Imágenes de páginas
PDF
EPUB

security of a free State, the right of the people to keep and bear arms shall not be infringed."

Other clauses of the Constitution give to the United States the power to exercise exclusive authority "over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings;" "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" and "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." 2

There is thus apparent the purpose to equip the National Government with adequate military authority to maintain itself against enemies both domestic and foreign. Upon the other hand, while the States are not deprived of military authority necessary to maintain domestic order or to protect themselves against invasion, the maintaining of armed forces for any other purpose, or the engaging in foreign war, or entering into alliances that may lead to war, is forbidden. By clause 3 of Section X of Article I it is declared: "No State shall, without the consent of Congress, lay any duty of tonnage, keep any ships-of-war, in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

Section IV of Article IV declares that "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence."

§ 704. Military Law: With Reference to Members of the Army and Navy.

The Constitution provides, as has been seen, that Congress shall have the power to provide and to make rules for the government

2 Art. I, Sec. VIII.

and regulation of the land and naval forces. It is also provided that the President shall be Commander-in-chief 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." 3

Under these grants of power, Congress has established an army and navy, and by laws, passed from time to time, has provided the rules by which the respective powers and duties of the officers and men constituting this military establishment are to be determined and exercised. Collectively these rules are known as the Military Laws of the United States.*

$705. Articles of War.

The chief of these military laws, so far as they relate directly to the duties and obligations of the individual soldier, are embodied in the so-called Articles of War, which constitute sections 1342 and 1343 of the Revised Statutes.5

3 Art. II, Sec. II, Cl. 1.

4 The latest compilation of these rules is that prepared by the Judge-Advocate-General George B. Davis, under the direction of the Secretary of War, and published by the United States Government as House Document No. 545, Fifty-sixth Congress, second session.

5 Historical note. The following historical note is taken from the compilation of the Military Laws of the United States, pp. 962-3:

"In the early periods of English history military law existed only in time of actual war. When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, Articles of War, were issued by the Crown, with the advice of the constable or of the peers or other experienced persons, or were enacted by the commander in chief in pursuance of an authority for that purpose given in his commission from the Crown.

"These ordinances or articles, however, remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law in time of peace did not come into existence until the passing of the first mutiny act in 1689.

"The system of governing troops in active service by articles of war, issued under the prerogative power of the Crown, whether issued by the King himself, or by the commanders in chief, or by other officers holding commissions from the Crown, continued from the time of the Conquest til long after the passing of the annual mutiny acts, and did not actually cease till the prerogative power of issuing such articles was superseded in 1803 by a corresponding statutory power.

"The earlier articles were of excessive severity, inflicting death or loss of

With the details of this considerable body of statutory law we are not here concerned. With its general character, and especially with its relations to the other civil portions of the law of the land, we are, however, interested.

§ 706. Obligations Assumed by Enlistment.

By enrollment in the military forces of the United States, the individual assumes new obligations, and is subjected to certain limb for almost every crime. Gradually, however, they assumed something of the shape which they bear in modern times, and the ordinances or articles of war issued by Charles I in 1672 formed the groundwork of the Articles of War of 1878, which were consolidated with the mutiny act in the army discipline and regulation act of 1879, which was replaced by the army act of 1881. The army act of 1881, which now constitutes the military code of the British army, has of itself no force, but requires to be brought into operation annually by another act of Parliament, thus securing the constitutional principle of the control of the Parliament over the discipline requisite for the government of the army.

"The Rules and Articles of War [of the United States] were derived originally from the English mutiny act and articles of war under the following circumstances: In May, 1775, the Continental Congress met in Philadelphia and at once proceeded to levy and organize an army. A system of rules for its government was, of course, indispensable. The members of this Congress were naturally familiar with the English military code. The local troops serving with the English forces sent to this country in 1754 had been brought under the mutiny act, while the armies of Gage and Burgoyne were governed by the English code at the time the first Continental troops' were raised. It was but natural, therefore, that this body should turn to the mutiny act as a model, and on June 30, 1775, the Congress promulgated articles, 69 in number, for the government of the Continental troops. These articles were adopted from the English, in the same form as our present articles, modified, however, to meet the milder views which were entertained by a people who entertained an objection to a standing army. Additions were made in November of this year, but were repealed by the act of September 30, 1776, and new articles adopted. These articles, 102 in number, were modeled upon the British form and were arranged in 18 sections. With some modifications they remained in force until 1806.

"In September, 1789, they were formally recognized and adapted to the new Constitution by the First Congress of the United States. In 1806 the articles, 101 in number, were rearranged and promulgated by Congress; the divisions into sections were dropped and the old model substituted. These, with five or six modifications, remained in force for nearly seventy years, and were the governing code of the Army until the passage of the act of June 22, 1874. (18 Stat. at L. 113.) These articles are embodied in the Revised Statutes as sections 1342 and 1343 of that work."

forms of control to which he was not before subject. But he does not lose his right to the protection of the civil and criminal law, nor is he released from any of his obligations thereunder. Thus the enlisted soldier comes under an obligation to obey all the provisions of the military code, and for the violation of any one of them is subject to trial before a military court, a court-martial, and, upon conviction, to punishment ranging in severity from a small fine or short imprisonment to loss of life. In cases of urgency, which do not admit of delay, he may be summarily punished by order of his superiors, without even a court-martial being convened. Furthermore if the act for which he is tried, convicted and punished by the military authorities, is also an offense against the general law of the State in which he is, he may be tried, convicted and punished by the civil authorities of that State. Still further, as we shall see, if, in justification of his act, he sets up the command of his military superior, it must appear that that order was one which that officer had authority to give. Thus the soldier may at times find himself in the dilemma that if he refuse to obey the order of his military superior, he will receive immediate military punishment; whereas, if he obey it, he will later be held civilly and criminally liable in the ordinary courts. This dilemma, though easily conceivable, is not, in fact, often a serious one, for the soldier will not be held civilly and criminally responsible except in cases where he had grounds for knowing that the act ordered to be committed was not a proper one and not within the official power of his superior to command. The late Justice Stephen in his History of the Criminal Law of England, has stated the doctrine upon this point and the reasons for it, as follows:

"I do not think, however, that the question how far superior orders would justify soldiers or sailors in making an attack upon civilians has ever been brought before the courts of law in such a manner as to be fully considered and determined. Probably upon such an argument it would be found that the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to

have good reasons. Soldiers might reasonably think that their officer had good grounds for ordering them to fire into a disorderly crowd which to them might not appear to be at that moment engaged in acts of dangerous violence, but soldiers could hardly suppose that their officer could have any good grounds for ordering them to fire a volley down a crowded street when no disturbance of any kind was either in progress or apprehended. The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civilians in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army."

[ocr errors]

But, just as the individual soldier is still answerable in all respects to the non-military law of the State, so are his superiors when giving commands, as are also the members of courts martial and of other military tribunals, when trying him, and the persons by whom the orders of such tribunals are carried into effect; and if any act is by them ordered or committed which is not warranted by the law of the land, they may be held civilly and criminally responsible by the ordinary courts. Not even the order of the President himself, the constitutional commanderin-chief of the army and navy, if that order be without authority of law, is sufficient to justify the performance of the act commanded. This principle is excellently illustrated in the case of Op. cit. I, 205.

« AnteriorContinuar »