that his name shall appear in the Army Register next below the name of" a certain other first lieutenant of his regiment, held not a punishment executed upon approval, so as to be beyond remission, but, like a sentence to lose files, a continuing punishment removable by pardon.' 56, 434, December, 1892.

1632. In 1874 an officer, then a first lieutenant, was sentenced "to be reduced in rank so that his name should thereafter be borne on the rolls of the army next after that of" a certain other first lieutenant of the same regiment. This officer was promoted to a captaincy, May 10, 1888, and the officer under sentence was similarly promoted, August 20, 1889. Upon an application by the latter (in 1890) to have his sentence remitted, held that, by the operation of the first of these promotions, the sentence was rendered irrevocable. A remission or pardon would not at this time restore the officer to the position he occupied prior to the sentence, nor divest the rights of others acquired by promotion during the pendency of his reduction. The sentence had indeed been fully executed and was therefore beyond the reach of the pardoning power. 41, 380, July, 1890.

M.

MANSLAUGHTER.

1633. That this crime, when its commission by an officer or soldier affects the discipline of the service, may be taken cognizance of by a court martial, in time of peace, under Art. 62, as "conduct to the prejudice of good order and military discipline," see SIXTY-SECOND ARTICLE. In time of war it is made so cognizable, when committed by an officer or soldier under any circumstances, by Art. 58.

1634. A party of soldiers left their camp at night in time of war without leave and contrary to positive orders, and proceeded to a neighboring town where they created a disturbance. Their commanding officer followed them, found them at an ale-house, and was about to arrest them when they broke from him, and, though knowing who he was, disregarded his order to halt and continued to run. He repeated his order, and not being obeyed, and having no other means of detaining them, fired upon them while fleeing, with his pistol, and shot and killed one of them. Having been brought to trial by court martial under a charge of murder, he was convicted of manslaughter, and sentenced to dismissal, forfeiture of pay, fine and imprisonment.

112 Opins. At. Gen., 547; 17 id., 17, 656.

Held, in view of all the circumstances of the case, that the finding and sentence would properly be disapproved.1 XI, 592, March, 1865.

1635. Where, in time of peace, a soldier while running toward his quarters from two officers of the command, who were attempting to arrest him for disorderly conduct at night, was, by the order of the superior officer, fired at by the inferior and mortally wounded; and it was doubtful upon the evidence whether a sufficient effort had been made to halt the soldier before firing, while at the same time it appeared quite probable that he might subsequently have been identified at the post and duly punished;-held that, whatever may have been the offence, if any, of the junior officer, the superior, who directed the firing, might, upon the death of the soldier from his wound, properly be brought to trial on a charge of "manslaughter to the prejudice of good order and military discipline." XXV, 592, June, 1868.

1636. Where a soldier confined with other prisoners in a guard house, in time of peace, was under the influence of liquor and noisy, and continued to be noisy and disorderly though repeatedly ordered by the officer of the day to keep quiet, and was finally struck or thrust in the breast by the latter with his sword and mortally wounded so that he presently died; and it did not appear that there was any danger of mutiny or serious disturbance on the part of the other prisoners present at the time;-held that the evidence established no sufficient justification for a resort by the officer to such an extreme proceeding, and that his conviction by court martial of "manslaughter to the prejudice of good order and military discipline," and sentence of dismissal, were warranted and proper. An officer has no right to take the life of a soldier, nor to commit a battery upon him with a dangerous weapon, except in a most aggravated case: as in a case of riot, rescue or mutiny, violent resistance to superior authority, escape, or refusal to obey a lawful order requiring instant obedience-when no other but such extreme means will restrain or compel compliance.* And an act of killing of a soldier, which in time of war might be justifiable homicide, might be manslaughter, or even murder (see MURDER) in time of peace. XXXVIII, 579, April, 1877.

MARRIAGE.

