MILITARY AND MOB LAW, AND THE RIGHT TO ARMS
We now come to a field of legislation related to the early English
constitutional right to be protected from military law or molestation
by the army, and the corresponding right of protection of one's
person, or one's house, by force, if necessary.
The right of law, even as against the military, has been anticipated
in an early chapter; the right to try an officer, or even a soldier
obeying orders, in the ordinary tribunals, for homicide, or for
ordinary trespass, as when, in the Dorr rebellion in Rhode Island,
a company of militia invaded a woman's house.[1] The constitutional
principle against the quartering of soldiers upon private dwellings,
and the limitations to the military power caused by the strict
confinement of the use of the army to cases of invasion or
insurrection, have been added by American constitutions. But most
important of all is the supremacy of the common law; the grudging
permission of military law even to the army themselves only by
a temporary vote; for in England, the Mutiny Act must be passed
annually, and in the United States, appropriations for the army and
navy may not last over two years. It is these statutes alone that
make possible the very government of the army, the enforcement of the
contract of enlistment, and the condign punishment of deserters.
[Footnote 1: Martin _v_. Mott, 12 Wheaton, 19.]
For example, let us remember the Boston Massacre. Ten years before the
Revolution, some turbulent men, mostly negroes, started a riot against
British soldiers on what is now State Street (then King Street), and
under the orders of the commanding officer the soldiers fired, and two
or three men were killed. Yet although the colonies were already under
military occupation, and their courts and legislatures more than
unpopular with the home government, these British soldiers were tried
for manslaughter and murder, not in England, but in the ordinary
common-law courts of the Colony of Massachusetts. James Otis defended
them and they were acquitted. The fact that a monument to Crispus
Attocks, the negro, now stands on Boston Common, and that ten or
twelve years later the British flag was expelled from Boston to seek
refuge in New York, does not modify the significance of the incident.
Some years since in a Pennsylvania strike a small company of militia,
being attacked by a mob, were ordered to fire. They did so, and killed
one of the striking rioters. It was found out which private had fired
the fatal shot; he was indicted and tried for murder; and it was ruled
that the order of the commanding officer was no defence.
These principles, we should be reminded, are fundamental; in our own
country in time of peace, or even in time of war, except in hostile
territory, there is no such thing as martial law; and no such thing
as military law, except for the army itself, and then only by the
sufferance of a biennial vote, which vote also limits the duration
of existence of the regular army; besides which, all our State
constitutions and the Declaration of Independence have a general
provision against standing armies. The proclamations of military
officers, of mayors of cities, or even State governors, declaring
martial law, or suspending the writ of habeas corpus, are of no legal
validity; this is true of a similar proclamation by the President of
the United States, though it was frequently done by Abraham Lincoln.
The act of Mayor Ruef of San Francisco, even at the time of the
earthquake, declaring martial law, or giving troops or vigilance
committees summary powers of punishment, was a mere "bluff." Such an
order, though in practice obeyed by all good citizens, would in no
way protect those acting under it from prosecution in the criminal or
civil courts.
On the other hand, the right to bear arms is inherent under English
ideas, and this alone, with the corresponding right of political
assembly, has served largely to maintain English liberty; while the
absence of these two important rights has relieved countries like
Russia from all fear of revolution. One has only to read Mr. George
Trevelyan's vivid account of the difficulties of the Garibaldi
movement to free Italy in 1860, to realize the enormous difficulties
under which the great patriot labored from the absence of these
underlying principles. Indeed, but for the connivance of the
Piedmontese government in allowing somebody to sell a thousand
condemned rifles, it is probable that there would have been no
revolution in Sicily.
Now this Anglo-Saxon right to arms goes back to times before the very
dawn of the English Constitution, and the fyrd or local militia was
in Saxon times, as it was declared to be by our American State
constitutions of the eighteenth century, "the natural and only defence
of a free country." This principle was very soon re-established after
the Conquest. We find, as early as 1181, the Assize of Arms, which
revives the ancient fyrd or militia. Twenty-two years before scutage
had been substituted for military service; but this was merely a
matter of feudal tenure. Yet so early was a direct call for troops
forbidden to the crown. The contest of English ideals against Norman
ideas was one of the principal causes of Magna Charta itself (it is
significant that the Great Charter was never published in French);
the barons were required to support the king in war, but complained
against being led out of the kingdom; and King John's insistence
upon this led to the assembly at Runnymede. Thus the militia and the
maintenance of arms other than of feudal retainers--and this exception
led to the statutes against maintainors--passed out of the executive
power and became the province of the legislative branch; a principle
carried out in all our constitutions; they make the executive the
commander-in-chief of the army, navy, or militia, but the governor may
usually not command in the field, nor order troops out of a State; and
the president cannot employ Federal troops _in_ a State, except when
requested by its legislature; save only where necessary to maintain
the functions of the Federal government itself, or when a State
government ceases to be republican in form--but of that last who is to
be the judge?
