JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO
MARTIAL LAW
Martial law is the exercise of military power. It is martial
rule at the will of the commanding military officer.
In time of war and at the seat of war martial rule is a
necessity, and under such conditions martial law may rightfully
be enforced by any sovereign as an incident of the war, whether
that is being waged with foreign or domestic enemies. The case
is different when, though war exists, an attempt is made to
enforce martial law at a place which is not the seat of war, nor
so near it as to make military rule necessary for military
success. Constitutional provisions may also affect the question.
Those affecting the United States contain limitations stricter
than those found in some of the State Constitutions. Ordinarily
no military officer can rightfully enforce martial law in a place
where the regular courts of his sovereign are open and in the
proper and unobstructed exercise of their jurisdiction.[Footnote:
_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]
The first serious contest between the judiciary and the military
power in this country as to the questions thus involved took
place during the war of 1812. General Jackson, in 1814, was at
New Orleans in command of the military Department of the South.
The city was threatened with invasion. He declared martial law,
and not long afterwards arrested a Mr. Louaillier, a member of
the State legislature, for writing a newspaper article in which
he objected to the continuance of this kind of military
government. Louaillier obtained a writ of _habeas corpus_
from the District Judge of the United States (Judge Hall),
directed to Jackson. The General, instead of obeying it,
forthwith took possession of the original writ, arrested the
Judge, and deported him from the city. Two days later despatches
were received from the War Department officially announcing the
conclusion of a treaty of peace. Judge Hall now returned, and a
rule to show cause why Jackson should not be attached for
contempt of court was issued. Jackson appeared and filed a long
answer, first stating various objections to the jurisdiction, and
then setting up the circumstances calling for his proclamation of
martial law. He had been told, he said, that the legislature was
"politically rotten." The Governor had warned him that the State
was "filled with spies and traitors," and advised, in the
presence of Judge Hall, and with no dissent from him, that
martial law be proclaimed. It seemed a time when "constitutional
forms must be suspended for the permanent preservation of
constitutional rights." The lengthy paper, which was evidently
written by a skilful lawyer, closed thus: "The powers which the
exigency of the times forced him to assume have been exercised
exclusively for the public good; and, by the blessing of God,
they have been attended with unparalleled success. They have
saved the country; and whatever may be the opinion of that
country, or the decrees of its courts in relation to the means he
has used, he can never regret that he employed them."[Footnote:
Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court,
not particularly impressed with these arguments, ordered the
proceedings to go forward and required the General to answer
certain interrogatories respecting his course of conduct, by a
day appointed. He appeared on that day and declined to answer
them, with this concluding shot:
"Your honour will not understand me as intending any disrespect
to the court; but as no opportunity has been afforded me of
explaining the reasons and motives by which I was influenced, so
it is expected that censure will constitute no part of that
sentence, which you imagine it your duty to pronounce."[Footnote:
_Ibid_., 387.]
The sentence was a fine of $1,000, which was at once paid.
The sympathy of the country was with "the hero of New Orleans" in
this affair, whose gallant defense of that city had cast a gleam
of glory upon the close of a long and apparently fruitless war.
Some of her people subscribed the money to reimburse to him the
amount of the penalty, but he declined to accept it. Nearly
thirty years afterwards Congress made an appropriation for the
purpose, and he received the full amount with interest (in all
$2,700) from the treasury, as a legislative compensation for a
judicial wrong. It would seem, however, that Judge Hall acted
within the limits of his authority. When he signed the writ of
_habeas corpus_ the State was at peace, and it was generally
known, though not officially proclaimed, that a formal treaty of
peace had been signed between the United States and Great
Britain. The courts were open; his court was open; and the
General should have respected the process which issued from
it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports,
O. S., 530. See opinion of Mr. Justice Miller in Dow _v._
Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4
Wallace's Reports, 2, 127.]
During the Civil War, President Lincoln was responsible for many
arrests by military officers of citizens of States remote from
the seat of actual hostilities, and in which the courts were
open. At its first outbreak he entirely suspended the privilege
of the writ of _habeas corpus_, and one issued by the Chief
Justice of the United States was disobeyed.[Footnote: _Ex
parte_ Merryman, Taney's Decisions, 246.] Congress in 1863
enacted that any order of the President, or under his authority,
in the course of the war, should be a defense to any action in
any court for what was done by virtue of it. The State courts
disregarded the statute. If, they said, either the common law or
martial law justified the order, it justified the act; if neither
did, the fiat of Congress cannot make the act a lawful
one.[Footnote: Griffin _v._ Wilcox, 21 Indiana Reports,
370.] The Supreme Court of the United States had this question
before them, but did not find it necessary to decide
it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510;
Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the
dissenting opinion of two justices in the last report, p. 292.)]
