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He resorts to all measures, however repugnant to ordinary law, which he deems best calculated to secure the safety of the State in the imminent peril to which it is exposed. Martial law, being thus vague and uncertain, and measured only by the danger to be guarded against, exists only in the breast of him who proclaims and executes it. It is contained in no written code. . . . . Despotic in its character, and tyrannical in its application, it is only suited to those moments of extreme peril when the safety, and even existence, of a nation depend on the prompt adoption and unhesitating execution of measures of the most energetic character.

The constitution of the United States has wisely, and indeed necessarily, permitted the proclamation of martial law in certain specified cases of public danger, when no other alternative is left to preserve the State from foreign invasion or domestic insurrection." In the extreme circumstances which justify martial law, it may be proclaimed by a military commander; 2 or, as in the recent Dorr rebellion in Rhode Island, by the legislature of a State. But, although we have quoted the words of O'Brien to the effect that it is nearly the same as no law, and despotic in the extreme, yet there is room for doubt whether this is strictly so. It of course suspends for the time the civil courts; but there seems to be no reason why the new summary tribunals should not consider themselves bound in their proceedings to govern themselves, as far as the nature of the case will admit, by established principles of justice, the same which had before been recognized in the civil courts.5

1 O'Brien Courts Martial, 26.

* 1 Bouv. Inst. 53; Johnson v. Duncan, 3 Mart. La. 530; 1 Kent Com. 341, note.

' Luther v. Borden, 7 How. U. S. 1, 45; Commonwealth v. Blodgett, 12

Met. 56. See also on Martial Law, 1 McArthur Courts-Martial, 35.

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And see Luther v. Borden, supra; Commonwealth v. Blodgett, supra; Commonwealth v. Fox, 7 Barr, 336; People v. McLeod, 1 Hill, N. Y. 377, 415, 435; 3 Greenl. Ev. § 469.



§ 49. Secondly. In the United States and in England, however the fact may be elsewhere, military law is in no way subversive of the other laws of the land, but is in harmony with them. Says O'Brien, concerning the United States: "It is an accumulative law. The citizen, on becoming a soldier, does not merge his former character in the latter. . . . . With regard to the civil powers and authorities, he stands in precisely the same position he formerly occupied. . . . . He still remains subject to them, and is bound to assist and aid them, even in the apprehension of his military comrades. There is no principle more thoroughly incorporated in our military, as well as in our civil code, than that the soldier does not cease to be a citizen, and cannot throw off his obligations and responsibilities as such. The general law claims supreme and undisputed jurisdiction over all. The military law puts forth no such pretensions. It aims solely to enforce, on the soldier, the additional duties he has assumed. . . . . These two systems of law can in no case come in collision. The military code commences where the other ends. It finds a body of men who, besides being citi-. zens, are also soldiers." So, in England, "the military law is subordinate to the civil and municipal laws of the kingdom, and does not in any way supersede those laws; but they materially aid and coöperate with each other, for the good order and discipline of the army in particular, and for the benefit of the community in general." 2

§ 49 a. Nothing is plainer in principle, than that neither military nor martial law is justified in running riot. The doctrines of right, as established by the common consent of the people, and evidenced by the decisions of the courts, should in no emergency be violated, because no emergency can call for the commission of wrong. Emergencies may demand

1 O'Brien Courts-Martial, 26, 27.

1 McArthur Courts-Martial, 3d ed. 33, and see on p. 34.

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new methods and prompt movements in executing the right; but never the subversion of the right, and the execution of the wrong.

Authorities and Field of Investigation.

§ 50. The principal English authorities, therefore, which we shall have occasion to consult in the following pages, are the reports of decisions in criminal cases at common law, and some old text-books which have acquired a standard reputation. Of the latter, the Institutes of Lord Coke should not be omitted; for he is a great name in every department of legal knowledge, -the Shakspeare of our legal literature. But the treatises of Lord Hale and Sergeant Hawkins, on the Pleas of the Crown, stand preeminent in this department.2 "Hale and Hawkins," said an American judge of great criminal law learning, "are justly regarded, not as respectable compilers, but as standard authorities." -The later works, though valuable, have not so much the weight of authority.4 Of course our subject will now and then sweep a wider English field than is here indicated; while, in the United States, immense regions of legal wisdom lie before us, unknown to the English investigator. Occasionally, too, we shall look into the Scotch law and other foreign laws, yet not often; for, as a Scotch judge once said, "In considering this question, I pay very little regard to what may be the law of other countries in similar cases. The laws of different nations, and especially the criminal laws, must always depend on the character and habits of the people, and other circumstances."5 Let us therefore proceed to our main subject.

