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Published online by Cambridge University Press: 01 August 2014
It is not in the least unusual, in newspaper accounts of a strike, riot, flood, or fire, to read that the governor has proclaimed martial law and summoned the militia to the threatened zone. However exaggerated such reports may be, they are evidence of a general belief that there exists some mysterious “martial law” which, when proclaimed, augments the powers of soldiers and paves the way for heroic measures. Nor are these notions wholly fanciful. For such a proclamation may indeed be followed by an extraordinary régime in which the military authority will issue regulations for the conduct of the civil population, troops may be called upon to take life, and perhaps the individuals accused of fomenting trouble will be held without authority of a court, or in some cases may even be tried by a military tribunal. Quite likely these severe measures will receive the approval of public opinion. Yet it is surprising that a people ordinarily rather legalistic should have evinced so little disposition to inquire what rules of law, if any, govern the exercise of these military powers. To answering that unasked query the present study is addressed.
1 Hale, , History of the Common Law, 34Google Scholar.
2 Blackstone, , Commentaries (Cooley's 2nd ed.), I, 412Google Scholar.
3 Ibid.Duke of WellingtonIbid., in Gurwood, Wellington's Despatches, IV, 24Google Scholar, quoted by Clode, , Military and Martial Law, 162Google Scholar. Repeated in Hansard's, Parliamentary Debates (3rd ser.), Vol. 115, p. 880Google Scholar. This definition was adopted by the Supreme Court of the United States in United States v. Diekelman (1875), 92 U. S. 520, 526.
4 Lord Loughborough, in Grant v. Gould (1792), 2 H. Blackstone 69, 98, 99.
5 43 George III, c. 117 (1803).
6 J. Mason, in Morcom v. Postmaster General (1900), 21 (N. S.) Natal Law Reports 32.
7 8 Opinions Atty. Gen., 305 et seq. (1857).
8 Law of the Constitution (8th ed.), Appendix, Note x.
9 Law Quarterly Review (1902), vol. 18, p. 162Google Scholar.
10 See Egan v. Gen. Macready (1921), 1 Irish Reports 265.
11 “Let us call the thing by its right name; it is not martial law but martial rule.” David Dudley Field, in his argument in Ex parte Milligan (1866), 4 Wallace 2, 35.
12 Maitland, Constitutional History, 266; Coke, Fourth Institute, c. 17.
13 Blackstone, op. cit., III, 68.
14 (1628), 3 Charles I, c. 1.
15 Rex v. Kennett, and Rex v. Pinney (1832), 5 Car. & Payne 282; Burdett v. Abbott (1812), 4 Taunt. 401; Redford v. Birley (1822), St. Tr. (N.S.) 1071; Chief Justice Tindal's charge to the grand jury (1832), 3 Ibid. 2; Regina v. Neale (1839), 9 Car. & Payne 431.
16 In re Boyle (1899), 6 Idaho 609; In re Moyer (1905), 35 Colo. 154 and 159; Moyer v. Peabody (1906), 148 Fed. 876, (1909), 212 U. S. 78; Ex parte McDonald (1914), 49 Mont. 454.
17 29 Stat. at L. 553; 31 Stat. at L. 153; 39 Stat. at L. 955. These laws authorize the governor to place the islands, or any part thereof, under martial law.
18 In re Moyer, supra; Franks v. Smith (1911), 142 Ky. 232; Ex parte McDonald, supra.
19 W. Va. Code, 1923, c. 18, sec. 92. An examination of the act raises the query whether the legislature intended anything more than to enable the governor to subject the militia to the severe war-time penalties envisaged by the Articles of War, by declaring that, so far as the militia is concerned, the conditions of war shall prevail.
20 Martin v. Mott (1827), 12 Wheat. 19; In re Boyle, In re Moyer, Moyerv. Peabody, Franks v. Smith, Ex parte McDonald, supra; Sweeney v. Commonwealth (1904), 118 Ky. 912; Barcelon v. Baker (1905), 5 Philippine 87.
21 In re Charge to Grand Jury (1894), 62 Fed. 828.
22 The Three Friends (1897), 166 U. S. 1, 63.
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24 Wilson, , Handbook of International Law, 43 et seq.Google Scholar
25 (1862), 2 Black 635.
