Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P48 potx

prisoners 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, and DISCRIMINATION 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 diff erence 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 offens ive 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 in SELF-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 no IMMUNITY 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 civilian s 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 gover nment 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 ALLEGIANCE to an occupying power during a state of MARTIAL LAW. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 458 RULES OF WAR Occupation is an important aim of warfare, enabling a belliger ent 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 p ermitted to destroy private property, except in cases of military necessity, and must fairly c ompensate individuals from whom it confiscates personal belongings. The occupying power may require private residents t o house its troops, b u t 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 i t s 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. Non e- 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RULES OF WAR 459 they may neither attack nor sink an enemy merchant ship unless it refuses to obey a signa l 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 arm s, 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 consid ered an ASYLUM for 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 bod y has been created to admin- ister the rules of war. Although the United Nations has acted with mult inational support in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 460 RULES OF WAR 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 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 examp le, 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 Disarm ament; Court- Martial; Habeas Corp us; 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 admissib ility 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 effec t during a prescri bed period of time; as in, the STATUTE OF LIMITATIONS has 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 ma intain a fence is an example of a COVENANT that runs with the land. A COVENANT, 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RUNNING WITH THE LAND 461 v RUSH, BENJAMIN Benjamin Rush, a physician, teacher and political activist, is best known for being a member of the CONTINENTAL CONGRESS and 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 General GEORGE 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, and SLAVERY. 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 on e of the signers of the Declaration of Independence. The proclamation, large ly crafted by THOMAS JEFFERSON, was approved on July 4, 1776. In 1777 Rush was appointed SURGEON GENERAL of 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 ▼▼ ▼▼ 1750 1800 1775 ◆ ❖ 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 I ANTICIPATE THE DAY WHEN TO COMMAND RESPECT IN THE REMOTEST REGIONS IT WILL BE SUFFICIENT TO SAY I AM AN AMERICAN. —BENJAMIN RUSH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 RUSH, BENJAMIN His 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. v RUSH, 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 betw een 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 INDEPENDENCE and 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- TION of 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 17751775 18251825 18501850 18751875 18001800 ❖ ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RUSH, RICHARD 463 British 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 thre at 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 runnin g 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 its BOARD 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. v RUTLEDGE, 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 w ealthy physician father died w hen 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 ▼▼ ▼▼ 17251725 18001800 17751775 17501750 ◆◆ ❖ ❖ ◆◆ 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 1789 Appointed associate justice of the Supreme Court by Washington 1791 Resigned from Supreme 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 . —JOHN RUTLEDGE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 RUTLEDGE, JOHN prepared for a legal and political career: the teenager was sent to England to study law at the Middle Temple, one of the INNS 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. Cong ress 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 begu n 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 suic ide 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. v RUTLEDGE, 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 . —WILEY B LOUNT RUTLEDGE JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RUTLEDGE, WILEY BLOUNT, JR. 465 himself in debate, classical literatu re, 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 unreasonable SEARCHES 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 ▼▼ ▼▼ 19001900 19501950 19251925 ❖ ◆◆ 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 ◆ ❖ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 466 RUTLEDGE, WILEY BLOUNT, JR. States, 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 DEPARTMENT because 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 for WAR CRIMES on the basis of HEARSAY evidence. 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 18 65 the t rial 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 damag e 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 enu nciated 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RYLANDS V. FLETCHER 467 . with ▼▼ ▼▼ Richard Rush 1 780 – 185 9 17751775 182 5 182 5 185 0 185 0 187 5 187 5 180 0 180 0 ❖ ❖ 1 780 Born, Philadelphia, Pa. ◆ ◆ ◆ ◆ ◆ 1797 Graduated from the College of New Jersey (later Princeton University) 181 1–14 Served. in cases of military necessity. Inhabitants owe no duty of ALLEGIANCE to an occupying power during a state of MARTIAL LAW. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 4 58 RULES OF WAR Occupation. comptroller of the U.S. Treasury under Madison 184 7–49 Served as minister to France under Polk 1775 83 American Revolution 181 2–14 War of 181 2 186 1–65 U.S. Civil War 185 9 Died, Philadelphia, Pa. 183 6–38