With the doing away of direct military service, never yet to be
re-established in England, though the threat of conscription is now
made, disappeared the power of the king to control his people;
and this prevented the establishment of a royal autocracy and the
extinction of representative government which took place in every
Continental State. It is a picturesque fact that mercenary soldiers
were first employed in England in small numbers to suppress Jack Cade
in 1449, who was leading a labor insurrection; just as the first
instance where Federal troops were employed in intra-State matters in
America was when President Cleveland sent them to suppress rioters
interfering with the movement of mails in the Pullman strike in
Chicago.
With standing armies abolished, and the fear of invasion removed, the
practice of keeping arms fell into disuse, so that curiously enough we
find under the Stuarts statutes compelling citizens to keep and bear
arms, just as we find statutes compelling them to take their seats
in Parliament. For quite three centuries we find no legislation
concerning arms, and Hallam mentions that by 1485 six liberty rights
were established, among them that "officers, administrators or
soldiers are liable for their acts at the common law." It is not until
1679 under Charles II, the very year of the Habeas Corpus Act, that
standing armies are definitely established in England, and the Mutiny
Act concerning the government of the army was first passed. The
struggle of the people with the army under Charles I may be well shown
by these quotations from the Petition of Right in 1628:
" ... of late great companies of soldiers and mariners have been
dispersed into divers counties of the realm, and the inhabitants
against their wills have been compelled to receive them into their
houses and there to suffer them to sojourn, against the laws and
customs of this realm ..."
" ... certain persons have been appointed commissioners, with power
and authority to proceed ... according to ... martial law ... and by
such summary course and order as is agreeable to martial law, and
as is used in armies in time of war, to proceed to the trial and
condemnation of such offenders, and them to cause to be executed and
put to death according to the law martial. By pretext whereof some of
your Majesty's subjects have been by some of the said commissioners
put to death, when and where, if by the laws and statutes of the land
they had deserved death, by the same laws and statutes also they might
and by no other ought, to have been judged and executed."
And by the Bill of Rights of 1689:
"That the subjects which are Protestants may have arms for their
defence suitable to their conditions, and as allowed by law."
"That the raising or keeping a standing army, within the kingdom in
time of peace, unless it be with consent of Parliament, is against
law."
Now it often happens that a great constitutional principle established
with some difficulty in England is amplified and perfected by the
bolder statement in American constitutions. Thus, the Virginia Bill of
Rights, 1776, has the perfect definition:
"That a well-regulated militia, composed of the body of the people,
trained to arms, is the proper, natural, and safe defence of a free
State; that standing armies in time of peace should be avoided as
dangerous to liberty; and that in all cases the military should be
under strict subordination to, and governed by, the civil power."
Similar declarations are found in the Declaration of Independence the
same year, and the Massachusetts Bill of Rights four years later; but
the Virginia definition, being the work of Thomas Jefferson, is both
the most compendious and the most concise, and is substantially copied
in the Second and Third Amendments of the Federal Constitution. Modern
legislation on the subject has found little to improve, although, with
the ignorance of constitutional history too often found in modern
statutes, we do find State laws which recognize martial law as a
really existent domain of English and American jurisprudence. As our
greatest jurists have often enough declared: "martial law" is nothing
but the will of the commanding officer, the negation of all law, which
exists when the courts do not sit and the writ of habeas corpus does
not run. Even in these imperial days, I detect no tendency in the
legislation of the States, or even of the Federal government in North
America, to infringe upon these great principles of freedom. On the
contrary, many State constitutions, as well as an act of Congress,
declare that the writ of habeas corpus can never be suspended by
the executive, but only by the people's representatives in the
legislature. The prejudice against standing armies does not seem to be
as strong, in that ours has recently been quadrupled in size; but this
is probably no more than proportionate to our national expansion. Many
of the States in this time of increasing civic disorder have had to
give their attention to the suppression of mobs, and correspondingly
we very generally find new complete codes governing the militia. Thus
statutes are frequent exempting a private soldier from prosecution for
murder when he fires under the orders of his commanding officer; and
the honest judgment of the commanding officer is made a defence
for all acts of his troops in attacking mobs, even to the point of
fatalities resulting. Counties or cities are very generally made
liable for damage to property done by mobs, and in some States for
damage to life done by lynchers; the widow and children of the person
lynched may recover damages. In Kansas, by a statute of 1900, it is
made a misdemeanor for a bystander to refuse to assist a sheriff
in quelling a riotous disorder. Most significant, perhaps, of this
militia legislation is that concerning its relation to the labor
unions, and more significant still, the too apparent desire of labor
unions to prevent their members from serving in the militia. Thus,
New York and other States have already found it necessary to enact
statutes prohibiting any discrimination against persons because they
serve in the militia; prohibiting their employers from discharging
them by reason of their necessary absence on such service, and
forbidding the labor unions from in any way preventing them, or
passing by-laws against their serving in the militia. Such by-laws
are, however, unlawful under the common law.
