whole State with its influence, under a supposed exingency and justification for such an unusual course. I do not understand this

of

to be directly combated in the opinion just delivered by the ChiefJustice. That they could mean no other than the ancient martial law, often used before the Petition of Right, and sometimes since, is further manifest from the fact, that they not only declared 'martial' law to exist over the State, but put their militia into the field to help, by means of them and such a law, to suppress the action of those denominated 'insurgents,' and this without any subordination to the civil power, or any efforts in conjunction and in coöperation with it. The defendants do not aver the existence any civil precept which they were aiding civil officers to execute, but set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another construction of this act, somewhat less offensive, by considering it a mere equivalent to the suspension of the habeas corpus, and another still to regard it as referring only to the military code used in the armies of the United States and England. But when the legislature enacted such a system 'as martial law,' what right have we to say that they intended to establish something else and something entirely different? A suspension, for instance, of the writ of habeas corpus-a thing not only unnamed by them, but wholly unlike and far short in every view of what they both said and did? Because they not only said, eo nomine, that they established martial law,' but they put in operation its principles; principles not relating merely to imprisonment, like the suspension of the habeas corpus, but forms of arrest without warrant, breaking into houses where no offenders were found, and acting exclusively under military orders rather than civil precepts.

"Had the legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. A brief examination will show, also, that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them, in applying the provisions of those laws to a person situated like the plaintiff. For

nothing is better settled than that military law applies only to military persons; but 'martial law' is made here to apply to all. (Hough on Courts Martial, 384, note; 27 State Trials, 625, in Theobald Wolfe Tone's case.)

"The present laws for the government of the military in England, also, do not exist in the vague and general form of martial law; but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny, and to preserve good discipline. (1 Bl. Com. 412; 1 MacArthur on Courts Martial, p. 20.) So, in this country, legislation as to the military is usually confined to the General Government, where the great powers of war and peace reside. And hence, under those powers, Congress, by the act of 1806 (2 Stat. at Large, 359), has created the Articles of War, 'by which the armies of the United States shall be governed,' and the militia when in actual service, and only they. To show this is not the law by which other than those armies shall be governed, it has been found necessary, in order to include merely the drivers or artificers 'in the service,' and the militia after mustered into it, to have special statutory sections, (See articles 96 and 97.) Till mustered together, even the militia are not subject to martial law. (5 Wheat. 20; 3 Stor. Com. Const. § 120.) And whenever an attempt is made to embrace others in its operation, not belonging to the military or militia, nor having ever agreed to the rules of the service, well may they say, we have not entered into such bonds-in hæc vinculæ, non veni. (2 Hen. Bl. 99; 1 Bl. Com. 408, 414; 1 D. & E. 493, 550, 784; 27 State Trials, 625.) Well may they exclaim, as in Magna Charta, that 'no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land.' There is no pretence that this plaintiff, the person attempted to be arrestod by the violence exercised here, was a soldier or militiaman then mustered into the service of the United States, or of Rhode Island, or subject by its laws to be so employed, or on that account sought to be seized. He could not, therefore, in this view of the case, be arrested under this limited and different kind of military law, nor houses be broken into for that purpose and by that authority.

"So it is a settled principle even in England, that, 'under the

British Constitution, the military law does in no respect either supersede or interfere with the civil law of the realm,' and that 'the former is in general subordinate to the latter' (Tytler on Military Law, 365); while martial law' overrides them all. The Articles of War, likewise, are not only authorized by permanent rather than temporary legislation, but they are prepared by or under it with punishments and rules before promulgated, and known and assented to by those few who are subject to them, as operating under established legal principles and the customary military law of modern times. (1 East, 306, 313; Pain v. Willard, 12 Wheat. 539, and also 19; 1 MacArthur, Courts Martial, 13 and 215.) They are also definite in the extent of authority under them as to subject-matter as well as persons, as they regulate and restrain within more safe limits the jurisdiction to be used, and recognize and respect the civil rights of those not subject to it, and even of those who are in all other matters than what are military and placed under military cognizance. (2 Stephen on Laws of Eng. 602; 9 Bac. Abr., Soldier, F; Tytler on Military Law, 119.) And as a further proof how rigidly the civil power requires. the military to confine even the modified code martial to the military, and to what are strictly military matters, it cannot, without liability to a private suit in the judicial tribunals, be exercised on a soldier himself for a cause not military, or over which the officer had no right to order him; as, for example, to attend school instruction, or pay an assessment towards it out of his wages. (4 Taunt. 67; 4 Maule & Selw. 400; 2 Hen. Bl. 103, 537; 3 Cranch, 337; 7 Johns. 96.)

"The prosecution of Governor Wall in England, for causing, when he was in military command, a soldier to be seized and flogged so that he died, for an imputed offence not clearly military and by a pretended court martial without a full trial, and executing Wall for the offence after a lapse of twenty years, illustrate how jealously the exercise of any martial power is watched in England, though in the army itself and on its own members. (See Annual Register for 1802, p. 569; 28 State Trials, p. 52, Howell's ed.)

"How different in its essence and forms, as well as subjects, from the Articles of War was the "martial law" established here

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 reposing 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 opposition 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.

6

"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.