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over the whole people of Rhode Island, may be seen by adverting to its character for a moment, as described in judicial as well as political history. It exposed the whole population, not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to send prisoners, thus summarily arrested in a civil strife, to all the harsh pains and penalties of court martial or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of réposing under the shield of known and fixed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp-post under the sentence of some drumhead court martial. (See Simmons's Pract. of Courts Martial, 40.) See such a trial in Hough on Courts Martial, 383, where the victim on the spot was ' blown away by a gun,' neither time, place, or persons considered. As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558, by proclamation merely, and declared, that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without further delay be executed by the martial law.' (Tytler on Military Law, p. 50, ch. 1, sec. 1.)
“For convincing reasons like these, in every country which makes any claim to political or civil liberty, 'martial law,' as here attempted and as once practised in England against her own people, has been expressly forbidden for near two centuries, as well as by the principles of every other free constitutional government. (1 Hallam's Const. Hist. 420.) And it would be not a little extraordinary if the spirit of our institutions, both State and national, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate or even by a legislature.
“It is true, and fortunate it is that it is true, the consequent actual evil in this instance from this declaration of martial law was smaller than might have been naturally anticipated. But we must be thankful for this, not to the harmless character of the law itself, but rather to an inability to arrest many, or from the small opposi. tion in arms, and its short continuance, or from the deep jealousy and rooted dislike generally in this country to any approach to the reign of a mere military despotism. Unfortunately, the legislature had heard of this measure in history, and even at our Revolution, as used by some of the British generals against those considered rebels; and, in the confusion and hurry of the crisis, seem to have rushed into it suddenly, and, I fear, without a due regard to private rights, or their own constitutional powers, or the supervisory authority of the General Government over wars and rebellions.
“Having ascertained the kind and character of the martial law established by this Act of Assembly in Rhode Island, we ask next, how, under the general principles of American jurisprudence in modern times, such a law can properly exist, or be judicially upheld ? A brief retrospect of the gradual, but decisive repudiation of it in England will exhibit many of the reasons why such a law cannot be rightfully tolerated anywhere in this country.
" One object of parliamentary inquiry, as early as 1620, was to check the abuse of martial law by the king which had prevailed before. (Tytler on Military Law, 502.) The Petition of Right, in the first year of Charles the First, reprobated all such arbitrary proceedings in the just terms and in the terse language of that great patriot as well as judge, Sir Edward Coke, and prayed they might be stopped and never repeated. To this the king wisely replied, Soit droit fait comme est desire—Let right be done as desired.' (Petition of Right, in Statutes at Large, 1 Charles I.) Putting it in force by the king alone was not only restrained by the Petition of Right early in the seventeenth century, but virtually denied as lawful by the Declaration of Rights in 1688. (Tytler on Military Law, 307.) Hallam, therefore, in his Constitutional History, p. 420, declares its use by the commissions to try military offenders by martial law a procedure necessary within certain limits to the discipline of an army, but unwarranted by the constitution of this country. Indeed, a distinguished English judge has since said, that martial law,' as of old, now does not exist in England at all,' was contrary to the constitution, and has been for a century totally exploded.' (Grant v. Gould, 2 Hen.
Bl. 69; 1 Hale's P. C. 346; Hale's Com. Law, ch. 2, p. 36; 1 MacArthur, 55.) This is broad enough, and is correct as to the community generally in both war and peace. No question can exist as to the correctness of this doctrine in time of peace. The Mutiny Act itself, for the government of the army, in 36 Geo. III., ch. 24, sec. 1, begins by reciting, Whereas, no man can be forejudged of life and limb, or subjected in time of peace to any punishment within the realm by martial law. (Simmons's Pract. of Courts Martial, 38.) “Lord Coke says, in 3 Inst. 52: "If a lieutenant, or any
other that hath commission of martial authority in time of peace, hang or otherwise execute any man by color of martial law, this is murder.'
