiled his suicide attempt, Rutledge’s public career was over
Seldom seen again, he died five years later, on July 18, 1800
FURTHER READINGS Friedman, Leon, and Fred L Israel, eds 1995 The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions New York: Chelsea House.
Holt, Wythe 1999 “How a Founder Becomes Forgotten:
Chief Justice John Rutledge, Slavery, and the Jay Treaty ” The Journal of Southern Legal History 7 (annual): 5 –36.
vRUTLEDGE, WILEY BLOUNT, JR
A stalwart defender of civil liberties, Associate Justice Wiley B Rutledge Jr sat on the U.S
Supreme Court for six years during the transitional NEW DEAL era Rutledge was a distinguished law professor and dean who became a judge through his support of Presi-dent FRANKLIN D ROOSEVELT In 1939 Roosevelt named him to the U.S Court of Appeals for the District of Columbia, and four years later to the Supreme Court From 1943 until his death in
1949, Rutledge championed the rights of minorities and unpopular groups
Born in Cloverport, Kentucky, on July 20,
1894, Rutledge was the son of a fundamentalist Baptist minister His father, Wiley Sr., rode the backwaters of Kentucky preaching hellfire and brimstone, often with his son in tow By his teens, however, Rutledge had left for the University of Wisconsin where he immersed
PRECEDENT IS NOT ALL CONTROLLING IN LAW THERE MUST BE ROOM FOR GROWTH,
SINCE EVERY PRECEDENT HAS
AN ORIGIN
—W ILEY B LOUNT
R UTLEDGE J R
RUTLEDGE, WILEY BLOUNT, JR 465
Trang 9himself in debate, classical literature, and ancient languages, earning a B.A in 1914
In his twenties, tuberculosis and financial trouble forced Rutledge to postpone the LEGAL EDUCATION he desired Between 1915 and 1920
he supported himself and his wife, Annabel Person, by teaching high school in Indiana, New Mexico, and finally in Colorado, where he enrolled in a full-time law program at the state university By 1922 he had earned his law degree Rutledge immediately accepted a job with a Boulder firm but left practice two years later in order to embark on a 15-year long career as a law professor He taught at three universities, promoted modern teaching
methods, and ultimately served as dean at Washington University (1930–1935) and the Iowa College of Law (1935–1939) It was during these later years, while engaging in debate over local and national issues, that he developed a reputation as a champion of the underdog Rutledge was an ardent supporter of Presi-dent Roosevelt’s New Deal, a series of legislative reforms designed to pull the nation out of economic depression Yet the U.S Supreme Court struck down one after another of the president’s programs Roosevelt then announced his controversial plan to reorganize the federal judicial system—the so-called court-packing plan that would have filled even the Supreme Court with pro-Roosevelt justices Rutledge backed the plan, and in 1939 the president appointed him to the U.S Court of Appeals for the District of Columbia In 1943 Roosevelt appointed Rutledge to the Supreme Court During the case Kotteakos v United States
328 U.S 750, 66 S.Ct 1239, Rutledge made a comment that became a quote he was known for: “Our Government is not one of mere convenience or efficiency It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials About them we dare not become careless or complacent when that fashion has become rampant over the earth.”
Rutledge consistently upheld the rights of the individual, including the rights to a jury trial, to practice religion freely, to be free from unreasonableSEARCHES AND SEIZURES, and not to suffer CRUEL AND UNUSUAL PUNISHMENT In his concurring opinion in Schneiderman v United
Wiley B Rutledge Jr.
CORBIS.
Wiley Blount Rutledge Jr 1894–1949
1949 Died, York, Maine
1946 Wrote dissent
in Yamashita v Styer
1894 Born,
Cloverport, Ky.
1943–49 Served as associate justice of the Supreme Court
1939–45 World War II
1914 Earned B.A from University of Wisc.
1914–18 World War I
1922 Earned LL.B from University of Colorado
1930–35 Served as dean of Washington University Law School (St Louis)
1937 Supported Roosevelt's court packing plan
1935–39 Served as dean of Iowa College of Law 1939–43 Served on the U.S Court of Appeals for the District of Columbia
1942 Wrote opinion in Wood v United States
466 RUTLEDGE, WILEY BLOUNT, JR.
Trang 10States, 320 U.S 118, 63 S Ct 1333, 87 L Ed.
