Dostal se mi do rukou zajímavý dokument. Nevím, zda se jedná přímo o zákon, ale dle něho se jurisdikce vojenských soudů rozšiřuje i na civilisty. To je důvod, proč prezident Trump vyhlásil v USA výjimečný stav. Díky tomu jsou a budou globální kabalisté a členové chazarská mafie souzeni před vojenskými soudy. 

Co myslíte, budou na Guantanámu „ubytováni“ také někteří čeští členové justiční mafie, exekutorské mafie, mafie uvnitř policie, čeští politici a někteří údajní miliardáři, kteří plní roli bílých koní? Stejná otázka platí i pro Slovensko. Připomínám, že dle Společnosti Bílého Draka bylo podáno 10.000 žalob po celém světě a Ministerstvo obrany USA investovalo 500 mil. dolarů na rozšíření věznic a posílení řad vojenské policie. 

Níže uvedený právní předpis je pouze v anglickém jazyce. 

 

California Law Review

Volume 12 | Issue 3 Article 1

March 1924

Jurisdiction of Military Tribunals in the United

States over Civilians

L. K. Underhill

Follow this and additional works at: http://scholarship.law.berkeley.edu/californialawreview

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Recommended Citation

L. K. Underhill, Jurisdiction of Military Tribunals in the United States over Civilians, 12 Cal. L. Rev. 159 (1924).

Available at: http://scholarship.law.berkeley.edu/californialawreview/vol12/iss3/1

California Law Review

VOL XII MARCH, 1924 Number 3

Jurisdiction of Military Tribunals in the

United States Over Civilians

CONTINUED FROM JANUARY ISSUE

II.-M .ITARY GOVERNMENT.

Returning to the opinion of Mr. Chief Justice Chase in Ex parte

Milligan, there is, under the Constitution, a second kind of military

jurisdiction, „to be exercised in time of foreign war without

the boundaries of the United States, or in time of rebellion or civil

war within states or districts occupied by rebels treated as belligerents;

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.““‚ 5 Ordinarily in our history

this jurisdiction has been exercised on foreign soil, during a formally

declared war; but „when the regular course of justice is interrupted

by revolt, rebellion, or insurrection, so that the Courts of Justice

cannot be kept open, ciil war exists and hostilities may be prosecuted

on the same footing as if those opposing the government were

foreign enemies invading the land.““The courts are bound by

the determination of the President that civil war exists.“ 7

„Territory is considered occupied when it is actually placed under

the authority of the hostile army.““48 „The authority of the legitimate

power having in fact passed into the hands of the occupant,

the latter shall take all measures in his power to restore, and insure,

as far as possible, public order and safety, while respecting, unless

absolutely prevented, the laws in force in the country.““ 9 Accordingly,

where possible, the occupant maintains the local courts in

24 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 141.

248 The Prize Cases (1862) 67 U. S. (2 Black) 635, 667.

147 The Prize Cases, supra, n. 146.

248 Art. 42, Annex to Hague Convention No. IV of Oct 18, 1907.

149 Id., Art. 43.

12 CALIFORNIA LAW REVIEW

their operation. 50 But where this is impracticable, the occupant

may establish a government of his own, not only on foreign soil

but in the occupied territory of a belligerent rebel.“5‚ The government

as instituted does not depend on the Constitution of the invader,

but on the laws of war,1 2 and the jurisdiction and authority of

tribunals created by the conqueror depends upon his discretion.“‚

During the Civil War, the President or military commander

appointed, under authority of the laws of war, courts variously

designated. The so-called Provost Courts, which ordinarily exercised

the functions of Police Courts, when so empowered by the

commander in the field, took cognizance of important civil actions.“‚

In The Grapeshot‘ 55 and in Burke v. Miltonberger’50 the authority

of the Provisional Court to entertain a case in admiralty, and a

civil action, respectively, was upheld by the Supreme Court of the

United States, while United States v. Reiter‘5 7 was a trial for

murder. In Leitensdorfer v. Webb 58 the authority of a Circuit

Court established by military power on Mexican soil to contiriue

its functions after the cession of the territory, but before organization

of a civil government, was upheld. Here it may be noted that

though we acquired the island of Guam in 1899, Congress has never

seen fit to abolish the military government thereof.

While these courts are civil in appearance, they are nevertheless

established by military authority and are in reality military

tribunals. 9 Usually they have dealt with matters normally under

the jurisdiction of the local courts. But the fact of the occupation

brings into existence a class of offenses against the safety of the

invading army, which cannot arise in time of peace. These are

generally denominated offenses against the laws of war. On

expressly recognized by the Hagne Convention is espionage.‘ 6

Among those recognized by our Rules of Land Warfare are: using

forbidden weapons, killing wounded, refusal of quarter, ill-treatment

of prisoners, breach of parole, abuse of flag of truce or of the Red

15o Rules of Land Warfare, U. S. War Dept., par. 299.

151 Texas v. White (1868) 74 U. S. (7 Wall.) 700; U. S. v. Reiter (1865)

Fed. Cas. No. 16,146, 4 American Law Register (N.S.) 534.

?5R utledge v. Fogg (1866) „43 Tenn. 554, 91 Am. Dec. 299.

153 Heffernan v. Porter (1869) 46 Tenn. 391, 98 Am. Dec. 459.

154Mechanics and Traders Bank v. Union Bank (1874) 89 U. S. (22

Wall.) 276.

’55 (1869) 76 U. S. (9 Wall.) 129.

16 (1873) 86 U. S. (19 Wall.) 519.

257 Supra, n. 151.

1s (1857) 61 U. S. (20 How.) 176.

