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THE GUARDIANS OF CIVIL LIBERTY SHOULD UNDERSTAND WHAT IS MARTIAL LAW
ITS ORIGIN AND ORIGINAL POWERS IN ENGLAND-THE EXTENSION OF THE CIVIL
ESTABLISHMENT-MARTIAL LAW CONFINED AFTER THE GREAT CHARTER EX
CLUSIVELY TO THE MILITARY SERVICE-ITS COMPLETE SUBORDINATION TO THE CIVIL POWER BY THE PETITION OF RIGHT--THE ENGLISH SYSTEM OURS
MARTIAL LAW IN THE UNITED STATES-REVOLUTIONS-CROMWELL-HIS MIL
ITARY GOVERNMENT THROUGH TWELVE MAJOR-GENERALS-WHERE LAWS PAIL
IT IS A DESPOTISM-EXPOSITION OP MARTIAL LAW BY THE SUPREME COURT OF
THE UNITED STATES-ITS EXPOSITION IN ENGLAND BY LORD LOUGHBOROUGH,
A PEOPLE who have undertaken to maintain free government, and bave held themselves up before the world, in no very modest speech, as the peculiar guardians of civil liberty, ought to understand exactly what is martial law, military law, and civil authority. If we look back upon the career of the Anglo-Saxon race, these three widely different phases of government become as distinct as the reign of the hostile families who have been raised at times to the throne of England. They mark, indeed, three distinct stages of progress, from the Norman Conquest to the time of the execution of the Great Charter, as the first; to the enactment of the Petition of Right, as the second; to the Bill of Rights and the final triumph of the people in the firm establishment of the Habeas Corpus Act, as the third.
It is a curious and instructive fact that the progress of English liberty is exactly indicated by the progress of the civil over the military power. Starting under the Norman conquerors with an absolute and licentious military government, the utter overthrow of Saxon liberty, and the complete confiscation of estates, parcelled out to the followers of the chief, and again to sub-dependants, we pass on to the great conflict between the barons and the king, re
sulting in the conquest of Magna Charta, the reduction of the military and the extension of the civil power, and again, to that greater achievement of civil liberty, the Petition of Right, when, in point of fact, the military power ceased to be an element of the Constitu. tion of England. All this, we repeat, is simply a history of martial law, as it was understood and enforced from the Norman Conquest, up to about the time of the wresting of the Great Charter from King John; of military law, its successor in government, as it was enforced before the Petition of Right and the Habeas Corpus enactment, to the final and complete triumph of the civil establishment.
Martial law, as rudely exercised by the conquerors, was absolute military government, not limited in its jurisdiction to military persons, but extended to every citizen or subject, even to the right of compelling service to those intrusted with command. It would seem, from an examination of the structure of society at that period and what was actually done, that it was the policy of the conquerors of our honest Saxon ancestors, to confer supreme power upon the military, as the easiest and shortest process of overthrowing, not only their civil institutions, but the entire eradication of their social and political habits and convictions. There were none but martial honors to be won, and no submission, short of slavery, could be received.
In the progress of events this early phase of martial law became modified, so as to confine its authority to military persons in all circumstances.
Even their debts and obligations were subject to inquiry by military commissions. Every species of offence committed by any person in the army must be tried, not by a civil judicature, but by the judicature of the regiment or corps to which he might belong. It was yet made to extend to a great variety of cases not relating to the discipline of the army. Plots against the sovereign, intelligence furnished to the enemy, and numerous other kindred matters, were all considered as cases within the cognizance of military authority.
This was its phase for many centuries in England, and although shorn, as was intended, by the Great Charter, through the extension of the civil establishment, of much of its offensive and dam.
aging power, its exercise, far beyond what was necessary to preserve discipline and order in the military service, was continued till the time of Sir Edward Coke, when it received its final blow, from which it has never entirely recovered.
It is a remarkable fact—at least very remarkable to the American people—that martial law, as enforced in England, after the treaty of Runnymede, was a weak, harmless power, when compared with the exercise of military authority in this country during the last three years. It was absolute over all persons in the army,
and assumed that certain persons, not in the service, but acting against the service, were thereby brought within the jurisdiction and government of martial law. There was no pretence of power to determine crimes against the state, such as treason or other felony. The right to sit in judgment upon the citizen, for any offence, opinion, or speech he might commit or utter, touching the character or conduct of the general administration, was never claimed.
