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California Law Review


MARCH, 1924

Number 3

Jurisdiction of Military Tribunals in the
United States Over Civilians



Returning to the opinion of Mr. Chief Justice Chase in Ex parte Milligan, there is, under the Constitution, a second kind of military jurisdiction, "to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion or civil war within states or districts occupied by rebels treated as belligerents; ... 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."145 Ordinarily in our history this jurisdiction has been exercised on foreign soil, during a formally declared war; but "when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land." The courts are bound by the determination of the President that civil war exists.147

"Territory is considered occupied when it is actually placed under the authority of the hostile army."148 "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." Accordingly, where possible, the occupant maintains the local courts in

146 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 141.
146 The Prize Cases (1862) 67 U. S. (2 Black) 635, 667.

147 The Prize Cases, supra, n. 146.

148 Art. 42, Annex to Hague Convention No. IV of Oct. 18, 1907.
149 Id., Art. 43.

their operation.150 But where this is impracticable, the occupant may establish a government of his own, not only on foreign soil but in the occupied territory of a belligerent rebel.151 The government as instituted does not depend on the Constitution of the invader, but on the laws of war,152 and the jurisdiction and authority of tribunals created by the conqueror depends upon his discretion. 153 During the Civil War, the President or military commander appointed, under authority of the laws of war, courts variously designated. The so-called Provost Courts, which ordinarily exercised the functions of Police Courts, when so empowered by the commander in the field, took cognizance of important civil actions.154 In The Grapeshot155 and in Burke v. Miltonberger156 the authority of the Provisional Court to entertain a case in admiralty, and a civil action, respectively, was upheld by the Supreme Court of the United States, while United States v. Reiter157 was a trial for murder. In Leitensdorfer v. Webb158 the authority of a Circuit Court established by military power on Mexican soil to continue its functions after the cession of the territory, but before organization of a civil government, was upheld. Here it may be noted that though we acquired the island of Guam in 1899, Congress has never seen fit to abolish the military government thereof.

While these courts are civil in appearance, they are nevertheless established by military authority and are in reality military tribunals.159 Usually they have dealt with matters normally under the jurisdiction of the local courts. But the fact of the occupation brings into existence a class of offenses against the safety of the invading army, which cannot arise in time of peace. These are generally denominated offenses against the laws of war. One expressly recognized by the Hague Convention is espionage.160 Among those recognized by our Rules of Land Warfare are: using forbidden weapons, killing wounded, refusal of quarter, ill-treatment of prisoners, breach of parole, abuse of flag of truce or of the Red

150 Rules of Land Warfare, U. S. War Dept., par. 299.

151 Texas v. White (1868) 74 U. S. (7 Wall.) 700; U. S. v. Reiter (1865) Fed. Cas. No. 16,146, 4 American Law Register (N.S.) 534.

152 Rutledge v. Fogg (1866) 43 Tenn. 554, 91 Am. Dec. 299.

153 Heffernan v. Porter (1869) 46 Tenn. 391, 98 Am. Dec. 459.

154 Mechanics and Traders Bank v. Union Bank (1874) 89 U. S. (22 Wall.) 276.

155 (1869) 76 U. S. (9 Wall.) 129.

156 (1873) 86 U. S. (19 Wall.) 519.
157 Supra, n. 151.

158 (1857) 61 U. S. (20 How.) 176.

159 Handlin v. Wickliffe (1873) 79 U. S. (12 Wall.) 173.

160 Art. 29, Annex to Hague Convention No. IV of Oct. 18, 1907.

Cross flag, use of civilian clothing on the battlefield, poisoning wells, and pillage. The foregoing may be committed by members of the enemy's armed forces.161 Others peculiar to civilians are: committing hostilities without having acquired the belligerent character,162 war treason,163 war rebellion,184 highway robbery and war piracy,' acting as armed prowlers or marauders,166 and miscellaneous offenses against regulations promulgated by the occupant.167 In some cases jurisdiction over the less serious of these offenses has been granted to Provost Courts, as in the area occupied by the American Forces in Germany during the World War.168 In general, however, we have not conferred this jurisdiction on these courts, but on the military commission.