159 Handlin v. Wicldiffe (1873) 79 U. S. (12 Wall.) 173.

160 Art. 29, Annex to Hague Convention No. IV of Oct. 18, 1907.

JURISDICTION OF MILITARY TRIBUNALS

Cross flag, use of civilian clothing on the battlefield, poisoning wells,

and pillage. The foregoing may be committed by members of the

enemy’s armed forces. 61 Others peculiar to civilians are: committing

hostilities without having acquired the belligerent character,162

war treason,’1 3 war rebellion,‘ 6‚ highway robbery and war piracy,165

acting as armed prowlers or marauders, 66 and miscellaneous

offenses against regulations promulgated by the occupaiit.167

In some cases jurisdiction over the less serious of these offenses has

been granted to Provost Courts, as in the area occupied by the

American Forces in Germany during the World War. 68 In general,

however, we have not conferred this jurisdiction on these courts,

but on the military commission.

On the continent of Europe these offenses appear to be handled

by the court-martial. This has also been true in the British service.

But though our system of courts-martial was derived from the

British, there is a fundamental difference in the systems; the British

courts were established by royal commission to supplement, and

later to supersede, the Curia Militaris, or Court of the Constable and

Marshal.8 9

Though Parliamentary sanction for courts-martial was granted

by the statute 1 Win. & M. s. 1 c. 5, and by more comprehensive

later enactments, nevertheless the war-time authority of British

courts-martial abroad may still depend in part on royal order.Y6

In our service the jurisdiction of our earliest courts-martial was

derived from Resolves of the Continental Congress. That body

promulgated Articles of War in 1775 and again in 1776. The latter

Articles‘ 7‚ are almost an exact copy of the British royal Articles of

1774 ;172 where the name of Congress appears it is substituted in

ten places for the British Crown or its ministers and only once for

Parliament; and as Congress in the Declaration of Independence

contended that the jurisdiction of Parliament was „foreign to our

Constitution and unacknowledged by our laws,“ and indicted the

161 Rules of Land Warfare, par. 366.

‚162 Id., par. 369.

163 Id., par. 372.

164 Id., par. 370.

165 Id., par. 371.

166 Id., pars. 373, 374.

167 Id., par. 375.

168 Smith, Military Government, 36.

192 Grose, Military Antiquities, 54, 86 et seq.

1T0 18 Law Quarterly Review, 153.

171 (Sept. 20, 1776) 5 Journal of the Continental Congress, 788; Davis,

Military Law of the United States, Appendix B.

172 Davis, Military Law of the United States, Appendix B.

12 CALIFORNIA LAW REVIEW

British king for giving assent to Parliamentary acts of „pretended

legislation,“ it is safe to assume that the Continental Congress

deemed itself the successor of the British Crown in a purely executive

union of thirteen legislatively independent states, and that the American

Articles of 1776 were therefore an executive and not a legislative

act. When the Articles of Confederation were adopted July 9,

1778, the United States in Congress assembled found itself vested

with mixed executive and legislative powers; among these was the

power to make „rules for the government of the land and naval

forces“. 73 When the Constitution was adopted, however, there

was a sharp segregation of executive and legislative powers; the

President became commander-in-chief of the Army and Navy,7

while the power to „make rules for the government and regulation

of the land and naval forces“ was definitely placed in the legislative

powers of Congress.‘75 One of the earliest acts of Congress was

to continue in force the then existing Articles of War. 78

So while before the Confederation our courts-martial may have

exercised a customary jurisdiction under the laws of war, since

no such jurisdiction was granted them by the Articles in force under

the Confederation or Constitution, they early ceased to exercise such

jurisdiction. Further, under the Constitution they were creatures

of statute, and no President or military commander could grant

them such jurisdiction. In 1818, General Jackson, invading Florida

to punish the depredations of certain Indians, tried two British subjects

by court-martial and carried the sentence of death into execution.

This extension of jurisdiction was the subject of a debate

in Congress, and was generally held to be illegal. In 1847, General

Scott found himself unable adequately to punish soldiers of his

command in Mexico for crimes ordinarily cognizable by the civil

courts, as they were not covered by any Articles of War; and at

the same time he found himself unable to punish natives for such

offenses against his forces. He therefore enumerated certain

offenses, and established what he called „martial law“ as a „supplemental

code in, and about, all cities, towns, camps, posts, hospitals,

and other places which may be occupied by any part of the forces

of the United States, in Mexico, and in, and about, all columns,

173 Articles of Confederation, Art. IX.

274 U. S. Const., Art. II, § 2.

175 1d., Art. I, § 2.

78 Act of Sept. 29, 1789, 1 U. S. Stats. at L. 96.

JURISDICTION OF MILITARY TRIBUNALS

escorts, convoys, guards and detachments, of said forces, while

engaged in prosecuting the existing war in, and against the said

republic and while remaining within the same“. He then provided

that the enumerated crimes

„.. . whether committed: 1. By any inhabitant of Mexico,

sojourner or traveler therein, upon the person or property of any

individual of the United States forces, retainer or follower of

the same; 2. By any individual of the said forces, retainer or

follower of the same, upon the person or property of any inhabitant

of Mexico, sojourner or traveler therein; or 3. By any

individual of the said forces, retainer or follower of the same

upon the person or property of any other individual of the said

forces, retainer or follower of the same-shall be duly tried

under the said supplemental code.

„10. For this purpose it is ordered, that all offenders, in the

matters aforesaid, shall be promptly seized, confined and reported

for trial, before military commission:“1

This was the genesis of the military commission. In. the Civil

War it was used for the trial of two classes of offenses, committed

whether by civilians or by military persons, viz., I. Violation of the

laws of war. II. Civil crimes, which, because the civil authority is

superseded by the military and the civil courts are suspended, cannot

be taken cognizance of by the ordinary tribunals.“8 It might take

cognizance of offenses, committed during the war before the initiation

of military government but not then brought to trial . 79

The jurisdiction might be exercised up to the declaration by competent

authority of the termination of the war status.8 0 During the

Civil War, some jurisdiction was conferred by statute on these

tribunals, ‚but with the exception of the provision relating to spies

these statutes are not now in force l During the Spanish War the

military commission was used on foreign soil, and its jurisdiction

over civilians between the time of the signature of the peace treaty

and the ratification was upheld in Ex parte Ortiz. 82 This tribunal

was again established in Germany by Orders No. 1, Officer in Charge

of Civil Affairs in Occupied Territory, A. E. F., December 18, 1918,

for the trial of inhabitants offending against the laws of war or the

military government.

