This right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. During our Civil War, in 1864, President Lincoln, as commander in chief of the army and navy, set up a "Provisional Court for the State of Louisiana," after the Southern portion of that State had been occupied by the national forces and martial law declared. Judge Charles A. Peabody of New York, who had been a justice of the Supreme Court of that State, was commissioned to hold it and to dispose of both civil and criminal causes. Its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[Footnote: The Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical Association for 1892, 199.]
In the original proclamation of martial law in Louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. One of the State courts, known as a District Court of the City and Parish of New Orleans, the judge of which took the oath of allegiance to the United States, continued to sit and dispose of business in the usual course. A few months later a citizen of New York sued a military officer before it for ravaging a plantation which he owned in Louisiana, and recovered judgment. A suit upon it was afterwards brought in Maine, where the defendant resided. He pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. The case ultimately came before the Supreme Court of the United States. Here it was thrown out, the court saying that the District Court of New Orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[Footnote: Dow v. Johnson, 100 U. S. Reports, 158.] So far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other States.[Footnote: Pepin v. Lachenmeyer, 45 New York Reports, 27.] They have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[Footnote: Coleman v. Tennessee, 97 U. S. Reports, 509, 519.]
In 1864, during the war, but in Indiana, a State distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the United States, as a member of a secret organization known as the Order of American Knights or Sons of Liberty. The trial resulted in his conviction, and a sentence to death, which was approved by the President of the United States. Before it could be executed, he applied to the Circuit Court of the United States for the District of Indiana for a writ of habeas corpus. The judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the Supreme Court of the United States.[Footnote: Ex parte Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of Chief Justice Marshall when any great question of a political nature has been involved. Five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful State where the courts are open and their process unobstructed. Four justices dissented, and Chief Justice Chase thus summarized their conclusions:
There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights.
We think that the power of Congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.[Footnote: Ex parte Milligan, 4 Wallace's Reports, 141.]
The Constitution of the United States contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the Constitutions of the States. It may well be that martial law has for the United States a narrower meaning than it may possess in a particular State.
The legislature of Rhode Island in 1842, during "Dorr's Rebellion," by a Public Act put that State under martial law until further order, or until its termination should be proclaimed by the Governor. A squad of militia broke into the house of a private citizen to arrest him as an abettor of Dorr, and were afterwards sued in trespass before the civil courts. The cause finally came before the Supreme Court of the United States, where (one justice only dissenting) it was held that the Act could not be pronounced an unjustifiable exercise of legislative power under any provision of the federal Constitution.[Footnote: Luther v. Borden, 7 Howard's Reports, 1, 45.] Whether the courts of Rhode Island could have taken a different view, under the fundamental laws of the State, was not decided.[Footnote: Ex parte Milligan, 4 Wallace's Reports, 2, 129.]
On the other hand, there are States in which the Constitution explicitly provides that "the military power shall always be held in an exact subordination to the civil authority and be governed by it."[Footnote: Constitution of Massachusetts, Declaration of Rights, Art. 17. Cf. Constitution of Colorado, Art. 2, Sec, 22.] It is a serious question whether, under such provisions, a legislative or executive declaration of martial law in time of peace, in order the better to cope with some local disturbance, is to be regarded as an expression of the will of the civil authority, by virtue of which the civil courts lose the power of discharging on habeas corpus one restrained of his liberty by military command. That it is such an expression was held in Colorado in 1904, but by a court composed of only three judges, of whom one, in a dissenting opinion, observed that the decision of his associates "is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice that I cannot properly characterize it." A similar question arose, but was not judicially determined, in Arkansas in 1874. There was a contest over the election of Governor. The Constitution provided that such contests should be decided by the joint vote of both houses of the legislature. Baxter, the candidate who was elected on the face of the returns, was declared elected by the President of the Senate and took the oath of office. Brooks, the other candidate, presented a petition for a contest to the lower house, which refused to grant it. He then applied to the Supreme Court on quo warranto proceedings, which threw out the case for want of jurisdiction.[Footnote: State v. Baxter, 28 Arkansas Reports, 129.] A similar suit was then brought in a nisi prius court, on which judgment was rendered in his favor,[Footnote: This judgment was reversed on appeal. Baxter v. Brooks, 29 id., 173.] and he was put in possession of the executive chambers by an armed force which he assembled. Baxter then declared martial law in the county in which the capital was situated, and arrested two of the judges of the Supreme Court on their way to attend a special session called to take action in mandamus proceedings brought in behalf of Brooks. They were rescued after a day or two by United States troops and proceeded to join their associates. The court then gave judgment for Brooks in his third suit, directing the State Treasurer to pay his warrants. At this point the legislature applied to the President of the United States for protection against domestic violence, under Art. IV of the Constitution of the United States, and his compliance by a proclamation officially recognizing Governor Baxter and ordering the Federal troops to support him closed the history of this disgraceful incident.[Footnote: McPherson, "Hand-book of Politics for 1874," 87-100.]
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