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