’77 General Orders, 267, Headquarters of the Army, Sept. 17, 1847. 178 Dig. Ops. J. A. G. (1912) p. 1067.

179 Loc. Cit.

180 Id., p. 1068.

181 LOc. cit.

182 (1900) 100 Fed. 955.

12 CALIFORNIA LAW REVIEW

Meanwhile, by Act of March 3, 1863 (later incorporated as Article

of War 58 of the Code of 1874),183 jurisdiction over soldiers in

time of war for the more.serious common-law crimes was conferred

on courts-martial; and this jurisdiction has been amplified and incorporated

in the later codesI s

In addition, by Act of March 2, 191318r

and again by Act of August 29, 1916186 and Act of June 4, 1920, 81

general courts-martial were given jurisdiction over persons who

by the laws of war were subject to trial by military tribunals,

and by the two latter acts military commissions were specifically

given jurisdiction over the offenses of dealing in captured

or abandoned property, by any person subject to military law,1 8 of

relieving, corresponding with, or aiding the enemy,18 9 and of being

found lurking or acting as a spy.90 In both statutes it was also

provided (words italicized appearing in the Act of June 4, 1920

only, bracketed words in the Act of August 29, 1916 only):

„Article 15. Jurisdiction not exclusive.-The provisions of

these articles conferring jurisdiction upon courts-martial shall not

be construed as depriving military commissions, provost courts.

or other military tribunals of concurrent jurisdiction in respect of

offenders or offenses that by statute or by the law of war may

be [lawfully] triable by such military commissions, provost

courts, or other military tribunals.“

Jurisdiction of military tribunals of one sort or another in hostile

occupied territory of a belligerent, whether foreign enemy or

insurgent or hostile Indian tribe‘9 ‚ is therefore undoubted. The

jurisdiction extends over civilians, whether hostile or neutral,9

and „the law of war, like the criminal law regarding other offenses,

makes no difference on account of the difference of sexes concerning

the spy, the war traitor, or the war rebel.“‚913

183 12 U. S. Stats. at L. 257, 284, 736, incorporated in U. S. Rev. Stats.

§ 1342.

184 Act of Aug. 29, 1916, ch. 418, § 3, 39 U. S. Stats. at L. 650, U. S.

Comp. Stats. (1918 ed.) §§ 2308a, 2308a (1)-(121), 9 Fed. Stats. Ann. (2d ed.)

1243. Act of June 4, 1920, ch. 2, supra, n. 19.

18537 U. S. Stats. at L. 722, U. S. Comp. Stats. (1918 ed.) § 2308a

(8)-(41),.9 Fed. Stats. Ann. (2d ed.) 1256.

28 Supra, n. 184.

187 41 U. S. Stats. at L. 787, U. S. Comp. Stats. (1923 Sulpp.) § 2308a, Fed.

Stats. Ann (1920 Supp.) 330.

188 Art War 80.

289 Art. War 81.

190 Art. War 82.

191 Holmes v. Sheridan (1870) Fed. Cas. No. 6644, 1 Dill, 351.

192 Rules of Land Warfare, par. 428.

293 Gen. Orders, 100, Headquarters of the Army, 1863, Art. 102.

JURISDICTION OF MILITARY TRIBUNALS

III. MARTIAL LAw.

We are now ready to consider the third kind of military jurisdiction

described by Mr. Chief Justice Chase. He says that this „is to

be exercised in time of invasion or insurrection within the limits of

the United States, or during rebellion within the limits of states

maintaining adhesion to the National Government, when the public

danger requires its exercise. . . . [it] may be denominated martial

law proper, and is called into action by Congress, or temporarily,

when the action of Congress cannot be invited, and in the case of

justifying 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 safety and private

rights.“‚“‚

While the above classification is generally accepted, the statement

as to the manner in which martial law can be called into action, and

as to the jurisdiction of military tribunals thereunder was dictum in

a dissenting opinion, and has not established the law.

Some confusion results from a study of the authorities, by reason

of the fact that the term „martial law“ is not always used in the

same sense. In the British usage it includes both military government

and martial law as defined by Mr. Chief Justice Chase. In

some cases it is confused with military law. Sir Matthew Hale says:

„First, that in truth and reality it is not a law, but something

indulged, rather than allowed as a law. The necessity of govern-

.ment, order, and discipline in an army, is that only which can

give these laws a countenance; quod enim necesstas cogit defendi.

„Secondly, this indulged law, was only to extend to the members

of the Army, or those of the opposite army, and never was

so much indulged as intended to be exercised upon others . . .

„Thirdly, that the exercise of martial law, whereby any

person should lose his life, or member, or liberty, may not be

permitted in time of peace, when the king’s courts are open for

all persons to receive justice according to the laws of the land.‘ 95

And again he says, „that regularly, when the king’s courts are

open, it is a time of peace in judgment of law“.9 These passages

are cited with approval by Blackstone, 97 who further regrets that,

though express legislative sanction had been given for the exercise

294 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 142, 18 L. Ed. 281.

195 Hale, Common Law, 42.

296 1 Hale, Pl. Cr. 347.

19 1 BI. Comm. 413.