26 State v. Brown (1912), 71 W. Va. 519; Ex parte Jones (1913), Ibid. 567; Ex parte Lavinder (1921), 88 W. Va. 713.
27 Mathews, Martial Law in West Virginia, Sen. Docs. v. 22, 63rd Cong. 1st Sess., Doc. No. 230, p. 20.
28 Art. I, sec. 10, cl. 3.
29 In re Gillis (1914), 49 Mont. 454.
30 In re Gillis, supra.
31 This was the opinion of Judge Garrison when secretary of war. Sen. Docs., vol. 19, 67th Cong., 2nd Sess., Doc. No. 263, p. 315. To the same effect was the opinion of the Earl of Halsbury in Tilonko v. Attorney-General of Natal (1907), A.C. 93.
32 Hansard's, Parliamentary Debates, vol. 11 (N.S.), 1046–47Google Scholar. See also the leading case of Wolfe Tone, an Irish traitor. Tone was tried by a military court, but died while the legality of his trial was under consideration in the court of King's Bench. (1798), 27 State Trials, 613.
33 In re Fourie (1900), 17 Supreme Court Reports, Cape of Good Hope, 173; Queen v. Gildenhuys (1900), Ibid., 266; Queen v. Bekker (1900), Ibid. 340; Umbilini v. General Officer Commanding (1900), 21 (N.S.) Natal Law Reports 86 and 169; Jacobs v. General Officer Commanding (1900), Ibid. 86 and 157; Ex parte Marais (1902), A.C. 109. See also Law Quar. Review (1902), vol. 18, p. 143Google Scholar.
34 The new doctrine laid down in Ex parte Marais was confirmed by the Judicial Committee in a case arising from a native revolt in Natal in 1906. Mgomini v. Governor (1906), 22 T. L. R. 413. Apparently the military trials were not necessary, but were considered desirable as a means of discouraging native revolts.
35 (1917), A. C. 260. To a similar effect is The King v. Governor of Worm-wood Scrubbs Prison (1920), 2 K. B. 305.
36 (1921), 2 Ir. Reports 241.
37 This went farther than Marais' case, since Allen had been sentenced to death.
37a (1921), 1 Ir. Reports 265.
38 The King (Childers) v. Adjutant General (1923), 1 Ir. Reports 5.
39 (1921), 2 Ir. Reports 317.
40 The King (O'Brien) v. Military Governor (1924), 1 Ir. Reports 32. There-upon the Public Safety Act was passed by the Free State Parliament, and military prisoners were held as before. The King (O'Connell) v. Military Governor (1924), 2 Ir. Reports 104.
41 (1866), 4 Wall. 2.
42 War Powers under the Constitution, 12.
43 J. Robinson, vehemently dissenting.
44 State v. Brown and Ex parte Jones, supra; Hatfield v. Graham (1914), 73 W. Va. 759.
45 Ex parte Lavinder (1921), 88 W. Va. 713.
46 In re Gillis, supra.
47 United States v. Wolters (1920), 268 Fed. 69.
48 (1869), 9 Wallace 129.
49 Ex parte Bollman (1807), 4 Cranch 75, 101.
50 (1861), Fed. Case No. 9487. Followed in Ex parte Benedict (1862), Fed. Case No. 1292, and in Ex parte Moore (1870), 64 N.C. 802.
51 In re Kemp (1863), 16 Wis. 359. This case was similar to Ex parte Merryman.
52 All supra.
53 (1906), 148 Fed. 876.
54 (1909), 212 U. S. 78.
55 This last cryptic sentence, remarks Professor Ballantine, fails to indicate whether public danger warrants the supersession, or only the postponement, of judicial inquiry. Columbia Law Review, vol. 12, p. 529Google Scholar.
56 On this point the supplementary opinion of the chief justice of Colorado in the Moyer case is specific. (1905), 35 Colo. 159.
57 Commonwealth v. Shortall (1903), 206 Pa. St. 165; In re Smith (1913), 23 Ohio Decisions 667; Ela v. Smith (1855), 71 Mass. 121, 137. Franks v. Smith (1911), 142 Ky. 232, is rather strict in its view of the extent of military power.