The law-making most in the popular mind on this whole question is that
concerning pensions. As is well known, the Federal pension list has
swollen to a sum far in excess of the total expense of the standing
army of Germany. An enormous number of Spanish War veterans who never
even left the country are being added to the list, and their widows
will be after them; the last survivor of such may not die before A.D.
2140, and the States themselves have not lagged far behind, all to the
enormous corruption of our citizenship; indeed, one or two more wars
(which the very motive of such wholesale pensioning is the more likely
to bring on) would bankrupt the nation more rapidly than even our
battleships. Not only that, but there is a distinct tendency to make a
privileged class of veterans, and the sons of veterans--and perhaps we
shall find of the sons of sons of veterans--by giving them preference
in civic employment and special education, support, or privileges at
the State's expense. Sometimes they get pedlar's licenses for nothing;
sometimes they are to be preferred in all civic employment; sometimes
they have special schools or asylums as well as soldiers' homes;
sometimes they are given free text-books in the public schools. The
Confederate States have not been behindhand in enacting similar
laws for their own soldiers, despite the implied prohibition of the
Fourteenth Amendment; but Southern courts have held them void.
The general right to bear arms is frequently restricted by the
prohibition of concealed weapons, or of the organization, drilling,
and training of armed companies not under State or Federal control,
both of which limitations have been held constitutional; and the
legislation prohibiting the employment or importation of private armed
guards, such as the Pinkerton men, has been already alluded to in our
chapter on labor legislation. The precedent for the latter is to be
found in the early English legislation against retainers; that is to
say, the armed private guard, or "livery," of the great noblemen;
whence is derived the custom of putting servants in livery. The
legislation against private drill companies is closely allied, and had
a somewhat amusing test in Chicago where, during a labor strike, a
number of the strike sympathizers organized a so-called drill company
and furnished themselves with guns, for the purpose really of
intimidating the public and helping the law-breakers. Unfortunately it
so happened, for this purpose, that the first time they sallied forth
with sword and musket on warfare bent, they were stopped by one or two
policemen on the nearest street corner, taken to the station-house,
deprived of their arms, and locked up for the night. The next morning
a fine was imposed upon their captain, who appealed to the United
States Supreme Court without success.[1]
[Footnote 1: Presser _v_. Illinois, 116 U.S. 252.]
The legislation for giving damages for injuries to property done by
mobs was tested after the Pittsburg riots of 1873, and that yellow
metropolis was mulcted in heavy damages, which it took twenty-three
years to pay off. But no damages in this country were ever given for
criminal homicide directly, although there is an interesting case in
the Federal Circuit Court of a gentleman in Georgia who was awaited by
a party of neighboring gentlemen with the intention of shooting him
up when he arrived. One of his friends secretly got to the railway
station and sent a telegram to his wife, shortly to become his widow,
not to come. The Western Union Telegraph Company delayed the message,
its operator being in sympathy with the gentlemen of the neighboring
town, and the widow failed to recover damages from the telegraph
company. But these modern statutes in Ohio and the Southern States,
making towns responsible in a definite sum to the kin of a murdered
man, are the exact re-enactment of the early Anglo-Saxon law; except
that the blood damages--the were gild--were in those days put upon the
neighbors or the kin of the enemy.
"Organized labor" is hostile to the use of the militia, still more of
the regular army, in any labor dispute or riot resulting therefrom. It
is never justifiably hostile where actual offences are committed, but
there is something to be said, at least there is some precedent
for their hostility, in cases where by the accident of Federal
jurisdiction the whole power of the United States army is called in to
back up the injunction of a judge, perhaps improperly issued. That is
to say, if the parties to the dispute are citizens of the same State
the National government may not interfere except, of course, where
the mails or inter-State commerce are obstructed; but, by the mere
accident that plaintiff and defendant come from different States--and
this may nearly always be made the case by the plaintiff corporation,
if it be a citizen of another State than where it owns its mine or
operates its mill--it may always pick out strike leaders, walking
delegates, who are citizens of another State, so that the litigation
may be brought in a United States court. If, then, the orders or
processes of that Federal court be interfered with, under the law of
our Constitution the entire Federal government, first the Federal
marshals and then the Federal army, may be called into the fight.