12 CALIFORNIA LAW REVIEW

of „martial law“ in capital cases, nevertheless Parliament still permitted

the king to denounce and fix the penalties for less serious

offenses committed by soldiers. Blackstone admitted that in view

of 1 Win. & M. s. 2 c. 2, „martial law“ could extend to soldiers in

time of peace. Both Hale and Blackstone were, then speaking of

„military law“190 — a military law which was „indulged, rather than

allowed as a law,“ but which was embodied in executive articles of

war dating back at least to the reign of Richard I (see the Articles

of various monarchs in 2 Grose, Military Antiquities); and which

Was first administered by the Court of the Constable and Marshall“

under customary authority as restricted by 8 Ric. 2, c. 5; 13 Id., c. 2;

and 1 Hen. 4, c. 14,2o‘ later by the Court of the Marshal;20± and

later by the court of war or court-martial under royal commission. 20 2

It appears, however, that from time to time attempts were made

to extend this jurisdiction beyond the army. Hale informs us that

Edmund of Kent“‚ and Thomas of Lancaster 2′ were taken in arms

against the king and condemned by a sort of military court, but that

their attainders were reversed by Parliament in 1 Edw. III, „for the

reason that no man ought to be adjudged to death for treason or for

any other offense without being arraigned and put to answer.“

Again we find the term in its proper sense used in the Petition

of Right of 3 Car. I, wherein it was prayed that no commission

should issue in England to proceed according to martial law. In

Grant v. Gould, 205 however, the term is used in the sense of „military

government“ or „martial law,“ as distinguished from „military law,“

and it was so used in Marais v. General Officer.20

6

Early cases in the United States exhibit similar confusion. The

case of Smith v. Shaw

7 uses the term in the sense of military

authority exercised in the immediate vicinity of the military forces,

in time of war, over spies; in other words, probably in the sense of

„military law“. In a number of cases it is used in the sense of

2s 8 Ops. Atty. Gen. 366.

199 1 Grose, Military Antiquities, 216, 227; 2 Id., 53.

200 2 Hawkins, P1. Cr. 12.

2012 Grose, Military Antiquities, 54, 86 et seq.; contra, 3 BI. Comm. 103;

Hale, Common Law, 40; 7 Mod. 127.

2022 Grose, Military Antiquities, 86 et seq., 124, 126, 137, 152.

203 Hale, Common Law, 42.

2041 Hale, P1. Cr. 347.

205 (1792) 2 Hen. Blackst. 99.

205 [1902] A. C. 109, 71 L. J. P. C. 42, 85 L. T. 734, 50 W. R 273, 18

T. L. R. 185.

207 (1815) 12 Johns. 257, 5 N. Y. Com. Law. Rep. 383.

166 ,

JURISDICTION OF MILITARY TRIBUNALS

„military government,“ e.g., United States v. Diekelman, 08 Winter v.

Dickman,209 Jeffries v. State,2 10 Kimball v. Taylor 2 11 In many cases,

however, it is used conformably to the classification of Mr.

Chief Justice Chase.

The cases are not in accord, however, as to just what authority

exercised in the home territory constitutes martial law. Some consider

that it exists when the privilege of the writ of habeas corpus

is suspended, or -when the militia is called forth to enforce the laws

of the Union, or when the governor, pursuant to the provisions of

the State Constitution, declares that a state of insurrection exists

and sends in the militia to suppress the same. In Luther v. Borden212

the court, in upholding the power of the State of Rhode Island to

declare martial law, referred only to a resort to the laws and usages

of war, no more force being used than might be necessary, the parties

being answerable for excesses. On the other hand, the courts in

some cases have used the term to describe a condition of affairs in

which military forces either lawfully or unlawfully exercise jurisdiction

over matters usually confided to the judiciary. As the object

of this inquiry is to discover the extent of the jurisdiction of military

tribunals over civilians, we shall therefore omit from consideration

those cases which uphold the legality of „martial law,“ but which do

not decide anything bearing on the jurisdiction of military tribunals.

We have already noted that military tribunals may function

practically without restriction in hostile occupied territory-whether

that territory be that of a foreign foe or of a rebel treated as a

belligerent. May they function similarly in parts of the United

States not in belligerent rebellion? This question involves the following

considerations: What is the difference between a mere insurrection

and a belligerent rebellion? How is the existence of one

or the other condition determined? Under what conditions may the

guarantees of the Constitution against military trials be set aside

in parts of the home soil which are not in belligerent rebellion?

There are various decisions describing the difference between a

belligerent rebellion and a mere insurrection. Perhaps the following

quotations will serve to give an adequate idea:

„Several of these states have combined to form a new confederacy,

claiming to be recognized by the world as a sovereign

208 (1875) 92 U. S. 520, 23 L. Ed. 742.

209 (1868) 42 Ala. 92.

210 (1866) 39 Ala. 655.

211 (1874) Fed. Cas. No. 7775, 2 Woods, 37.

212 (1849) 48 U. S. (7 How.) 1, 12 L. Ed. 581.

12 CALIFORNIA LAW REVIEW

state …. It is no loose, unorganized insurrection, having no

defined boundaries or possessions. It has a boundary marked by

lines of bayonets and which can be crossed only by force; south

of this line is enemies‘ territory; because it is claimed and held in

possession by an organized, hostile, and belligerent power.“21 s

„When the regular course of justice is interrupted by revolt,

rebellion, or insurrection, so that the Courts of Justice cannot

be kept open, civil war exists and hostilities may be prosecuted

on the same footing as if those opposing the Government were

foreign enemies invading the land.“214

„There is a very great distinction between insurrection and

war. It is this: war is an act of sovereignty, real or assumed;

insurrection is not; war makes enemies of the inhabitants of

the contending states; but insurrection does not put beyond the

pale of friendship the innocent in the affected district. War

creates the rights and duties of belligerency, which to a mere

insurrection are unknown. Doubtless an insurrection may

become war, as was the case with the Great Rebellion; but it

does not become so in the legal sense until the rebellious party

assumes legal form.“21 5

If, then, a state of war is different from a state of insurrection,

by whom may a state of civil war be recognized? The courts follow

the decisions of the political branches of the Federal government

on this question.218 Whether or not the political branches of a

State government can recognize a condition of civil war, so as to

accord to the insurrectionary party belligerent rights, and so as

to itself acquire the power to set aside the guarantees of the State

Constitution in.th e affected region, is a disputed question. The

Federal Constitution provides:

„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.“21

That the term „invaded“ does not include insurrection or other

domestic violence is indicated by the use of the terms, „insurrections“

and „invasions“ side by side in Article I, section 8, of „rebellion“

and „invasion“ in section 9, and of „invasion“ and „domestic

violence“ in Article IV, section 4. The „imminent danger“ under

which a State may engage in war is not defined, but some help

23 The Prize Cases (1862) 67 U. S. (2 Black) 635, 673.

2

1

4 The Prize Cases (1862) 67 U. S. (2 Black) 635, 667.

215 Ex parte McDonald (1914) 49 Mont. 454, 474, 143 Pac. 947, L. R. A.

1915B 988, Ann. Cas. 1916A 1166.

