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ting the laws of war,” and various other acts of disloyalty; found guilty, and sentenced to be hung. At this time the civil courts were open, and Milligan filed a petition in the circuit court of the U. S. for the District of Indiana, to be brought before the court, and either turned over to the proper civil tribunal to be proceeded with according to the law of the land, or discharged from custody altogether. At the hearing of the petition in the Circuit Court, the opinions of the judges were opposed upon a number of questions, and these questions were certified to the Supreme Court of the United States under the provisions of an act of Congress.
The principal question in the case was as to the jurisdiction of the military commission. Upon this question five of the nine judges held,“ that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.
As necessity creates the rule, so it limits its duration ; for if this government is continued after the courts are re-instated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and jus
tice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be mere lawless violence.” 1
The minority of the court, while agreeing with the majority that the military commission had no jurisdiction in this particular case, understood the majority opinion to assert that it was not in the power of Congress to have given it jurisdiction. With this latter doctrine they refused to agree. They held that Congress, under its constitutional authority to raise and support armies, and to declare war, if not from its constitutional authority to provide for governing the forces, could call martial rule into action 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; and, furthermore, that it might be called into action temporarily, and in case of justifying peril, by the President at such times.
That the minority opinion expresses the true view of martial law in this country we cannot but believe. The decision of the court was given by the bare majority of one, and, therefore, does not carry the weight of most of its decisions.
14 Howard, p. 127.
* Among the manuscripts of the late Dr. Francis Lieber was found, after his death, one on the subject of Martial Law, written in the form of a note to the fifth and sixth articles of “ The Instructions for the government of the Armies of the United States in the field” (G. O. 100, 1863). After distinguish. ing between martial law in hostile countries and domestic martial law, he says,—" As to Martial Law at home, which may become necessary in cases of foreign invasion, as well as in cases of domestic troubles, it has full sway in the immediate neighborhood of actual hostilities. The military power may demolish or seize property, or may arrest persons, if indispensable for the support of the army, or the attaining of the military objects in view. This arises out of the immediate and direct physical necessity, as much so as the law of trespass is inoperative against those who forcibly enter a house in a. case of conflagration. This operation of Martial Law is not exclusive or es.
Congress, too, seems to have adopted the minority view, for in 1867, four months after this decision, it passed “an act to provide for the more efficient government of the rebel states,” empowering district commanders to substitute for the trial of all criminals military commissions in the place of the local courts.
A similar view has been taken in England. In the case of the Queen vs. Nelson and Brand, Lord ChiefJustice Cockburn concluded that the Crown had no authority, by virtue of its prerogative, to enforce martial law in any part of the realm where the laws of England prevail; but adınits that Parliament may call it into being and operation.s
General Observations. It will be seen that the Supreme Court uses the term martial rule instead of law. This conveys a better idea. If the civil courts are closed and military courts substituted, no fixed code of law takes ceptional. Any immediate physical danger, and paramount necessity arising from it, dispenses with the forms of law most salutary in a state of peace.
“The subject of the greatest difficulty connected with Martial Law is its existence in a country distant from the scene of military action, or in districts which are not in a state of insurrection. How far may it extend in point of geographical limits? How far may it extend in intrinsic action ? Can it be dispensed with under all circumstances ? How can people devoted to liberty limit its action so that it may not become a means of military despotism?
“It cannot be dispensed with under all circumstances, and if there were a law prohibiting it, it would break through the law in cases of direct and absolute necessity. The salvation of a country is like the saving of an individual life. It is paramount to all else.
“ It has been denied that the government has any right to proclaim martial law, or to act according to its principles, in districts distant from the field of action; or to declare it in larger districts than either cities or counties. This is fallacious. The only justification of martial law is the danger to which the country is exposed, and as far as the positive danger extends, so far extends its justification.”—(See pamphlet on Martial Law by Col. G. N. Lieber).
1 March 2d. * Charge of Lord Chief-Justice, London, 1867.
3 This is not the universally accepted doctrine in England, nor has it been carried out in practice. Acts of Parliament, in fact, recognize the right of declaring martial law as an “undoubted prerogative ” of the crown.
the place of the civil code, but the “ laws and usages of war," which are a part of the law of nations.
Whenever possible, martial law, in the case of individual offenders, should be carried out by military courts." A place, district, or country occupied by an enemy stands, .in consequence of the occupation, 'under martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law.?
In the event of martial law with us, one of the chief features will be the suspension of the privilege of the writ of habeas corpus. This was exemplified by the act of Congress of March 3, 1863, authorizing its suspension during the rebellion, throughout the United States, by the President.
After martial law has been proclaimed by the proper authority, the officers engaged in the military service of the state may lawfully arrest any one whom they have reasonable grounds to believe is engaged in insurrection or rebellion, and may forcibly enter and search premises where it is reasonable to suppose that such offenders are secreted. Without the power to do this martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purpose of oppression, or any injury willfully done to person or property, the party by whom, or by whose order, it is committed, would undoubtedly be answerable.»
I G. 0. 100, A, G. O., 1863, $ 12. Ibid, & I.
Opinion of the Supreme Court in Luther vs. Borden, 17 Howard, 46, citer in Scott's Digest, 378,
Martial law may apply to both civilians and soldiers, as was the case in Mexico, but our Articles of War now embrace most of the military and civil offenses, in time of war, when committed by soldiers, and make them cognizable by courts-martial; where an offense comes under a statute, military commissions cannot try soldiers.
Military Jurisdiction is therefore of two kinds first, that which is conferred by statute ; second, that which is derived from the common law of war. In the United States the jurisdiction conferred by statute is exercised by courts-martial ; that derived by the laws of war by military commissions.
Military Law may now be defined as that part of the law of the land relating to the government of the military forces, and having for its object military discipline.
The term “military forces” as here used includes the armies of the United States, Regular and Volunteer, and the Militia when called into the actual service of the United States. All these forces are subject to military law, and Congress has extended this law to some other classes of persons under certain prescribed circumstances.
Sources. Our military law is principally a statutory code, adopted under the constitutional power given Congress “ to make rules for the government and regulation of the land and naval forces." 4 It is, however, composed like the municipal law of a written and unwritten law, and derives its existence from the following sources :
1st. Statutes of Congress. Congress has passed frequent statutes since the first establishment of the government, for the regulation and government of the land
1 G.O. 100 A. G. 0. 1863, § 13. Rev. Statutes, $ 1342.
Ibid, Sections 1094, 1342, (45th, 46th and 63d Articles of War), 1343, 1360, 1961, 1621, 4824, 4835. For list of these persons, see Chapter IV.
4 Art. 1, § 8.