58 Morcom v. Postmaster-General, supra.
59 Clow v. Wright (1816), Brayton (Vt.) 118; McKrell v. Metcalfe (1866), 63 Ky. (2 Duvall) 533. But see Smith v. Shaw (1815), 12 Johnson (N. Y.) 257.
60 Malverer v. Spinke, 1 Dyer 36b; J. Buller, in Gov., etc., v. Meredith (1792), 4 Durnford and East 794, 797; Meeker v. Van Rensselaer (1836), 15 Wendell (N. Y.) 396; Russell v. Mayor, etc., of New York (1845), 2 Denio (N. Y.) 461.
61 (1915), 3 K. B. 649.
62 (1919), 2 Chancery 197, affirmed by the House of Lords (1920), A. C. 508.
63 Smith v. Brazelton (1870), 48 Tenn. (1 Heiskell) 44; Koonce v. Davis (1875), 72 N. C. 218.
64 Bronson v. Woolsey (1819), 17 Johnson (N. Y.) 46; McKrell v. Metcalf, supra; Respublica v. Sparhawk (1788), 1 Dallas 383.
65 Despan v. Olney (1852), Fed. Case No. 3822; Mitchell v. Harmony (1851), 13 Howard 115; Farmer v. Lewis (1866), 64 Ky. (1 Bush) 66; Short v. Wilson (1866), Ibid. 350; Besk v. Ingram (1866), Ibid. 355; Terrill v. Rankin (1867), 65 Ky. (2 Bush) 453; Yost v. Stout (1867), 44 Tenn. (4 Coldwell) 205; Wilson v. Franklin and Burleson (1870), 64 N. C. 141.
66 This question was discussed exhaustively three centuries ago in The Case of Ship Money (1637), 3 Howell's St. Tr. 825.
67 Mitchell v. Harmony, supra.
68 Little v. Barreme (1804), 2 Cranch 170; Jones v. Seward (1863), 40 Barbour (N. Y.) 563; Griffin v. Wilcox (1803), 21 Ind. 370; Eifort v. Bevins (1866), 64 Ky. (1 Bush) 460; Jones v. Commonwealth, Ibid. 34; Commonwealth v. Palmer (1866), 65 Ky. (2 Bush) 570; Koonce v. Davis, supra. “To justify, necessity must be urgent for the public service, and such as will not admit of delay …..” Farmer v. Lewis, supra, and Bryan v. Walker (1870), 64 N. C 141.
69 (1917), 243 U. S. 332.
70 (1918), 245 U. S. 366.
71 (1919), 251 U. S. 146.
72 Tiaco v. Forbes (1913), 228 U. S. 549.
73 Johnson v. Jones (1867), 44 111. 142.
74 Griffin v. Wilcox (1863), 21 Ind. 370.
75 12 Stat. 755, amended by 14 Stat. 46.
76 Mayor v. Cooper (1867), 6 Wall. 247; Bean v. Beckwith (1873), 18 Wall. 510 and (1878), 98 U. S. 266; Mitchell v. Clark (1883), 110 U. S. 633.
77 Constitutional Law, II, 1253Google Scholar. This decision was condemned by Hare, , Constitutional Law, II, 981Google Scholar. Judge Advocate General G. Norman Lieber held that the decision meant nothing more than that Congress could legalize retrospectively what it might have authorized in the first instance. North American Review, vol. 163, p. 557Google Scholar.
78 Jenkins v. Waldron (1814), 11 Johnson (N. Y.) 114, 121; Dinsman v. Wilkes (1849), 7 How. 89, and (1851), 12 How. 390.
79 Mitchell v. Harmony, supra; Milligan v. Hovey (1871), Fed. Case No. 9605; McCall v. McDowell (1867), 1 Abbott (U. S.) 212.
80 Despan v. Olney, supra.
81 Little v. Barreme and Jones v. Seward, supra; Commonwealth v. Blodgett (1846), 12 Metcalf 56.
82 So held as to Capt. Douglas in McCall v. McDowell, supra; Riggs v. State (1866), 3 Coldwell (Tenn.) 85; Queen v. Smith (1900), 17 Supreme Court Reports, Cape of Good Hope, 561.
83 United States v. Clark (1887), 31 Fed. 710.
84 This latter was done in favor of General Jackson years after he had placed New Orleans under “martial law.” Bassett, , Life of Andrew Jackson, 745Google Scholar.
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