Had they done so, it would probably have been answered in the
same way.
Missouri inserted in her Constitution of 1865 a provision similar
to the Act of Congress. This, of course, so far as that State
could do it, abrogated any rule of law to the contrary, and it
was held not to contravene any provision of the Federal
Constitution.[Footnote: Drehman _v._ Stifle, 8 Wallace's
Reports, 595.] The transaction in controversy, however, was
before the adoption of the fourteenth amendment, and had the
prohibition in that been then in existence, a different result
would probably have been reached.
The Governor of North Carolina (William W. Holden) in 1870
declared two counties in a state of insurrection. The militia
were called out and a number of citizens arrested. Writs of
_habeas corpus_ in their favor were issued by Chief Justice
Pearson of the Supreme Court of the State against the military
officers.[Footnote: _Ex parte_ Moore, 64 North Carolina
Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at
first refused, by the Governor's authority, to obey them.
Similar writs were then obtained from the District Judge of the
United States, upon which the petitioners were, by the Governor's
orders, produced before the State judge. The result was the
impeachment of Governor Holden and his removal from
office.[Footnote: S. S. Cox, "Three Decades of Federal
Legislation," 458.]
While martial law is the will of the commanding officer, it may
be his will to have it applied, so far as ordinary matters of
litigation are concerned, by courts. For that purpose, when in
occupation of enemy's territory, he may allow the courts
previously existing under the government of the enemy to continue
in the exercise of their functions as his temporary
representatives; or he can institute new tribunals of local
jurisdiction having the name and form of civil courts, and
proceeding according to the ordinary rules of administrative
justice. All such courts act really as his agents and subject to
his control, but in practice he seldom interferes with their
judgments. He cannot, however, in establishing such a temporary
tribunal, give it the powers of an admiralty court over prize
cases. The judgment _in rem_ of an admiralty court,
condemning a captured ship as a lawful prize of war, is treated
as conclusive all over the world; but this is because it is a
decree of a competent court, properly established to administer a
branch of maritime law which, in its main principles, is part of
the law of nations and common to the world. No mere military
court on enemy's territory occupies that position.[Footnote:
Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]
This right of the military commander exists equally on foreign
territory in military occupation and on domestic territory, when
the ordinary courts of his country are not open. During our
Civil War, in 1864, President Lincoln, as commander in chief of
the army and navy, set up a "Provisional Court for the State of
Louisiana," after the Southern portion of that State had been
occupied by the national forces and martial law declared. Judge
Charles A. Peabody of New York, who had been a justice of the
Supreme Court of that State, was commissioned to hold it and to
dispose of both civil and criminal causes. Its docket became at
once a full one, and important litigation was transacted there
with general acceptance until the close of the war.[Footnote: The
Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical
Association for 1892, 199.]
In the original proclamation of martial law in Louisiana the
commanding officer announced that civil causes between parties
would be referred to the ordinary tribunals. One of the State
courts, known as a District Court of the City and Parish of New
Orleans, the judge of which took the oath of allegiance to the
United States, continued to sit and dispose of business in the
usual course. A few months later a citizen of New York sued a
military officer before it for ravaging a plantation which he
owned in Louisiana, and recovered judgment. A suit upon it was
afterwards brought in Maine, where the defendant resided. He
pleaded that the property of the plaintiff had been taken to
furnish his troops with necessary supplies. The case ultimately
came before the Supreme Court of the United States. Here it was
thrown out, the court saying that the District Court of New
Orleans had no jurisdiction to call military officers to account
for acts done under claim of military right.[Footnote: Dow
_v._ Johnson, 100 U. S. Reports, 158.] So far, however, as
litigation between private parties unconnected with military
operations is concerned, a court of this character, established
by law, and suffered by the military authorities to continue its
sessions, has competent jurisdiction, and its judgments will be
enforced in other States.[Footnote: Pepin _v._ Lachenmeyer,
45 New York Reports, 27.] They have no power to entertain
criminal charges against those in the military service, who would
be punishable by court martial.[Footnote: Coleman _v._
Tennessee, 97 U. S. Reports, 509, 519.]
In 1864, during the war, but in Indiana, a State
distant from the seat of hostilities, the military commandant
of the district ordered the arrest of a private
citizen and his trial before a military commission on
charges of conspiracy against the United States, as a
member of a secret organization known as the Order
of American Knights or Sons of Liberty. The trial
resulted in his conviction, and a sentence to death, which
was approved by the President of the United States.