1 Ante, § 32, 34.

'Parke, J., in Rex v. Long, 4 Car. & P. 398, 405, 406; Abbott, C. J., in Rex v. Rogier, 1 B. & C. 272, 274 ; Dallas, C. J., in Butt v. Conant, 1 Brod. & B. 548, 570 et seq.; Ram Leg. Judgm. 88, 169.


Gaston, J., in The State v. Johnson, 1 Ired. 354, 363.

4 Ante, § 34.

'Lord Justice-General, in Alston's case, 1 Swinton, 433, 473.





SECT. 51-526. Constitutional Law as limiting Legislation.
53-54 a. Other Limits to Legislative Power.

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58 c, 59. Statutory Interpretation, and when Statutes take Effect.

§ 51. HAVING Seen,1 that the subject mainly occupying us in these pages will be the unwritten law, we shall first view those of its principles which govern the interpretation of the written. Preliminarily to which we shall advert, in the present chapter, to some points concerning the nature and force of written law. It is the theory of our State and national governments, that sovereignty originates in the people, from whom alone our legislative bodies derive their authority. So the people, instead of giving to their lawmakers complete legislative power, have established for them, in the

1 Ante, § 44.

written constitutions of the several States and of the United States, limits beyond which they cannot go. These constitutions are the supreme law; and all legislative acts conflicting with any of their provisions are nullities, having no effect, direct or collateral, for any purpose whatever.1 Not even, like an erroneous judgment rendered by a competent tribunal on a valid law,2 will they protect an officer in performing any of their requirements, or obeying process founded upon them.3 Yet a statute may be unconstitutional in part, and within the legislative authority as to the residue; when the courts will sustain the sound part, if in its nature separable from the rest, even though it be only a repealing clause, and reject the unsound. In England, no superior law of the realm exists to override an act of parliament. What is called constitutional

law there, is declared by the parliament itself.

§ 51a. The duty is necessarily on the courts in this coun

11 Kent Com. 448-455; Marbury v. Madison, 1 Cranch, 137; The State v. Fleming, 7 Humph. 152; Bliss v. Commonwealth, 2 Litt. 90; Bank of St. Mary's v. The State, 12 Ga. 475; Haley v. Clark, 26 Ala. 439.


The State v. Weed, 1 Fost. N. H. 262; Rex v. Dyer, 6 Mod. 41.

* Astrom v. Hammond, 3 McLean, 107; Fisher v. McGirr, 1 Gray, 1.


Ely v. Thompson, 3 A. K. Marshall, 70. Where the repealing clause of an unconstitutional enactment was, "that all laws contravening the provisions of this act be, and the same are, hereby repealed,”- the court held, that it did not operate as a repeal of any thing; because, "if the new law is void, the provisions of the former law cannot with propriety be said to be in conflict, or contravention of it." Tims v. The State, 26 Ala. 165. Bank of Hamilton v. Dudley, 2 Pet. 492, 526; Clark v. Ellis, 8; Fisher v. McGirr, 1 Gray, 1; Steele v. The State, 5 Blackf. 110; The State v. Allen, 2 McCord, 55; Yarmouth v. North Yarmouth, 34 Maine, 411. “A by-law may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other." Lord Kenyon, C. J., in Rex v. Faversham, 8 T. R. 352, 356. See also Commonwealth v. Dow, 10 Met. 382; Austin v. Murray, 16 Pick. 121, 126; Fitzacherly v. Wiltshire, 11 Mod. 352, 354, 1 Stra. 462, 469; Lee v. Wallis, 1 Keny. 292, 295; Cincinnati v. Rice, 15 Ohio, 225; The State v. Snow, 3 R. I. 64; The State v. Copeland, 3 R. I. 33.

'Dwar. Stat. 2d ed. 523.

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