Thom. Count de Lancaster, being taken in open insurrection, was by judgment of martial law put to death,' and this, though during an insurrection, was adjudged to be murder, because done in time of peace, and while the courts of law were open. (1 Hallam's Const. Hist. 260.) The very first Mutiny Act, therefore, under William the Third, was cautious to exonerate all subjects except the military from any punishment by martial law. (Tytler on Military Law, 19, note.) In this manner it has become gradually established in England, that in peace the occurrence of civil strife does not justify individuals or the military or the king in using martial law over the people.
“ It appears, also, that nobody has dared to exercise it, in war or peace, on the community at large, in England, for the last century and a half, unless specially enacted by Parliament, in some great exigency and under various restrictions, and then under the theory, not that it is consistent with bills of rights and constitutions, but that Parliament is omnipotent, and for sufficient cause may override and trample on them all, temporarily.
" After the civil authorities have become prostrated in particular places, and the din of arms has reached the most advanced stages of intestine commotions, a Parliament which alone furnishes the means of war-a Parliament unlimited in its powers—bas, in extremis, on two or three occasions, ventured on martial law beyond the military; but it has usually confined it to the particular places thus situated, limited it to the continuance of such resistance, and embraced in its scope only those actually in arms. Thus the Insurrection Act of November, 1796, for Ireland, passed by the Parliament of England, extended only to det magistrates put people ! out of the king's peace,' and subject to military arrest, under certain circumstances. Even then, though authorized by Parliament, like the General Government here, and not a State, it is through the means of the civil magistrate, and a clause of indemnity goes with it against prosecutions in the king's ordivary courts of law.' (Annual Register, p. 173, for A. D. 1798; 1 MacArthur, Courts Martial, 34.) See also the cases of the invasions by the Pretender in 1715 and 1745, and of the Irish rebellion in 1798. (Tytler on Military Law, 48, 49, 369, 370, App. No. 6, p. 402, the act passed by the Irish Parl.; Simmons's Practice of Courts Martial, App. 633.)”
In the case of Grant vs. Sir Charles Gould, 1792, Lord Loughborough rendered the following opinion touching the status of martial law in England:
“ The suggestion begins, by stating the laws and statutes of the realm, respecting the protection of personal liberty. It goes on to state, that no person ought to be tried by a court martial, for any offence not cognizable by martial law, and so on. In the preliminary observations upon the case, my brother Marshall went at length into the history of those abuses of martial law which prevailed in ancient times. This leads me to an observation, that martial law, such as it is described by Hale, and such also as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law, merely because the decision is by a court martial, but which bears no affinity to that which was formerly attempted to be exercised in this kingdom ; which was contrary to the constitution, and which has been for a century totally exploded. Where martial law prevails, the authority under which it is exercised claims a jurisdiction over all military persons, in all circumstances. Even their debts are subject to inquiry by a military authority; every species of offence, committed by any person who appertains to the army, is tried, not by a civil judicature, but by the judicature of the regiment or corps to which he belongs. It extends also to a
great variety of cases not relating to the discipline of the army, in those states which subsist by military power. Plots against the sovereign, intelligence to the enemy, and the like, are all considered as cases within the cognizance of military authority.
“ In the reign of King William there was a conspiracy against his person in Holland, and the persons guilty of that conspiracy were tried by a council of officers. There was also a conspiracy against him in England, but the conspirators were tried by the common law. And within a very recent period, the incendiaries who attempted to set fire to the docks at Portsmouth were tried by the common law. In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts. Therefore it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain. But there is, by the providence and wisdom of the legislature, an army established in this country, of which it is necessary to keep up the establishment. The army being established 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 a trial by their officers. That has induced the absolute necessity of a mutiny act, accompanying the army. It has happened, indeed, at different periods of the government, that there has been a strong opposition to the establishment of the army. But the army being established and voted, that led to the establishment of a mutiny act. A remarkable circumstance happened in the reign of George the First, when there was a division of parties on the vote of the army. The vote passed, and the army was established, but from some political incidents which had happened, the party who opposed the establishment of the army would have thrown out the mutiny bill. Sir Robert Walpole was at the head of that opposition, and when some of their most sanguine friends proposed it to them, they said, as there was an army established, and even if the army was to be disbanded, there must be a mutiny act, for the safety of the country. It is one object of that act to provide for the army; but there is a much greater cause for