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Meanwhile, by Act of March 3, 1863 (later incorporated as Article of War 58 of the Code of 1874),183 jurisdiction over soldiers in time of war for the more serious common-law crimes was conferred on courts-martial; and this jurisdiction has been amplified and incorporated in the later codes.184 In addition, by Act of March 2, 1913185 and again by Act of August 29, 1916186 and Act of June 4, 1920187 general courts-martial were given jurisdiction over persons who by the laws of war were subject to trial by military tribunals, and by the two latter acts military commissions were specifically given jurisdiction over the offenses of dealing in captured or abandoned property, by any person subject to military law,188 of relieving, corresponding with, or aiding the enemy,189 and of being found lurking or acting as a spy.190 In both statutes it was also provided (words italicized appearing in the Act of June 4, 1920 only, bracketed words in the Act of August 29, 1916 only):

"Article 15. Jurisdiction not exclusive. The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts. or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be [lawfully] triable by such military commissions, provost courts, or other military tribunals."

Jurisdiction of military tribunals of one sort or another in hostile occupied territory of a belligerent, whether foreign enemy or insurgent or hostile Indian tribe191 is therefore undoubted. The jurisdiction extends over civilians, whether hostile or neutral,192 and "the law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes concerning the spy, the war traitor, or the war rebel."193

183 12 U. S. Stats. at L. 257, 284, 736, incorporated in U. S. Rev. Stats. § 1342.

184 Act of Aug. 29, 1916, ch. 418, § 3, 39 U. S. Stats. at L. 650, U. S. Comp. Stats. (1918 ed.) §§ 2308a, 2308a (1)-(121), 9 Fed. Stats. Ann. (2d ed.) 1243. Act of June 4, 1920, ch. 2, supra, n. 19.

185 37 U. S. Stats. at L. 722, U. S. Comp. Stats. (1918 ed.) § 2308a (8)-(41), 9 Fed. Stats. Ann. (2d ed.) 1256.

186 Supra, n. 184.

187 41 U. S. Stats. at L. 787, U. S. Comp. Stats. (1923 Supp.) § 2308a, Fed. Stats. Ann (1920 Supp.) 330.

188 Art. War 80.

189 Art. War 81.

190 Art. War 82.

191 Holmes v. Sheridan (1870) Fed. Cas. No. 6644, 1 Dill, 351.

192 Rules of Land Warfare, par. 428.

193 Gen. Orders, 100, Headquarters of the Army, 1863, Art. 102.


We are now ready to consider the third kind of military jurisdiction described by Mr. Chief Justice Chase. He says that this "is 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. . . . [it] 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 safety and private rights."194

While the above classification is generally accepted, the statement as to the manner in which martial law can be called into action, and as to the jurisdiction of military tribunals thereunder was dictum in a dissenting opinion, and has not established the law.

Some confusion results from a study of the authorities, by reason of the fact that the term "martial law" is not always used in the same sense. In the British usage it includes both military government and martial law as defined by Mr. Chief Justice Chase. In some cases it is confused with military law. Sir Matthew Hale says:

"First, that in truth and reality it is not a law, but something indulged, rather than allowed as a law. The necessity of government, order, and discipline in an army, is that only which can give these laws a countenance; quod enim necessitas cogit defendi.

"Secondly, this indulged law, was only to extend to the members of the Army, or those of the opposite army, and never was so much indulged as intended to be exercised upon others . . .

"Thirdly, that the exercise of martial law, whereby any person should lose his life, or member, or liberty, may not be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land."195 And again he says, "that regularly, when the king's courts are open, it is a time of peace in judgment of law" 196 These passages are cited with approval by Blackstone,197 who further regrets that, though express legislative sanction had been given for the exercise

194 Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 142, 18 L. Ed. 281. 195 Hale, Common Law, 42.

1961 Hale, Pl. Cr. 347.

1971 Bl. Comm. 413.


of "martial law" in capital cases, nevertheless Parliament still permitted the king to denounce and fix the penalties for less serious offenses committed by soldiers. Blackstone admitted that in view of 1 Wm. & M. s. 2 c. 2, "martial law" could extend to soldiers in time of peace. Both Hale and Blackstone were, then speaking of "military law"198 a military law which was "indulged, rather than allowed as a law," but which was embodied in executive articles of war dating back at least to the reign of Richard I (see the Articles of various monarchs in 2 Grose, Military Antiquities); and which was first administered by the Court of the Constable and Marshal199 under customary authority as restricted by 8 Ric. 2, c. 5; 13 Id., c. 2; and 1 Hen. 4, c. 14,200 later by the Court of the Marshal;201 and later by the court of war or court-martial under royal commission.202

It appears, however, that from time to time attempts were made to extend this jurisdiction beyond the army. Hale informs us that Edmund of Kent208 and Thomas of Lancaster204 were taken in arms against the king and condemned by a sort of military court, but that their attainders were reversed by Parliament in 1 Edw. III, "for the reason that no man ought to be adjudged to death for treason or for any other offense without being arraigned and put to answer." Again we find the term in its proper sense used in the Petition of Right of 3 Car. I, wherein it was prayed that no commission should issue in England to proceed according to martial law. In Grant v. Gould,205 however, the term is used in the sense of "military government" or "martial law," as distinguished from "military law," and it was so used in Marais v. General Officer.206

Early cases in the United States exhibit similar confusion. The case of Smith v. Shaw 207 uses the term in the sense of military authority exercised in the immediate vicinity of the military forces, in time of war, over spies; in other words, probably in the sense of "military law". In a number of cases it is used in the sense of

1988 Ops. Atty. Gen. 366.

1991 Grose, Military Antiquities, 216, 227; 2 Id., 53.

200 2 Hawkins, Pl. Cr. 12.