On the continent of Europe these offenses appear to be handled by the court-martial. This has also been true in the British service. But though our system of courts-martial was derived from the British, there is a fundamental difference in the systems; the British courts were established by royal commission to supplement, and later to supersede, the Curia Militaris, or Court of the Constable and Marshal.169

Though Parliamentary sanction for courts-martial was granted by the statute 1 Wm. & M. s. 1 c. 5, and by more comprehensive later enactments, nevertheless the war-time authority of British courts-martial abroad may still depend in part on royal order.170 In our service the jurisdiction of our earliest courts-martial was derived from Resolves of the Continental Congress. That body promulgated Articles of War in 1775 and again in 1776. The latter Articles11 are almost an exact copy of the British royal Articles of 1774;172 where the name of Congress appears it is substituted in ten places for the British Crown or its ministers and only once for Parliament; and as Congress in the Declaration of Independence contended that the jurisdiction of Parliament was "foreign to our Constitution and unacknowledged by our laws," and indicted the

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171 (Sept. 20, 1776) 5 Journal of the Continental Congress, 788; Davis, Military Law of the United States, Appendix B.

172 Davis, Military Law of the United States, Appendix B.

British king for giving assent to Parliamentary acts of "pretended legislation," it is safe to assume that the Continental Congress deemed itself the successor of the British Crown in a purely executive union of thirteen legislatively independent states, and that the American Articles of 1776 were therefore an executive and not a legislative act. When the Articles of Confederation were adopted July 9, 1778, the United States in Congress assembled found itself vested with mixed executive and legislative powers; among these was the power to make "rules for the government of the land and naval forces".178 When the Constitution was adopted, however, there was a sharp segregation of executive and legislative powers; the President became commander-in-chief of the Army and Navy,174 while the power to "make rules for the government and regulation of the land and naval forces" was definitely placed in the legislative powers of Congress.175 One of the earliest acts of Congress was to continue in force the then existing Articles of War.176

So while before the Confederation our courts-martial may have exercised a customary jurisdiction under the laws of war, since no such jurisdiction was granted them by the Articles in force under the Confederation or Constitution, they early ceased to exercise such jurisdiction. Further, under the Constitution they were creatures of statute, and no President or military commander could grant them such jurisdiction. In 1818, General Jackson, invading Florida to punish the depredations of certain Indians, tried two British subjects by court-martial and carried the sentence of death into execution. This extension of jurisdiction was the subject of a debate in Congress, and was generally held to be illegal. In 1847, General Scott found himself unable adequately to punish soldiers of his command in Mexico for crimes ordinarily cognizable by the civil courts, as they were not covered by any Articles of War; and at the same time he found himself unable to punish natives for such offenses against his forces. He therefore enumerated certain offenses, and established what he called "martial law" as a "supplemental code in, and about, all cities, towns, camps, posts, hospitals, and other places which may be occupied by any part of the forces of the United States, in Mexico, and in, and about, all columns,

178 Articles of Confederation, Art. IX.

174 U. S. Const., Art. II, § 2.

175 Id., Art. I, § 2.

176 Act of Sept. 29, 1789, 1 U. S. Stats. at L. 96.

escorts, convoys, guards and detachments, of said forces, while engaged in prosecuting the existing war in, and against the said republic and while remaining within the same". He then provided that the enumerated crimes

"... whether committed: 1. By any inhabitant of Mexico, sojourner or traveler therein, upon the person or property of any individual of the United States forces, retainer or follower of the same; 2. By any individual of the said forces, retainer or follower of the same, upon the person or property of any inhabitant of Mexico, sojourner or traveler therein; or 3. By any individual of the said forces, retainer or follower of the same upon the person or property of any other individual of the said forces, retainer or follower of the same-shall be duly tried under the said supplemental code.

"10. For this purpose it is ordered, that all offenders, in the matters aforesaid, shall be promptly seized, confined and reported for trial, before military commissions."177

This was the genesis of the military commission. In the Civil War it was used for the trial of two classes of offenses, committed whether by civilians or by military persons, viz., I. Violation of the laws of war. II. Civil crimes, which, because the civil authority is superseded by the military and the civil courts are suspended, cannot be taken cognizance of by the ordinary tribunals.178 It might take cognizance of offenses, committed during the war before the initiation of military government but not then brought to trial.179 The jurisdiction might be exercised up to the declaration by competent authority of the termination of the war status.180 During the Civil War, some jurisdiction was conferred by statute on these tribunals, but with the exception of the provision relating to spies these statutes are not now in force.181 During the Spanish War the military commission was used on foreign soil, and its jurisdiction over civilians between the time of the signature of the peace treaty and the ratification was upheld in Ex parte Ortiz.182 This tribunal was again established in Germany by Orders No. 1, Officer in Charge of Civil Affairs in Occupied Territory, A. E. F., December 18, 1918, for the trial of inhabitants offending against the laws of war or the military government.

177 General Orders, 267, Headquarters of the Army, Sept. 17, 1847.
178 Dig. Ops. J. A. G. (1912) p. 1067.

179 Loc. cit.

180 Id., p. 1068.

181 Loc. cit.

182 (1900) 100 Fed. 955.

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