1796 (1943), he voted to restore citizenship to
an immigrant who, 12 years after his
NATURALI-ZATION, had been targeted for DEPORTATION by
the JUSTICE DEPARTMENTbecause of membership
in the Communist Party In Yamashita v Styer,
327 U.S 1, 66 S Ct 340, 90 L Ed 499 (1946),
Rutledge dissented from the denial of HABEAS
CORPUS relief to Japanese general Yamashita
Tomoyuki, who had been sentenced to death
forWAR CRIMESon the basis ofHEARSAYevidence
Rutledge regularly joined the opinions of
Justices HUGO L BLACK, FRANK MURPHY, and
WILLIAM O DOUGLAS He worked exhaustively,
and, in the opinion of some of his brethren on
the Court, too much He died on September 10,
1949, in York, Maine, at the age of 54
FURTHER READING
Friedman, Leon, and Fred L Israel, eds 1969 The Justices of
the United States Supreme Court, 1789–1969: Their Lives
and Major Opinions New York: Chelsea House.
RYLANDS V FLETCHER
Rylands v Fletcher (L.R 3 H.L 330) was the
1868 English case that was the progenitor of the
doctrine of STRICT LIABILITY for abnormally
dangerous conditions and activities
The defendants, mill owners in the coal
mining area of Lancashire, England, had
con-structed a reservoir on their land The water
broke through the filled-in shaft of an abandoned
coal mine and flooded connecting passageways
into the plaintiff’s active mine nearby In 1865
the trial court found that the defendants had
been ignorant of the abandoned mine shaft and
free of negligence and decided the case in favor of
the defendants
In 1866, on appeal by the plaintiffs, the
Exchequer Chamber decided to reverse the
lower court and imposed strict liability on
the defendants, but the case did not readily fit
within the existing tort theories No TRESPASS
had occurred, because the premises of PLAINTIFF
and defendants did not adjoin; therefore, the
flooding was not direct, nor was it a nuisance, as
there was nothing offensive to the senses and
the damage was not continuous or recurring
Justice Colin Blackburn, comparing the
situa-tion to trespasses involving cattle and dangerous
animals, declared: “The true RULE OF LAW is,
that the person who for his own purposes
brings on his lands and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is PRIMA FACIE answerable for all the damage which is the natural consequence
of its escape.” This language, frequently quoted,
is often erroneously regarded as the rule of the case
In 1868 the defendants appealed to the House of Lords, which decided to affirm the ruling of the Exchequer Chamber, but Lord Cairns sharply limited Justice Blackburn’s broad statement Lord Cairns ruled that the principle applied only to a “nonnatural” use of the defendant’s land, as distinguished from “any purpose for which it might in the ordinary course of the enjoyment of land be used.” He thus shifted the emphasis from the mere tendency of all water to escape, to the abnormal and inappropriate character of the defendant’s reservoir in coal mining country Strict liability exists for harm resulting from the miscarriage
of lawful activity that, considering its place and manner, is unusual, extraordinary, or inappropriate As a result, water collected in household pipes or a stock-watering tank or a cistern is a natural use, but water collected in large tanks in dangerous proximity to the plaintiff’s land is not
The same activity might be appropriate or normal in one location but not in another;
therefore, the primary basis of liability is the creation of an extraordinary risk A water reservoir is an inappropriate use of land in a coal mining area, but not in an arid state
Blasting creates unusual and unacceptable risks
in the midst of a large city, but not in remote rural areas If the activity, such as crop dusting,
is appropriate to the area, strict liability exists only if the activity is conducted in an unusual or abnormal way
Until 1947 the English courts had liberally applied the doctrine enunciated in this case
Whereas the rule was originally stated in terms
of an “escape” of that which caused the harm, subsequent cases imposed no such requirement
The rule was also extended to cover personal injuries as well as property damage In a 1947 case, however, the House of Lords refused to impose strict liability in favor of a government inspector injured in an explosion at the defendant’s munitions plant on the ground that there had been no escape of a dangerous substance from the defendant’s land Two of
RYLANDS V FLETCHER 467