2012 Grose, Military Antiquities, 54, 86 et seq.; contra, 3 Bl. Comm. 103;

Hale, Common Law, 40; 7 Mod. 127.

202 2 Grose, Military Antiquities, 86 et seq., 124, 126, 137, 152.

203 Hale, Common Law, 42.

204 1 Hale, Pl. Cr. 347.

205 (1792) 2 Hen. Blackst. 99.

206 [1902] A. C. 109, 71 L. J. P. C. 42, 85 L. T. 734, 50 W. R. 273, 18 T. L. R. 185.

207 (1815) 12 Johns. 257, 5 N. Y. Com. Law. Rep. 383.

"military government," e.g., United States v. Diekelman,208 Winter v. Dickman, 209 Jeffries v. State, 210 Kimball v. Taylor.211 In many cases, however, it is used conformably to the classification of Mr. Chief Justice Chase.

The cases are not in accord, however, as to just what authority exercised in the home territory constitutes martial law. Some consider that it exists when the privilege of the writ of habeas corpus is suspended, or when the militia is called forth to enforce the laws of the Union, or when the governor, pursuant to the provisions of the State Constitution, declares that a state of insurrection exists and sends in the militia to suppress the same. In Luther v. Borden212 the court, in upholding the power of the State of Rhode Island to declare martial law, referred only to a resort to the laws and usages of war, no more force being used than might be necessary, the parties being answerable for excesses. On the other hand, the courts in some cases have used the term to describe a condition of affairs in which military forces either lawfully or unlawfully exercise jurisdiction over matters usually confided to the judiciary. As the object of this inquiry is to discover the extent of the jurisdiction of military tribunals over civilians, we shall therefore omit from consideration those cases which uphold the legality of "martial law," but which do not decide anything bearing on the jurisdiction of military tribunals.

We have already noted that military tribunals may function practically without restriction in hostile occupied territory-whether that territory be that of a foreign foe or of a rebel treated as a belligerent. May they function similarly in parts of the United States not in belligerent rebellion? This question involves the following considerations: What is the difference between a mere insurrection and a belligerent rebellion? How is the existence of one or the other condition determined? Under what conditions may the guarantees of the Constitution against military trials be set aside in parts of the home soil which are not in belligerent rebellion?

There are various decisions describing the difference between a belligerent rebellion and a mere insurrection. Perhaps the following quotations will serve to give an adequate idea:

"Several of these states have combined to form a new confederacy, claiming to be recognized by the world as a sovereign

208 (1875) 92 U. S. 520, 23 L. Ed. 742.

209 (1868) 42 Ala. 92.

210 (1866) 39 Ala. 655.

211 (1874) Fed. Cas. No. 7775, 2 Woods, 37.

212 (1849) 48 U. S. (7 How.) 1, 12 L. Ed. 581.

state. . . . It is no loose, unorganized insurrection, having no defined boundaries or possessions. It has a boundary marked by lines of bayonets and which can be crossed only by force; south of this line is enemies' territory, because it is claimed and held in possession by an organized, hostile, and belligerent power.'


"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."214

"There is a very great distinction between insurrection and war. It is this: war is an act of sovereignty, real or assumed; insurrection is not; war makes enemies of the inhabitants of the contending states; but insurrection does not put beyond the pale of friendship the innocent in the affected district. creates the rights and duties of belligerency, which to a mere insurrection are unknown. Doubtless an insurrection may become war, as was the case with the Great Rebellion; but it does not become so in the legal sense until the rebellious party assumes legal form.'


If, then, a state of war is different from a state of insurrection, by whom may a state of civil war be recognized? The courts follow the decisions of the political branches of the Federal government on this question.216 Whether or not the political branches of a State government can recognize a condition of civil war, so as to accord to the insurrectionary party belligerent rights, and so as to itself acquire the power to set aside the guarantees of the State Constitution in the affected region, is a disputed question. The Federal Constitution provides:

"No state shall, without the consent of Congress, . . . engage in war, unless actually invaded or in such imminent danger as will not admit of delay.'


That the term "invaded" does not include insurrection or other domestic violence is indicated by the use of the terms, "insurrections" and "invasions" side by side in Article I, section 8, of "rebellion" and "invasion" in section 9, and of "invasion" and "domestic violence" in Article IV, section 4. The "imminent danger" under which a State may engage in war is not defined, but some help

213 The Prize Cases (1862) 67 U. S. (2 Black) 635, 673. 214 The Prize Cases (1862) 67 U. S. (2 Black) 635, 667.

215 Ex parte McDonald (1914) 49 Mont. 454, 474, 143 Pac. 947, L. R. A. 1915B 988, Ann. Cas. 1916A 1166.

216 Sutton v. Tiller (1869) 6 Cold. (Tenn.) 593, 98 Am. Dec. 471; U. S. v. One Hundred and Twenty-nine Packages (1862) Fed. Cas. No. 15,941; The Prize Cases (1862) 67 U. S. (2 Black) 635.

217 U. S. Const., Art. I, § 10.

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