218 Sutton v. Tiller (1869) 6 Cold. (Tenn.) 593, 98 Am. Dec. 471; U. S.

v. One Hundred and Twenty-nine Packages (1862) Fed. Cas. No. 15,941;

The Prize Cases (1862) 67 U. S. (2 Black) 635.

217 U. S. Const., Art. I, § 10.

JURISDICTION OF MILITARY TRIBUNALS 169

may be obtained from the history of the section above quoted. It

first appeared in the Articles of Confederation, where it read:

„No State shall engage in any war without the consent of

the United States in Congress assembled, unless such State be

actually invaded by enemies, or shall have received certain advice

of a resohltion being formed by some nation of Indians to invade

such State, and the danger is so imminent as not to admit of a

delay till the United States in Congress assembled can be

consulted; . . .“218

Unless, then, it be held that the Constitution has materially

amplified the war-making powers of the states over what they were

under the Confederation, it would appear that no state may transmute

a domestic disturbance or insurrection into a war, so as to

acquire for itself belligerent powers in the disturbed area.2 1 9 The

statement in Luther v. Borden220 that the State of Rhode Island

resorted to the rights and usages of war during Dorr’s Rebellion

does not seem to have been necessary to the decision in the case. In

Kentucky it has been held that the Federal government is the only

sovereign in this country for recognizing belligerent rights.22

1 In

West Virginia, however, it has been held that the governor may

declare that a state of war exists; that such declaration is reviewable

only by the legislature under impeachment proceedings; and that

during such a state of war the military forces of the state may, under

the governor’s orders, exercise belligerent powers in the affected

area, including the right to try civilians by military commission, for

offenses committed in an interim of peace between two periods of

„war“. 222 The court arrived at this decision in spite of the following

provisions of the State Constitution.

„The privilege of the writ of habeas corpus shall not be

suspended. ‚228

„…. no citizen, unless engaged in the military service of the

State, shall be tried or punished by any military court, for any

offense that is cognizable by the civil courts of the State.“22

„The provisions of the Constitution of the United States, and

of this State, are operative alike in a period of war as in time

218 Articles of Confederation, Art. VI.

219 See Ballantine, Military Dictatorship in California and West Virginia,

1 Ca2l2if0o rnia Law Review, 413, 424. Supra, n. 212.

221 Price vs Poynter (1866) 1 Bush (Ky.) 387; Bell v. L. & N. R. R. Co.

(1866) 1 Bush (Ky.) 404.

222 State ex rel. Mays v. Brown (1912) 71 W. Va. 519, 77 S. . 243,

45 L. R. A. (N. S.) 996, Ann. Cas. 1914C 1; Ex parte Jones (1913) 71 W. Va.

567, 77 S. F_ 1029,45 L. R. A. (N. S.) 1030, Ann. Cas. 1914C 31.

22 W. Va. Const, Art 3, § 4.

224 Id., Art. 3, § 12.

12 CALIFORNIA LAW REVIEW

of peace, and any departure therefrom, or violation, thereof, under

the plea of necessity, or any other plea, is subversive of good

government, and-tends to anarchy and despotism.“ 225

This disregard of the Constitution appears to be logical, if we

grant the premise that the state may engage in civil war, as does

also the decision that this jurisdiction is dependent on military

occupation in actual war ;226 but the disregard in the Mays case of

the fact that civil courts were open in unaffected parts of the same

county, and in the Jones case of the fact that petitioner was brought

from an unaffected district into the military zone for trial, can not

be so easily reconciled with our theory of government.

It appears settled, then, that the Federal government, through

its political branches, may recognize the existence of civil war in a

legal sense in a defined area, and may conduct military government

therein. We must leave it as an unsettled question whether the

political branches of a state government may do the same thing.

We have now to consider under what conditions military trials of

civilians may be held in parts of the country retaining their

allegiance, or, in other words, whether or not such trials may be

held under „martial law“.

The Constitution of the United States gives little help on this

question. The term „martial law“ is not mentioned, nor is any

exception made to the prohibitions of the Fifth and Sixth amendments

other than the one discussed under the head of „military law“.

Power is granted to suspend the writ of habeas corpus „when in

cases of rebellion or invasion the public safety may require it.

22f

This suspension is a legislative function.228 The President can not

suspend the privilege of the writ without the authority of Congress.

229 The writ itself is not suspended, but issues as a matter of

course, and the court determines whether the petitioner comes within

the terms of the suspension. 20 But this power of suspension does

not legalize an unlawful arrest or imprisonment,231 nor can Congress

deprive anyone of other remedies therefor.2 32

Congress cannot suspend the issuing of the writ by a state

225 W. Va. Const, Art. I. § 3.

226 Ex parte Lavinder (1921) 88 W. Va. 713, 108 S. E. 428.

227 U. S. Const., Art. I, § 9.

228 Ex parte Merryman (1861) Fed. Cas. No. 9487, Taney, 246.

229Ex parte Benedict (1862) Fed. Cas. No. 1292; In re Kemp (1863)

16 Wis. 382; 8 Ops. Atty. Gen. 372.

230 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 18 L. Ed. 281.

