LECTURE XLIII.

Military Law, Military Government, and Martial Law.

- Military Law as authorized by the Constitution consists of the Rules made by Congress for the Government of the Land and Naval Forces of the United States. It and the Jurisdiction of the Tribunals convened under it are confined to Persons in the Military or Naval Service of the Government. - A Citizen cannot be brought within the Jurisdiction of a Court-Martial by finding that he is an Enemy or Soldier, contrary to the Fact. Officers of the Army and Navy accountable to the Civil Courts for their Conduct to the Men under their Command. Soldiers hold a Twofold Relation, and may be punished for the same Act by a Court-Martial and by the Civil Tribunals. Congress cannot exempt Persons in the Naval or Military Service from Liability for Acts done contrary to the State Laws. The Power "to make Rules for the Government of the Land and Naval Forces" should be read in the light of the "Mutiny Act.”

Ir is important to ascertain how far the doctrines of the common law as already stated have been modified or enlarged by the Federal Constitution, and whether Congress can legislatively supersede the judiciary and establish the French état de siège throughout the United States. There are two subordinate inquiries, What power may be exercised during war or insurrection over the hostile territory? Can the military be placed beyond the jurisdiction of the State and national tribunals, and erected into a privileged class who are accountable only to their commanders, or courts constituted by them? Agreeably to the opinion of Chief-Justice Chase in Ex parte Milligan,1 there are under the Constitution three kinds of military jurisdiction, one to be exercised in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be

1 4 Wallace, 141.

exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States adhering to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in the acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces, in pursuance of the power conferred by the Constitution; the second article may be distinguished as military government, superseding, as far as may be deemed expedient the local law, and exercised by the military commander under the direction of the President with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily when the action of Congress cannot be awaited, and in the case of justificatory or excusing peril by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights. This distribution of the subject is sufficiently accurate for general purposes, and may be conveniently followed, although it does not indicate the principle on which the authority of the general depends, as distinguished from that of the magistrate; and we may, in view of the decision of the majority of the court, be excused for refusing our assent to the proposition that Congress can establish martial law irrespective of the circumstances, or in districts where no imminent peril exists.

Military law, then, consists of the rules prescribed legislatively for the government of the land and naval forces, which, operating both in war and peace and defined by Congress, are an offshoot of the civil or municipal law. Military government is the dominion exercised by a general over a conquered State or province. It is therefore a mere application or extension of the force by which the conquest was effected, to the end of keeping the vanquished in subjection; and being a right derived from war, is hardly compatible with a state of peace. Martial law is the right of a general in command of

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a town or district menaced with a siege or insurrection to take the requisite measures to repel the enemy, and depends, for its extent, existence, and operation, on the imminence of the peril and the obligation to provide for the general safety. As the offspring of necessity, it transcends the ordinary course of law, and may be exercised alike over friends and enemies, citizens and aliens.

Military law is expressly authorized by the Constitution, which declares that Congress may make rules for the government and regulation of the land and naval forces, and excepts the army and navy of the United States, together with the militia when in actual service, from the provision of the Fifth Amendment, that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.1 Congress have exercised this power by establishing a military code for the government of the land and naval forces, under which courts-martial may be convened for the trial and punishment of offences against the discipline and regulations of the service. A commanding officer may also, when the maintenance of discipline requires it, and the case will not admit of delay, inflict punishment summarily, without convening a court-martial.2 But as his power is under these circumstances unbounded, and may extend to the deprivation of life, it must, in order to prevent abuse, " be exercised in due subordination to the jurisdiction which the law hath from time to time established for the prevention of wrong, and to which all men are of common right entitled to apply for redress." An officer cannot, therefore, rely exclusively on his position as such as a justification for the restraint or chastisement of an inferior.3 He must show some actual or probable cause which rendered the exercise of his authority necessary and proper for the good of the service, and that the punishment did not unduly exceed the offence.4 It was said by Chief-Justice Eyre, in Sutton v. Johnson,5 to 1 Constitution, Article I., sections 8, 14. Amendments, Article V. 2 Wilkes v. Dinsman, 7 Howard, 89; 12 Id. 390.

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3 Wilkes v. Dinsman, 7 Howard, 89; Wilson v. Mackenzie, 7 Hill, 89. 4 Wilkes v. Dinsman, 7 Howard, 89. 5 1 Term, 493, 504.

exercised in time of invasion or insurrect of the United States, or during rebelli of States adhering to the national g public danger requires its exercise. be called jurisdiction under military acts of Congress prescribing rule otherwise providing for the go forces, in pursuance of the pow tution; the second article m tary government, supersedin expedient the local law, and mander under the direction or implied sanction of Con nominated martial law Congress, or temporarily be awaited, and in the by the President, in t civil or foreign war, nary law no longer a vate rights. This accurate for gener lowed, although it the authority of that of the magi of the majority assent to the pro law irrespective no imminent I Military law, tively for the go operating both are an offshoot

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nflict for that offence; but there was still ision of a jury whether the chastisement was reasonable, and as to the motives actuating The presumption was in his favor, as in that ating as a judge or exercising a judicial dist might be rebutted by proof that his power In these instances the defendant took the ponsibility on himself without a court-martial; ice of a court-martial, duly convened and actlimits of its powers, like that of every other duly constituted tribunal, is conclusive, and for the persons who carry it into effect.1

judgment of any court effectual, it must neverurisdiction of the cause and the parties, which resumed in the case of limited and inferior triust be shown by those who rely on the judgnce.2 If, therefore, a court-martial sentence a is not subject to their jurisdiction to a lawful or inflict an unlawful punishment on one over

authority extends, they will be trespassers, made answerable civilly or criminally for the

. Withers, the Supreme Court of the United that inasmuch as the plaintiff was a justice of the could not legally be enrolled as a militiaman, he bject to the jurisdiction of the court-martial; and 11 settled that the decision of such a tribunal in a ly without its jurisdiction did not protect the officer cuted it. The court and the officer were alike tres

The same doctrine was enunciated in Dynes v. 5 and is sustained by the authorities in this counin England, which show that the members of a mili

nes v. Hoover, 20 Howard, 65, 83.

Smith's Lead. Cas. (8 Am. ed.) 1108, 1125.

ce ante, p. 141; Mostyn v. Fabrigas, Cowper, 161; 1 Smith's Lead.

(5 Am. ed.) 1041; Dynes v. Hoover, 20 Howard, 65, 80; Tyler v.

5 20 Howard, 65, $1.