CHAPTER IV. MILITARY AND MARTIAL LAW. § 43. What here, and why. Though military and martial law are not criminal law, yet sometimes in the apprehensions of men they are blended with it. Therefore, and to assist in giving bounds to the criminal, and for some other reasons of convenience and instruction, the present chapter becomes important. Still, § 44. Military Law is deemed in some sense criminal,1 yet properly it is not such. It is "a body of rules and ordinances. prescribed by competent authority for the government of the military state, considered as a distinct community.” 2 Written or unwritten. With us, it is chiefly statutory.3 But to some extent it has an unwritten law derived from the mother country, being the law which was there anciently administered in the Court of Chivalry, or of the constable and marshal. This tribunal, like the chancery and admiralty courts, proceeded after the manner of the civil law; which, as Hawkins observes, "is as much the law of the land in such cases wherein it has been always used, as the common law is in others." 5 Courts-Martial. At present, both in England and the United States, the military law is administered chiefly in courtsmartial. 13 Greenl. Ev. § 469. 2 O'Brien Courts-Martial, 26; S. v. Davis, 1 Southard, 311; In re Esmond, 5 Mackey, 64. 3 For specimen statutes and their interpretation and effect, see Presser v. Illinois, 116 U. S. 252; In re Flint, 15 Q. B. D. 488; U. S. v. Clark, 31 Fed. Rep. 710; S. v. Harrison, 34 Minn. 526. 6 Concerning courts-martial, see Bell v. Tooley, 11 Ire. 605; Brooks v. Adams, 11 Pick. 441; Mills v. Martin, 19 Johns. 7; Wise v. Withers, 3 Cranch, 331; Contested Election of Brigadier-General, 1 Strob. 190; Coffin e. Wilbour, 7 Pick. 149; Opinion of the Justices, 3 Cush. 586; White v. McBride, 4 Bibb, 61; Alden v. Fitts, 25 Me. 488; Hall v. Howd, 10 Conn. 4 1 McArthur Courts-Martial, 3d ed. 13, 514, 27 Am. D. 696; Wilkes v. Dinsman, 18, 20. 5 2 Hawk. P. C. 6th ed. c. 4, § 7, 11. 7 How. U.S. 89, 123; S. v. Davis, 1 South- 1 § 45. Distinguished from Martial. Military law is distinct. from martial law, with which it is sometimes inconsiderately blended.1 Martial Law is the law of necessity, the ordinary law, and the law of nature intermingled in such manner and proportions as the military power deems to be required by the particular emergency, when it supersedes or otherwise takes a control superior to the civil power. Some even deny that it is law, regarding it as a mere despotism, and its abode the breast of the military commander. One writer, after expressing this idea, proceeds: "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." 2 Now, we have seen that no community can exist without law. And there is no more occasion for a military officer to rule by his uncontrolled whim than for a judge. Truly viewed, martial law can only change the administration of the laws, give them a rapid force, and make their penalties certain and effectual, not abrogate what was the justice of the community before. The civil courts are in part 4 or fully suspended; but, in reason, the new summary tribunals should govern themselves in their proceedings, as far as circumstances admit, by established principles of justice, the same which had before been recognized in the courts. 5 Jurisdiction Courts. "Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offences under the statute law must be tried in the manner therein directed; but military offences which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States, the first is exercised by courts martial; while cases which do not come within the Rules and Articles of War,' or the jurisdiction conferred by statute on courts-martial, are tried by military commissions." Lieber Instruct. pl. 13. And see Ex parte Vallandigham, 1 Wal. 243. 11 McArthur Courts-Martial, 3d ed. 32; 3 Greenl. Ev. § 468; Ex parte Bright, 1 Utah, 145. 2 O'Brien Courts-Martial, 26. 4 Dow v. Johnson, 100 U. S. 158. 5 And see Luther v. Borden, 7 How. U. S. 1; C. v. Blodgett, 12 Met. 56; Dreh How proclaimed. — In the extreme circumstances which justify martial law, it may be proclaimed by a military commander;1 or, as in the Dorr Rebellion in Rhode Island, by the legislature of a State. 2 § 46. Military compared with Civil. Military law is not, like martial law, antagonistic to the civil. The soldier is still a citizen, and he remains under the same subjection as all others to the civil powers. Added to which, but not displacing it, he wears the military law as an over-garment.3 "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." 4 "They materially aid and co-operate with each other, for the good order and discipline of the army in particular, and for the benefit of the community in general." Therefore, of course, — § 47. Proceeding by Rule. Military law and its administration proceed by rule. So, we have seen, even martial law ought to do. 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 new methods and prompt movements in executing the right; but never the subversion of it, and the execution of the wrong. "5 6 § 48. Martial Law by State. - By the United States Constitution, "no State shall, without the consent of Congress, . . . engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."7 Yet where, without congressional authorization, the Rhode Island legislature temporarily, under the pressure of a rebellion, instituted martial law throughout the State, it was held to be justified. "Unquestionably," said Taney, C. J., "a military government, established man v. Stifel, 41 Mo. 184, 97 Am. D. 268; 11 Bouv. Inst. 53; Johnson v. Duncan, 3 Mart. La. 530, 6 Am. D. 675; 1 Kent Com. 341, note. 2 Luther . Borden, 7 How. U. S. 1, 45; C. v. Blodgett, 12 Met. 56. See post, as the permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. The military government, in this case, had been set up only to meet an emergency, and the learned judge added: "Unquestionably a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority." 