231 Griffin v. Wilcox'(1863) 21 Ind. 383.

232 Johnson v. Jones (1867) 44 Ill. 142.

JURISDICTION OF MILITARY TRIBUNALS

court,28 nor does the restriction of Article I, section 9 of the Federal

Constitution, apply to the states.234 The constitutions of various

states, however, contain similar provisions. 235

In some few cases state constitutions authorize the governor to

declare martial law. For example, in New Hampshire, „No person

can in any case be subjected to law martial or to any pains or

penalties by virtue of that law, except those employed in the army

or navy, and except the militia in actual service, but by authority

of the legislature.“ 2 6 Again, „. . . the governor shall not at any

time hereafter . . . grant commissions for exercising the law martial

in any case without the advice and consent of the council.123

1

Provisions similar to the former appear in the constitutions of

Massachusetts 2 8 and of South Carolina.239 The Constitution of

Rhode Island provides, „… . and the law martial shall be used and

exercised in such cases only as occasion shall necessarily require.“240

The Organic Act of the Territory of Hawaii provides, „That the

governor . . . may, in case of rebellion or invasion, or imminent

danger thereof, when the public safety requires it, suspend the

privilege of the writ of habeas corpus, or place the Territory, or any

part thereof, under martial law until communication can be had

with the President and his decision thereon made known.“24‚ The

constitutions of the other states and territories appear to be silent

on the subject. A declaration of martial law in conformity with

state law does not conflict with the Federal Constitution.242

Martial law may, then, exist under the Constitution in New

Hampshire, Massachusetts, South Carolina, Rhode Island, lanl

Hawaii, though in only one of them is there an adjudication to the

effect that the declaration warrants trial of civilians by military

tribunals. In the old Republic of Hawaii, whose Constitution contained

a provision similar to the one above quoted, it was held that

233 Griffin v. Wilcox, supra, n. 231.

2 34 Gasquet v. Lapeyre (1916) 242 U. S. 367, 61 L. Ed. 367, 37 Sup. Ct.

Rep. 165.

235 E. g., Cal. Const, Art. I, § 5.

2-6 N. H. Const, Art 34.

237N. H. Const, Art. 50.

238 Mass. Const., Pt I, Art. XXVIII.

-9 S. C. Const., Art. I, § 25.

240 R. I. Const., Art. I, § 18.

241T. H. Organic Act, § 67, Act of Apr. 30, 1900, ch. 339, § 68, 31 U. S.

Stats. at L. 153, U. S. Comp. Stats. (1918 ed.) § 3708, 3 Fed. Stats. Ann.

(2d ed.) 510.

242Luther v. Burden, supra, n. 212; Despan v. Olney (1852) Fed. Cas.

No. 3, 822, 1 Curt. 306; U. S. ex rel. Seymour v. Fischer (1922) 280 Fed. 208;

U. S. ex rel. McMaster v. Wolters (1920) 268 Fed. 69.

12 CALIFORNIA LAW REVIEW

when the President of the Republic in his discretion declared martial

law he might authorize trials by military commission, and that such

trials might continue even after the courts were open if the state

of war still continued.24 3 Such trials do not contravene the Federal

Constitution if in conformity with State law.2 4

4

The Hawaiian case, however, is not decisive as to trials under

the authority of the United States, nor under the authority of states

whose constitutions do not provide for any suspension of ordinary

law or of the ordinary civil rights. In these jurisdictions, if such a

power exists, it must be because of a law superior to the Constitution.

Is there such a law?

Little help can be secured from English cases. In Grant v.

Gould 24“ a dictum of the court stated that martial law had been

exploded in England for over a century. Yet in Marais v. General

Officer,24

6 martial law was allowed to exist in time of foreign war

in a colony where the courts were open. Further, as Parliament is

not subject to the inhibitions of a written constitution, it could

doubtless establish trial by martial law if it so pleased. It appears

to have done so in the recent Defense of the Realm Act.24 7

In considering the American cases on this subject we are at

once struck by the large number of decisions in which the court,

by way of dictum, asserted that martial law might exist, and military

trials be held, under circumstances other than those before the court,

and the small number of decisions on the precise point. This

discussion will, as far as possible, avoid reference to the dicta.

At the outset, we find it clearly established by the leading case

of Ex parte Milligan 248 that even during civil war, and under

threatened invasion, in loyal territory where the courts are open

martial law cannot prevail, and persons not subject to military law

are not subject to trial by military tribunals. Not even a declaration

of martial law can abrogate the Constitution.249 The governor of‘

a territory cannot suspend the law and substitute military for civil

authority.50 The only cases directly to the contrary seem to be in

2 4 8

In re Kalanianole (1895) 10 Hawaii, 29.

24 U. S. ex rel. Seymour v. Fischer, supra, n. 242; U. S. ex rel. McMasters

v. Wolters, supra, n. 242.

245 (1792) 2 Hen. Blaekst. 99. 246Supra, n. 206.

247 4 and 5 Geo. V, c. 29. 248 Supra, n. 230.

249Johnson v. Duncan (1815) 3 Mart. 0. S. (La.) 530; Com. v. Palmer

(1866) 65 Ky. 570; Corbin v. Marsh (1865) 63 Ky. 193.

250 8 Ops. Atty. Gen. 374.

JURISDICTION OF MILITARY TRIBUNALS

In re Kalanianole,25 1 and Ex parte Vallandigham 52 The former,

however, turned on a provision in the Constitution of the Republic

of Hawaii, and the latter turned on a question of the jurisdiction

of the Supreme Court of the United States to issue a certiorari to

a military commission. The majority decision in the Milligan case

may be taken as settled law. In accord therewith are: In re Egan,2 53

in which it was held that a military commission could not try a

civilian for homicide in a rebellious state after the reestablishment

of civil government; Griffin v. Wilcox2 54 where it was held that

military authorities could not establish regulations where the courts

were open, and arrest civilians for violation. thereof; Smith v.

Shaw,255 where it was held that a military court could not try

civilians for treason; and Matter of Martin,25 6 where it was held that

crimes could not be tried by military tribunals outside the theater

of war.

But these cases are not decisive as to circumstances in which the

courts are closed, by an uprising not amounting to belligerency.

Can military courts assume jurisdiction of civilians in such cases?

