The American Judiciary

by Simeon E. Baldwin

Martial law is the exercise of military power. It is martial rule at the will of the commanding military officer.

In time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. Constitutional provisions may also affect the question. Those affecting the United States contain limitations stricter than those found in some of the State Constitutions. Ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[Footnote: Ex parte Milligan, 4 Wallace's Reports, 2, 127.]

The first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. General Jackson, in 1814, was at New Orleans in command of the military Department of the South. The city was threatened with invasion. He declared martial law, and not long afterwards arrested a Mr. Louaillier, a member of the State legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. Louaillier obtained a writ of habeas corpus from the District Judge of the United States (Judge Hall), directed to Jackson. The General, instead of obeying it, forthwith took possession of the original writ, arrested the Judge, and deported him from the city. Two days later despatches were received from the War Department officially announcing the conclusion of a treaty of peace. Judge Hall now returned, and a rule to show cause why Jackson should not be attached for contempt of court was issued. Jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. He had been told, he said, that the legislature was "politically rotten." The Governor had warned him that the State was "filled with spies and traitors," and advised, in the presence of Judge Hall, and with no dissent from him, that martial law be proclaimed. It seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." The lengthy paper, which was evidently written by a skilful lawyer, closed thus: "The powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of God, they have been attended with unparalleled success. They have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[Footnote: Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the General to answer certain interrogatories respecting his course of conduct, by a day appointed. He appeared on that day and declined to answer them, with this concluding shot:

"Your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which I was influenced, so it is expected that censure will constitute no part of that sentence, which you imagine it your duty to pronounce."[Footnote: Ibid., 387.]

The sentence was a fine of $1,000, which was at once paid.

The sympathy of the country was with "the hero of New Orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war. Some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. Nearly thirty years afterwards Congress made an appropriation for the purpose, and he received the full amount with interest (in all $2,700) from the treasury, as a legislative compensation for a judicial wrong. It would seem, however, that Judge Hall acted within the limits of his authority. When he signed the writ of habeas corpus the State was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the United States and Great Britain. The courts were open; his court was open; and the General should have respected the process which issued from it.[Footnote: Johnson v. Duncan, 3 Martin's La. Reports, O. S., 530. See opinion of Mr. Justice Miller in Dow v. Johnson, 100 U. S. Reports, 158, 193; Ex parte Milligan, 4 Wallace's Reports, 2, 127.]

During the Civil War, President Lincoln was responsible for many arrests by military officers of citizens of States remote from the seat of actual hostilities, and in which the courts were open. At its first outbreak he entirely suspended the privilege of the writ of habeas corpus, and one issued by the Chief Justice of the United States was disobeyed.[Footnote: Ex parte Merryman, Taney's Decisions, 246.] Congress in 1863 enacted that any order of the President, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. The State courts disregarded the statute. If, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of Congress cannot make the act a lawful one.[Footnote: Griffin v. Wilcox, 21 Indiana Reports, 370.] The Supreme Court of the United States had this question before them, but did not find it necessary to decide it.[Footnote: Bean v. Beckwith, 18 Wallace's Reports, 510; Beckwith v. Bean, 98 U. S. Reports, 266. (See the dissenting opinion of two justices in the last report, p. 292.)] Had they done so, it would probably have been answered in the same way.

Missouri inserted in her Constitution of 1865 a provision similar to the Act of Congress. This, of course, so far as that State could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the Federal Constitution.[Footnote: Drehman v. Stifle, 8 Wallace's Reports, 595.] The transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached.

The Governor of North Carolina (William W. Holden) in 1870 declared two counties in a state of insurrection. The militia were called out and a number of citizens arrested. Writs of habeas corpus in their favor were issued by Chief Justice Pearson of the Supreme Court of the State against the military officers.[Footnote: Ex parte Moore, 64 North Carolina Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at first refused, by the Governor's authority, to obey them. Similar writs were then obtained from the District Judge of the United States, upon which the petitioners were, by the Governor's orders, produced before the State judge. The result was the impeachment of Governor Holden and his removal from office.[Footnote: S. S. Cox, "Three Decades of Federal Legislation," 458.]

While martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. For that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can institute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. All such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. He cannot, however, in establishing such a temporary tribunal, give it the powers of an admiralty court over prize cases. The judgment in rem of an admiralty court, condemning a captured ship as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. No mere military court on enemy's territory occupies that position.[Footnote: Jecker v. Montgomery, 13 Howard's Reports, 498, 515.]