Before it could be executed, he applied to the Circuit
Court of the United States for the District of Indiana
for a writ of _habeas corpus_. The judges of that court
were divided in opinion in regard to the case, but it
was decided in his favor when it came before the
Supreme Court of the United States.[Footnote: _Ex parte_
Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision
was unanimous, but in stating the reasons for it the
court was divided in a manner which has not been
uncommon since the death of Chief Justice Marshall
when any great question of a political nature has
been involved. Five justices held that the trial of
a civilian by a military commission can never be vindicated
in a peaceful State where the courts are open
and their process unobstructed. Four justices dissented,
and Chief Justice Chase thus summarized their
conclusions:
There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war;
another to be exercised in time of foreign war without the
boundaries of the United States, or in time of rebellion and
civil war within States or districts occupied by rebels treated
as belligerents; and a third 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. The first of these may be
called jurisdiction under military law, and is found in acts of
Congress prescribing rules and articles of war, or otherwise
providing for the government of the national forces; the second
may be 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, while the
third 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 public safety and
private rights.
We think that the power of Congress in such times and in such
localities to authorize trials for crimes against the security
and safety of the national forces may be derived from its
constitutional authority to raise and support armies and to
declare war, if not from its constitutional authority to
provide for governing the national forces.[Footnote: _Ex
parte_ Milligan, 4 Wallace's Reports, 141.]
The Constitution of the United States contains some provisions
restricting the jurisdiction of military authorities and
tribunals over controversies, which are not found in the
Constitutions of the States. It may well be that martial law has
for the United States a narrower meaning than it may possess in a
particular State.
The legislature of Rhode Island in 1842, during "Dorr's
Rebellion," by a Public Act put that State under martial law
until further order, or until its termination should be
proclaimed by the Governor. A squad of militia broke into the
house of a private citizen to arrest him as an abettor of Dorr,
and were afterwards sued in trespass before the civil courts.
The cause finally came before the Supreme Court of the United
States, where (one justice only dissenting) it was held that the
Act could not be pronounced an unjustifiable exercise of
legislative power under any provision of the federal
Constitution.[Footnote: Luther _v._ Borden, 7 Howard's
Reports, 1, 45.] Whether the courts of Rhode Island could have
taken a different view, under the fundamental laws of the State,
was not decided.[Footnote: _Ex parte_ Milligan, 4 Wallace's
Reports, 2, 129.]
On the other hand, there are States in which the Constitution
explicitly provides that "the military power shall always be held
in an exact subordination to the civil authority and be governed
by it."[Footnote: Constitution of Massachusetts, Declaration of
Rights, Art. 17. _Cf._ Constitution of Colorado, Art. 2,
Sec, 22.] It is a serious question whether, under such
provisions, a legislative or executive declaration of martial law
in time of peace, in order the better to cope with some local
disturbance, is to be regarded as an expression of the will of
the civil authority, by virtue of which the civil courts lose the
power of discharging on _habeas corpus_ one restrained of
his liberty by military command. That it is such an expression
was held in Colorado in 1904, but by a court composed of only
three judges, of whom one, in a dissenting opinion, observed that
the decision of his associates "is so repugnant to my notions of
civil liberty, so antagonistic to my ideas of a republican form
of government, and so shocking to my sense of propriety and
justice that I cannot properly characterize it." A similar
question arose, but was not judicially determined, in Arkansas in
1874. There was a contest over the election of Governor. The
Constitution provided that such contests should be decided by the
joint vote of both houses of the legislature. Baxter, the
candidate who was elected on the face of the returns, was
declared elected by the President of the Senate and took the oath
of office. Brooks, the other candidate, presented a petition for
a contest to the lower house, which refused to grant it. He then
applied to the Supreme Court on _quo warranto_ proceedings,
which threw out the case for want of jurisdiction.[Footnote:
State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
suit was then brought in a _nisi prius_ court, on which
judgment was rendered in his favor,[Footnote: This judgment was
reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
173.] and he was put in possession of the executive chambers by
an armed force which he assembled. Baxter then declared martial
law in the county in which the capital was situated, and arrested
two of the judges of the Supreme Court on their way to attend a
special session called to take action in _mandamus_
proceedings brought in behalf of Brooks. They were rescued after
a day or two by United States troops and proceeded to join their
associates. The court then gave judgment for Brooks in his third
suit, directing the State Treasurer to pay his warrants. At this
point the legislature applied to the President of the United
States for protection against domestic violence, under Art. IV of
the Constitution of the United States, and his compliance by a
proclamation officially recognizing Governor Baxter and ordering
the Federal troops to support him closed the history of this
disgraceful incident.[Footnote: McPherson, "Hand-book of Politics
for 1874," 87-100.]
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