Legislation is now much desired here also to obviate the effect of the Taff Vale case and that of the Danbury hatters which applies its principals to interstate commerce; that is to say, which shall secure the funds of a trades-union to its benevolent purposes, or even to its use in industrial disputes, strikes, boycotts, etc., without making it liable for the results of litigation. In these cases the moneys in the treasury of a trades-union, although unincorporated, have been held responsible for damages awarded in a suit brought against the union or its members for conspiracy under the Sherman Act, or otherwise. It is, however, difficult to see how such legislation with us could be devised so as to be constitutional, for it would necessarily extend only to a certain class of persons, and be framed to exempt them alone from a certain definite legal liability. Nevertheless it has in England been enacted.[1]
[Footnote 1: See above, p. 268: The Trade Disputes Act, 1906, sec. 4.]
CHAPTER XIII
MILITARY AND MOB LAW, AND THE RIGHT TO ARMS
We now come to a field of legislation related to the early English constitutional right to be protected from military law or molestation by the army, and the corresponding right of protection of one's person, or one's house, by force, if necessary.
The right of law, even as against the military, has been anticipated in an early chapter; the right to try an officer, or even a soldier obeying orders, in the ordinary tribunals, for homicide, or for ordinary trespass, as when, in the Dorr rebellion in Rhode Island, a company of militia invaded a woman's house.[1] The constitutional principle against the quartering of soldiers upon private dwellings, and the limitations to the military power caused by the strict confinement of the use of the army to cases of invasion or insurrection, have been added by American constitutions. But most important of all is the supremacy of the common law; the grudging permission of military law even to the army themselves only by a temporary vote; for in England, the Mutiny Act must be passed annually, and in the United States, appropriations for the army and navy may not last over two years. It is these statutes alone that make possible the very government of the army, the enforcement of the contract of enlistment, and the condign punishment of deserters.
[Footnote 1: Martin v. Mott, 12 Wheaton, 19.]
For example, let us remember the Boston Massacre. Ten years before the Revolution, some turbulent men, mostly negroes, started a riot against British soldiers on what is now State Street (then King Street), and under the orders of the commanding officer the soldiers fired, and two or three men were killed. Yet although the colonies were already under military occupation, and their courts and legislatures more than unpopular with the home government, these British soldiers were tried for manslaughter and murder, not in England, but in the ordinary common-law courts of the Colony of Massachusetts. James Otis defended them and they were acquitted. The fact that a monument to Crispus Attocks, the negro, now stands on Boston Common, and that ten or twelve years later the British flag was expelled from Boston to seek refuge in New York, does not modify the significance of the incident. Some years since in a Pennsylvania strike a small company of militia, being attacked by a mob, were ordered to fire. They did so, and killed one of the striking rioters. It was found out which private had fired the fatal shot; he was indicted and tried for murder; and it was ruled that the order of the commanding officer was no defence.
These principles, we should be reminded, are fundamental; in our own country in time of peace, or even in time of war, except in hostile territory, there is no such thing as martial law; and no such thing as military law, except for the army itself, and then only by the sufferance of a biennial vote, which vote also limits the duration of existence of the regular army; besides which, all our State constitutions and the Declaration of Independence have a general provision against standing armies. The proclamations of military officers, of mayors of cities, or even State governors, declaring martial law, or suspending the writ of habeas corpus, are of no legal validity; this is true of a similar proclamation by the President of the United States, though it was frequently done by Abraham Lincoln. The act of Mayor Ruef of San Francisco, even at the time of the earthquake, declaring martial law, or giving troops or vigilance committees summary powers of punishment, was a mere "bluff." Such an order, though in practice obeyed by all good citizens, would in no way protect those acting under it from prosecution in the criminal or civil courts.
On the other hand, the right to bear arms is inherent under English ideas, and this alone, with the corresponding right of political assembly, has served largely to maintain English liberty; while the absence of these two important rights has relieved countries like Russia from all fear of revolution. One has only to read Mr. George Trevelyan's vivid account of the difficulties of the Garibaldi movement to free Italy in 1860, to realize the enormous difficulties under which the great patriot labored from the absence of these underlying principles. Indeed, but for the connivance of the Piedmontese government in allowing somebody to sell a thousand condemned rifles, it is probable that there would have been no revolution in Sicily.