Imágenes de páginas
PDF
EPUB

ΤΟ

THE MEMORY OF MY FRIEND,

LIEUTENANT COLONEL

ROBERT NICHOLSON SCOTT,

THIRD UNITED STATES ARTILLERY,

WHOSE GENIAL NATURE CAUSED HIM EVERYWHERE ΤΟ BE BELOVED; WHOSE

PROFESSIONAL LITERARY LABORS, IN WHICH HE SACRIFICED

HIS LIFE, FORM AN ENDURING MONUMENT TO HIS INDUSTRY,

ABILITY, AND DEVOTION TO DUTY; AND

WHOSE CONFIDENCE IT WAS MY PRIVILEGE TO ENJOY,

THIS WORK IS

AFFECTIONATELY INSCRIBED.

PREFACE.

When, in 1886, the writer was detailed by the War Department as Acting Judge Advocate Department of the Columbia, he found, upon reporting for duty, that the Commanding General had but recently, under the President's orders, been assisting the Governor of Washington Territory to put down an uprising against the Chinese. The more effectually to do this, the civil authorities being powerless, the Governor had deemed it necessary to proclaim martial law in the most populous city of the Territory. The writer found also that both these officials were being proceeded against in the courts for alleged violations of the rights of certain citizens on this occasion. He began to prepare himself as best he could to defend his chief, the commanding general, from civil liability. The suits were soon dropped, it being evident to even the plaintiffs that they would prove futile. Meanwhile, however, the interest of the writer having been attracted, he continued to pursue his researches after the cause which originally inspired them had ceased to be of practical importance.

It was soon seen that, under the term martial law, two distinct branches of military jurisdiction-the foreign and the domestic-were, by most authorities, hopelessly confounded. This, perhaps, was not unnatural, for martial law may with no great impropriety be used to signify the sway of arms under all circumstances. Yet, because of the diverse rules of responsibility attaching to those who enforce military jurisdiction under varying conditions, it is necessary, not only to avoid confusion of thought, but to protect officers in their just rights, to attach to the term a more technical meaning.

When operating on foreign soil the legal obligations of the dominant military are tested by one rule; when within their own territory by a wholly different rule, having regard to the civil and property rights of the inhabitants. What may be permissible to the commander in the exercise of his authority in the former, with no responsibility other than to his military superiors, might, in the latter, subject him to grave civil responsibilities. If it be attempted to throw around the officer in the latter case that immunity from civil liability which attaches to his conduct in the former, the people-his fellow-citizens-might with well-founded apprehensions view the temporary establishment over them, for even

the most laudable purpose, of the rule of military force. If, however, it be understood that this can not be done; if the principle be established that the commander who, under any circumstances whatsoever, assumes to enforce superior military power over the people and territory of his own country does so under ultimate legal responsibility for his acts, military rule is deprived of its terrors, and the law-abiding citizen sees in it nothing except the firm application for his benefit of the powerful military hand when civil institutions have ceased either wholly or at least effectively to perform their appropriate functions. Nor as to this does it signify whether temporary military supremacy results from efforts to repel invasion or to suppress insurrection. The rule of liability is the same in both cases.

It is evident, therefore, that there must be one term to express the fact of supreme military domination over the community abroad, and another for the same thing at home.

This was clearly pointed out by Attorney-General Cushing, in 1857, in an opinion conspicuous for the legal acumen which characterizes the professional writings of that distinguished jurist. But at that time the true nature and limits of military jurisdiction had not in this country received sufficiently close judicial examination to admit of demonstration upon recognized principles of municipal and international law. This it remained for the Chief Justice of the United States to do in the dissenting views of the minority of the justices in Ex parte Milligan, after the experience of the Civil War had directed attention to, and thrown a flood of light upon, the subject. The truth of this observation is wholly independent of the conflicting opinions, regarding the correct territorial limits of martial law, expressed by the justices in that celebrated case. The analysis of the chief justice is masterly, and leaves nothing to those who follow him except to fill in the details of the plan, the ground-work of which he so ably laid. This has been attempted in the following pages. How imperfect soever the execution, it may result in fuller investigation into, and exposition of, the principles involved, and thus prove of benefit to the military profession-to serve which is the writer's only ambition.

WASHINGTON BARRACKS, D. C.,

November 1, 1892.

« AnteriorContinuar »