The following cases appear at first glance to uphold the affirmative

of this proposition: In re Ezeta, 25

T Ex parte Mudd,258 United

States ex rel. Seymour v. Fischer,2 59 United States ex rel. McMaster

v. Wolters, 260 and State ex rel. Mays v. Brown.2 1 In the Ezeta case,

however, the court had before it the question of the jurisdiction of

military courts during a „state of siege“ in the Republic of Salvador,

and the decision turned on the law of that Republic which specifically

authorized such jurisdiction. In the Seymour and McMaster cases

the military court was appointed by State authority; the Federal

court in each case said that the governor had power by virtue of

his power to declare and suppress a state of insurrection, to declare

martial law and to order that civilians be tried by military tribunals;

the court in the Seymour case said that the sentence of a military

court did not expire with the termination of the condition of martial

law; but the reasoning confused military government with martial

2 1Supra, n. 243.

252 (1863) 68 U. S. (1 Wall.) 243.

253 (1866) Fed. Cas. No. 4303, 5 Blatchf. 319.

254 (1863) 21 Ind. 383.

20 (1815) 12 Johns. (N. Y.) 257.

256 (1865) 45 Barb. (N. Y.) 142.

257 (1894) 62 Fed. 972.

258 (1868) Fed. Cas. No. 9,899.

259 Supra, n. 242.

260 Supra, n. 242.

261 Supra, n. 222.

12 CALIFORNIA LAW REVIEW

law, and the actual decision of each case was something very different

from that indicated by the reasoning; the McMaster case

merely decided that a military trial under State authority did not

contravene the due process clause or the trial by jury clause of

the Federal Constitution, and the Seymour case decided that such

a trial under such circumstances did not contravene the due process

clause of the Federal Constitution provided it did not violate state

law. In the Mudd case, the court appears, from the reporter’s

syllabus, to have held that murder of the President in time of civil

war is triable by military commission, Unfortunately the case is

not reported at length, and it does not appear what question was

before the court, what was the status of the petitioner, whether he

was a principal or an accessory, or whether his act connecting him

with the murder was committed in hostile occupied territory. The

Mays case, as above noted, was decided on the theory that the

State can engage in civil war and can exercise belligerent powers

on the soil of the enemy; though the term „martial law“ was used

in the decision, the case is not authority on the question now under

discussion.

On the other hand, In Ex parte McDonald 2 2 the Supreme Court

of Montana held that, while the military forces of the State might,

in a state of insurrection, detain prisoners until it should be judged

safe to hand them over to the civil authorities, nevertheless the

power of the governor to suppress insurrection did not include the

power to abrogate the right of trial by jury, nor to authorize the

trial of civilians by military commission. In accord is Ex parte

Moore.

26 3

Of course, the McDonald case does not establish the law for the

whole United States. It may be that future decisions will clearly

uphold the, power of a state to engage in civil war, and exercise

belligerent powers within affected districts; if so, a sea-coast state

should have the right to establish a blockade of its ports which may

be in rebel control; contracts between inhabitants of loyal districts

and of disloyal districts might be suspended; all the inhabitants of

the former might be enemies of inhabitants of the latter; and neutrals

as well as citizens in the rebellious soil might be subject to trial by

military tribunals under the law of war. It may be that this doctrine

will be repudiated. If it is repudiated, and if a state may exercise

only sovereign, and not belligerent, rights, in a district in insurrec-

262 Supra, n. 215.

268 (1870) 64 N. C. 802.

JURISDICTION OF MILITARY TRIBUNALS 175

tion, even then it may be held that constitutional authority for martial

law is unnecessary; that salus populi is suprema Iez, and hence

superior to the Constitution; that with or without a formal declaration

of martial law the Executive authority may, where insurrection

in fact exists, dispense with trial by jury before the duly constituted

courts; and that the otherwise unconstitutional acts of the agents

of the government may not subsequently be reviewed by the courts.

Hitherto, however, the decisions have not gone that far. It may

well be questioned whether on principle they should go that far.

It is undoubtedly true that all the powers of sovereignty reside

somewhere in the state, except such as have been granted to the

Federal government or prohibited to the state in the Federal

Constitution. The power to suspend the Bill of Rights does not

appear (except as heretofore noted) to have been granted to any

agency of the Federal government or to any agency of any state.

May not the power to establish martial law remain dormant in the

people, to be resumed by them at will by a constitutional amendment?

May not the people determine in advance what shall be their

,supremlae x? Can it be maintained that the Executive of a state

may govern on the assumption that tfie Constitution has been set

aside, when, but for the Constitution, he himself has no official

existence? „The Constitution of the United States is a law for

rulers and people, equally in war and in peace, and covers with the

shield of its protection all classes of men, at all times and under all

circumstances.“126‚ „If a subject be taken in rebellion, he is to be

tried afterwards and by the common law.125 „What the Constitution

prohibits, war cannot legalize. ’28

If it be agreed that jurisdiction under martial law cannot be

established as a matter of law on the soil of any sovereignty with

whose constitution it is in conflict, it does not necessarily follow

that every act done by officers of such government in suppression

of insurrection which fails to conform to the provisions of law

relating to personal liberty is criminal or actionable. In Kentucky,

it is true, it is held that members of the militia when lawfully called

into service by the governor have only the powers of peace

officers. 8 7 This appears to be the view of Professor H. W. Ballan.

tine, who says: „As a matter of common law, therefore, the powers

264 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 120, 18 L. Ed. 281.

26 Ex parte McDonald, 49 Mont 454, 468, supra n. 215, quoting from a

debate in Parliament on the Petition of Right.

w8eC orbin v. Marsh (1865) 63 Ky. 193, 195.