1 The § 49. Further as to which. Since the citizen owes allegiance as well to the United States as to his State, if the latter can place him under martial law, doubtless the former can also. The query in the case of the State is whether, as she has no warmaking power without the consent of Congress, she can without such consent declare martial law, which is an act of war. decision that she can is perhaps justified on the ground that high necessity may for the moment override the express words even of the Constitution; or, perhaps, by a very liberal interpretation, a State may be said to be "invaded" when she is beset by a domestic rebellion. But as we shall presently see, the national right to declare martial law rests on a broader and firmer foundation. § 50. Military and Martial under United States Constitution. This instrument gives Congress the power, among other things, 1 Luther v. Borden, 7 How. U. S. 1, 45. 2 Ante, § 23. 8 If my opinion were of any worth against that of the Supreme Court of the United States, dissented from by one judge only, I should deem the circumstances of the Rhode Island case itself to strengthen the doubt whether the true object of the constitutional provision stated in the last section was not, among other things, to restrain the States from entering into war, without the concurrence of the United States, even to suppress a rebellion at home. In the facts of this Rhode Island case, there were two parties, each of which claimed to be the lawful government of the State; and, as the case decides, it devolved on the United States authorities to determine between the two. When, therefore, it became apparent that the question could not be settled at home without a conflict of arms, and the conflict was in ferment, the governor at the head of either party should apply to the authorities of the United States for help under art. 4, § 4, of the Constitution, which provides that "the United States shall . . . protect each of them [the States] . . . on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence." On such an application, it would be determined by competent authority which was the rightful government, and the conflict of arms would ordinarily be avoided. I cannot but think that this is the true meaning of the Constitution. This view would not prevent the State from using its military power to enforce the decrees of the civil tribunals, and to assist the civil officers in keeping order and the like. It goes only to the extent that when the question becomes one of overturning the civil power, and setting up in the place of it the law of war, the United States shall be called in. "to make rules for the government and regulation of the land. and naval forces; "1 also, "the President shall be commander-inchief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States."2 In pursuance of the former of these two powers Written Military Law Unwritten. - Congress has legislatively provided Articles of War for the government of the armies; and, in pursuance of the latter, the War Department has caused to be drawn up and promulgated under the sanction of the President regulations for the army, and instructions for the government of the armies in the field; to which may be added orders issued from time to time by the various commanding officers. This is what may be termed the written military law of the country. There is also, in this department of the law, as in all others, an unwritten, or common, law. The written and unwritten constitute together the body of our national law military. This body of law contains also more or less directions concerning martial law. § 51. United States Martial and Military, compared. "Martial law," says Lieber in his "Instructions for the Government of the Armies of the United States in the Field," sanctioned and promulgated by the President and the War Department, "is simply military authority exercised in accordance with the laws and usages of war."4 If we liken military law to that by which legislatures and courts are constituted and their internal machinery is moved, then martial law will correspond pretty nearly with the laws enacted by the legislature and enforced by the courts for the government of the community outside. Martial law is rather the law by which the military power governs others than that by which it regulates its own internal affairs and governs itself. § 52. Martial Law is elastic, easily adapted to varying circumstances. It may operate to the total suspension or overthrow of the civil authority; or its touch may be light, scarcely felt or not felt at all by the mass of the people, while the courts go on in their ordinary course, and the business of the community flows in its accustomed channels. 5 1 Const. U. S. art. 1, § 8. 2 Const. U. S. art. 2, § 2. 8 Ante, § 44. 4 Lieber Instruct. pl. 4. 5 Ante, § 45. I cannot doubt that this statement is as near absolute legal truth |