1637. In the absence of express authority given by a statute of the State or Territory, an officer of the army cannot be empowered to

1

Disapproved accordingly in G. C. M. O. 177, War Department, 1865. Compare the case of a killing by a deputy U. S. marshal under similar circumstances, referred to by the Attorney General in 14 Opins., 71.

See remarks of Secretary of War in G. C. M. O. 47, Hdqrs. of Army, 1877; and compare United States v. Carr, 1 Woods, 484; also orders cited in note to § 2322, post.

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solemnize marriage, whether the male party be a soldier or a civilian. XXIX, 674, February, 1870; Card 3501, September, 1897.

1638. A military commander, authorized to grant or refuse passes or furloughs to his command, may of course refuse permission to leave the post to a soldier whose purpose is to become married. A commander may also, if the interests of discipline require it, exclude the wives of soldiers (who are not laundresses) from a post under his command at which their husbands are serving. But while the Army Regulations forbid the enlisting (in time of peace, without special authority) of married men, there is no statute or regulation forbidding the contracting of marriage by soldiers, any more than by officers, while in the service. So held that, under existing law, a military commander could have no authority to prohibit soldiers, while under his command, from marrying; and that the contracting of marriage by a soldier (although his commander had forbidden him, or refused him permission, to marry) could not properly be held to constitute a military offence. Where indeed there is involved in the conduct of the soldier at the time any military neglect of duty or disorder, he may, for this indeed, be brought to trial, but not for the marrying as such. And remarked, that if the marrying by soldiers after enlistment becomes so generally practiced as to be demoralizing to the army or otherwise prejudicial to discipline, the evil can effectually be repressed only through new legislation by Congress. XXXVIII, 47, April, 1876; 407, January, 1877; XLIII, 109, December, 1879.

MARTIAL LAW.

1639. Martial law is a modified degree of the law of war (see § 1567, ante), or a law assimilated to the latter, called into exercise temporarily and for a specific purpose, at a time of war or public emergency, and generally in a place or region not constituting enemy's country, or under permanent military government.' Whether proclaimed by the President or declared by a competent military commander, martial law overrides and supersedes, for the time being, all civil law and authority, except in so far as the same may be left operative by the terms of the announcement, or the action or acquiescence

Note the distinction between military government proper and martial law as illustrated in Milligan's Case, 4 Wallace, 142. The "martial law" referred to in the text is defined in the Manual for Courts Mar. (1901), p. 5, as "Martial Law at Home (or, as a domestic fact); by which is meant military power exercised in time of war, insurrection or rebellion, in parts of the country retaining their allegiance, and over persons and things not ordinarily subject to it."

2 Luther. Borden, 7 Howard, 13-14; United States . Diekelman, 2 Otto, 526; In re Egan, 5 Blatch. 319, 321; Griffin e. Wilcox, 21 Ind. 376; Johnson v. Jones, 44 Ills. 153; In re Kemp, 16 Wisc. 382; Clode (Military and Martial Law), 183-191; Hough (Precedents), 514, 549; G. O. 100, War Dept., 1863, Sec. I.

of the dominant power. While the status of martial law continues, the military power, instead of being subordinate, is superior to the civil power, and the natural and normal condition of things is thus reversed. But while martial law will warrant a resort by the commander, at his will, to summary and arbitrary measures, by which the liberty of the citizen may be restrained, his action coerced, and his rights suspended, it cannot be availed of by subordinates to justify acts of unnecessary violence, personal persecution, or wanton wrong.' XII, 105, December, 1864; XIX, 41, October, 1865; Card 8383, May, 1900.

1640. Where a city or district has been put under martial law by the commanding general, he becomes its supreme governor, and, in governing, is ordinarily to be presumed to be empowered to exercise the same authority which the President might have exercised had he proclaimed martial law therein. X, 669, December, 1864.