287 Franks v. Smith (1911) 142 Ky. 232, 134 S. W. 484.

12 CALIFORNIA LAW REVIEW

of the military would seem to be preventive, defensive, and ministerial,

with no authority to issue orders to citizens generally, or to

punish those who disobey commands or commit offenses.““

Except for the last clause, however, this does not seem to be in

accord with the general trend of decisions. In the Federal, and in

perhaps all of the state Constitutions, there are provisions which

either expressly or impliedly authorize the Executive to use the

military forces to enforce the law. These forces may at times have

to take drastic action. Aside from those cases in which state laws

provide immunity from prosecution or action for acts done in pursuance

of militia duty, there are numerous cases in which the courts

have refused redress to the party complaining of such acts. In

Ex parte Field 2 9 a marshal who, by direction of the President,

disobeyed a writ of habeas corpus issued in a state which was not

in the theater of war was fined for contempt. In McCall v.

McDowell2 70 a subordinate officer obeying the order of his superior

to execute an unwarranted arrest in a state not in insurrection was

exonerated, while the superior was held liable in damages to the

party arrested. But in In re Boyle,271 and In re Moyer 272 and

Ex parte McDonald,2 7

3 the court refused to release on habeas corpus

a petitioner who was held by the military while engaged in suppressing

an insurrection. It appeared that the detention of the petitioner

was a necessary means of restoring order, and the order of the

governor that the writ be disregarded was held justified. In

Ex parte Moore274 while the court declined to express itself as to

whether the governor’s order was justified, it exonerated the military

officer who obeyed the governor and disobeyed the writ. In Moyer

v. Peabody275 the court held that detention of a prisoner arrested

during a state of insurrection without a warrant, by state authority,

did not violate the Fourteenth Amendment to the Federal Constitution,

there being no abuse of power. In the Boyle and Moyer cases

it appeared that. the governor had declared a state of insurrection.

The state courts held that they could not inquire into the existence

2685 Journal American Institute Criminal Law and Criminology, 740;

24 Yale Law Journal, 189, 212.

269 (1862) Fed. Cas. No. 4,761, 5 Blatchf. 63.

270 (1867) Fed. Cas. No. 8,673, Deady, 233, 1 Abb. (U. S.) 212.

271 (1899) 61 Idaho, 609, 57 Pac. 706.

272 (1904) 35 Colo. 159, 85 Pac. 190.

272 Supra, n. 215.

274 Supra, n. 263.

275 (1906) 148 Fed. 870, affirmed in (1909) 212 U. S. 78, 53 L. Ed. 410,

29 Sup. Ct. Rep. 235.

JURISDICTION OF MILITARY TRIBUNALS

of an insurrection, since in those states the constitution authorized

such a declaration by the governor, and made it a prerequisite to

the calling forth of the militia. They did, however, inquire into

the necessity of the detention, and decided the cases on the grounds

of necessity and not on the grounds of the governor’s declaration.

In Commonwealth ex rel. Wadsworth v. Shortall,178 where it did

not appear that a similar declaration was required, relator was held

,entitled to release on habeas corpus when charged with a homicide

committed under military orders while on duty as a militiaman in

suppressing an insurrection, the order being apparently lawful and

its issuance being apparently necessary. In re Fair,27 7 a homicide

committed by a Federal soldier without malice under orders which

were not plainly illegal was held to be not an offense against the

state (whatever may have been the responsibility of the officer

issuing the order). In Luther v. Borden7 8 a militiaman engaged in

suppressing insurrection was not liable for trespass in breaking and

entering plaintiff’s house and effecting an arrest. The rule in these

cases seems to be this: neither a military subordinate nor the

executive nor the legislature can assume to disregard the writ of

habeas corpus except as authorized by the Constitution, nor can

the executive or any military subordinate authorize arrests, searches,

or seizures by a mere declaration of a condition of affairs or of a

type of law paramount to the Constitution. But just as the individual

may justify trespass, or even homicide, in self defense on the ground

of necessity, so the agents of the state may justify what would otherwise

be tort or even crime on the ground of necessity in defense of

the state. The justification is not proclaimed as a matter of law,

but is a matter of fact in each case.2 79 It was in accord with this

doctrine that the Supreme Court of Montana held detention by

the military, in a given case, necessary and military trials

-unnecessary.8

With reference to the right and duty of defending the commonwealth

against its enemies, when there is war within the realm, Sir

Frederick Pollock says:

„First, it is not a matter of prerogative, but appertains to all

lawful men. Secondly, it is not specially vested in military

officers, though they may often be the most proper persons to

278 (1903) 206 Pa. 165, 55 Atl. 952.

277 (1900) 100 Fed. 149.

278 Supra, n. 212. 2 79 McLaughlin v. Green (1874) 150 Miss. 453. 2 80Ex parte McDonald, supra, n. 215.

12 CALIFORNIA LAW RE-VIEW

exercise it. Thirdly, its exercise requires to be justified on every

occasion by the necessity of the case.1281

If by „war“ he means „insurrection,“ he is fully in accord with

what appears to be the American doctrine. He further says:

„So-called martial law . . . is an unlucky name for the

justification by the common law of acts done by necessity for

the defense of the Commonwealth when there is war within

the realm.128 2

Tested in this light, it is difficult to see how trial of civilians in

the home territory by military commission under „martial law,“ can,

as a matter of fact be justified. The military forces, like peace

officers, may, to accomplish their lawful errand, find it necessary to

trespass upon property, to seize weapons, or to detain, or even to

commit homicide upon an insurgent in flagrante delictq; they may

have to go farther than peace officers may do, and refuse, for the

time being, to obey the order of a court to vacate the property, to

restore the weapons, or to free the prisoner; but it is difficult to see

how they can justify, on the grounds of necessity, an unlawful trial

and sentence of a prisoner already taken. If the prisoner is innocent,

he is not deserving of punishment; and he is entitled to have his

guilt or innocence determined in the forms prescribed by law. It is

the function of the military forces to hold the prisoner until order

is restored and he can be safely turned over to the civil authorities

for trial. Martial law prevents, but it does not punish.288

L. K. Underhill,

Major, Infantry, United States Army.

Philippine Islands.

28118 Law Quarterly Review, 152, 153.

282 Id. 156.

288 Contra, Birkhimer, Military Government and Martial Law, 525 et seq.