Those who have carefully studied the history of governments, where there have been two acknowledged forces in the state, the civil and the military, need not be told that the latter is constitutionally inclined to extend its powers, during war or civil commotions. This has been especially the case in England even, where there has ever been more distrust of military authority, and a more profound sense of the necessity of keeping it within the strict limits of the law, than in any other country. But with all the robust political health of Englishmen, and their long-established devotion to civil liberty, their career is full of instances, in which the military power has broken over the boundaries of legal authority, and trampled down, for the day, the civil institutions of the kingdom.
It is thus seen how war may be as dangerous to a free state, on account of its inherent tendencies to weaken or overthrow the civil establishment, as hostile invasion by a powerful public enemy. In the long struggle of the British people for free institutions-a struggle, which, all the circumstances of the case considered, erinces more earnest, patient, and profound knowledge of mankind, than is elsewhere to be found in the history of the human familythere is not to be seen one event in time of peace, since the establishment of the existing constitution, which has seriously threatened
the legal authority of Parliament. It has been when the army was employed by the direction and for the civil establishment, that it has extended its powers beyond the authority conferred upon it by the latter. But in every such event there has been, on the part of the people, a prompt, earnest, and resolute rebuke administered to the offending power, and a reassertion of the supreme authority of the civil establishment.
“The army being established," says an eminent English judge, “by the authority of the legislature, it is an indispensable requisite of that establishment, that there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to trial by their offi. cers. That has induced the absolute necessity of a mutiny act accompanying the army.” “It is one of the objects of that act to provide for the army, but there is a much greater cause for the existence of a mutiny act, and that is the preservation of the peace and safety of the kingdom; for there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army." "The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty, to make articles of war, those articles are to be for the better governinent of his forces, and can extend no farther.”
These extracts exhibit the structure of the civil establishment in England, and show clearly that the military is held in complete subordination to it. The mutiny act confers jurisdiction to the army over offences committed by persons in a military capacity. Without such a delegation of power, we take it, the army would have no authority, of any kind, to punish persons in its own service. Its power is limited by the act exclusively to such persons -is conferred by the state to that extent only. And then over all is constituted a court, having superior jurisdiction of all those who are a part of the army, in all their different descriptions of officers and soldiers.
The important right to ordain articles of war, existing in the
Crown of England, and delegated by the States to Congress here, can in no event be exercised, in either country, so as to confer jurisdiction upon the army, beyond what is necessary to preserve and maintain discipline. The law here is precisely what it is in England, with this exception : that there is no power in Congress, as there unquestionably is in Parliament, to extend the authority of the army beyond the limits set upon it by the existing British system. That system, in this respect, is ours.
All our notions of civil liberty, and what is necessary to maintain it, we inherited from England. We started in our career of independent government on this distinct basis : that as long as the civil establishment can be maintained, it must be absolute over the military. We went farther than this, and maintained that the latter should always be held as an agent of the former, subject to its orders at all times, and that every person in the army, who assumes to exercise original authority, is an offender against the laws, liable to punishment through the courts, and personally liable to every citizen who may be injured thereby. This doctrine has been repeatedly affirmed in England. Extreme punishments have been enforced against military commanders, in cases where there was some difficulty in ascertaining whether the original offence was strictly military in its nature.
The most celebrated, perhaps, of this class of criminal trials, was that of Governor Wall, who, by commission of a court martial, caused a soldier to be flogged, so that he died. Twenty years after the commission of the offence, Wall was tried by the civil authorities, convicted, and executed. The case turned upon a single point, whether the alleged offence of the soldier was strictly military in its nature. This having been determined in the negative, the original trial by court martial could not screen the unfortunate commander, because by that decision the military authority was left wholly without any jurisdiction of the soldier's offence.
Lord Coke says: “If a lieutenant or any other that hath commission of martial law in time of peace, hang or otherwise execute any man, by color of martial law, this is murder.” What is here meant by the words “in time of peace,” is explained by judicial decisions to be “when the courts are open ”—when, in