1641. In view of the President's proclamation of July 5, 1864, suspending the writ of habeas corpus, and establishing martial law in the State of Kentucky, held (December, 1864), to be competent for the general commanding the military district of Kentucky, if in his judgment the effective maintenance of martial law and the accomplishment of the ends proposed by its declaration required it, to restrain, by such means as in his discretion might be deemed needful, the prose.cution of suits instituted against United States officers for acts done in the line of their duty, and having the effect (indicated in the proclamation) of impeding "military operations," and of embarrassing "the constituted authorities of the Government of the United States." X. 669, December, 1864.

1642. The occasion for the exercise of martial law properly ceases when the emergency has passed which made it necessary or expedient." So, the commander of the Middle Military Department having, in view of the presence in the department of an army of the enemy, proclaimed, by order of June 30, 1863, a state of martial law in Baltimore city and county and the counties of the western shore of Maryland, with the assurance expressed that such status should not extend beyond

166 "But the existence of martial law does not authorize general military license, or place the lives, liberty, or property of the citizens of the States under the unlimited control of every holder of a military commission." Despan v. Olney, 1 Curtis, 308. And see Luther v. Borden, 7 Howard, 14; G. O. 100, War Department, 1863, Sec. I, par. numbered 4.

"In Clark . Dick, 1 Dillon, 8, the court, referring to the placing of the city of St. Louis under martial law by the Department Commander, Maj. Gen. Halleck (by G. O. 34, Dept. of the Missouri, 1861), observes: "That this officer represented the President who is commander-in-chief of the army and was vested with all the authority as such military commander that belonged to the President, cannot be doubted."

3 In re Egan, 5 Blach. 319, 322; In the matter of Martin, 45 Barb. 145; Hough (Precedents), 535.

the necessities of the occasion,-held that as the exigency had long ceased to exist, the order, though never in terms revoked, should properly be considered as no longer operative. XII, 422, June, 1865.

1643. The President's proclamation of Sept. 24, 1862, subjected to martial law and trial by military courts throughout the United States certain classes of persons named, and suspended the privilege of the writ of habeas corpus as to all persons imprisoned under military sentence or by military authority "during the rebellion." The further executive proclamation of Sept. 15, 1863 (issued pursuant to the act of March 3, 1863,-see § 1436, ante), suspended the privilege of the writ throughout the United States as to certain classes of persons enumerated. The further proclamation of Dec. 1, 1865, in revoking generally the suspension declared by the proclamation of Sept. 15, 1863, excepted from such revocation, and left the suspension in force in, certain States and Territories specified and "in the District of Columbia." The proclamation of April 2, 1866 (which, in one of its preambles, declared that martial law and the suspension of the writ of habeas corpus were "dangerous to public liberty, incompatible with the individual rights of the citizen," &c., and "ought not to be sanetioned or allowed except in cases of actual necessity," &c.), announced the rebellion as at an end throughout the United States, the State of Texas only excepted. Held, in view of these proclamations, that, so far as concerned the exercise of military authority and jurisdition, martial law might be considered to have existed in the District of Columbia, from Sept. 24, 1862, as to the classes of persons indicated in the proclamation of that date, and from Sept. 15, 1863, as to other classes of persons indicated in the proclamation of that date, to April 2, 1866, the date of the proclamation issued at the end of the war.1 XXXV, 177, February, 1874.

2

1644. Martial law is defined as military authority exercised in accordance with the rules and usages of war; and "Martial Law at Home" (or, as a domestic fact) as military power exercised in time of war. insurrection or rebellion, in parts of the country retaining their allegiance, and over persons and things not ordinarily subject to it." Martial law as a domestic fact presupposes a condition in which the civil courts are unable to enforce their processes, and is justified by the necessity of society's protecting itself by suppressing the resistance, so as to enable the civil courts to fulfill their proper functions.

* *

*

"It would seem to be conceded that the power to suspend this writ" (the writ of habeas corpus) "and that of proclaiming martial law, include one another. The right to exercise one power implies the right to exercise the other." 9 Am. Law Reg. 507-8. And see Er parte Field, 5 Blatch. 82.

2 Instructions for the Armies of the United States in the Field, G. O. 100, A. G. O., 1863.

3 Manual for Courts Martial (1901), p. 5.