MILITARY LAW - A STUDY IN COMPARATIVE LAW

I

AGRANITE boulder lies in a fertile plain underlaid by lime

stone. To the passer-by it is merely a rock. To the tiller of the soil it is merely an obstacle. Its existence is taken for granted and its presence needs no explanation. The embryonic scientist who has advanced far enough in his studies to know granite from limestone and to know that they are not ordinarily associated in situ, recognizes in the boulder an alien, an intruder. He does not know whence it came or how it reached its present location, but he realizes that its position upon fertile soil in a limestone formation needs some explanation. This is the beginning of wisdom with reference to the granite intruder. The explanation which the scientist will give for the phenomenon depends upon the extent of his knowledge and upon his previous beliefs and opinions. In the early days of geology, Noah's Flood was a sort of first aid to the perplexed, and served as a solution of all sorts of puzzles. Our scientist may invoke this theory and assume that the boulder was washed from a remote outcrop by the great flood. At a later period and with wider knowledge, he may find that something more substantial than water is necessary to explain other phenomena which he has discovered; and he may believe that it was carried down from some Laurentian formation by some great ice movement. What further explanations scientists may offer us in the future are matters of conjecture. The starting point, however, is the recognition of the fact that the granite boulder came from some remote point and that its presence here needs an explanation of some sort.

In the last year and a half many of us who have been studying Anglo-American law have been attempting to teach military law. We have recognized at once that in many respects it is an alien. Its foreign character does not consist in its content. As far as

1 For a brief comparison of English Military Law with that of France, Germany, Russia and Italy, see J. E. R. Stephens, "English and Continental Military Codes," 5 JOURN. OF COMP. LEGIS. (N. S.), 244.

may be, considering the great difference between the organization of the Army and the organization of a peaceful industrial society, the content of military law is Anglo-American criminal law based primarily upon its Maryland form, as far as this is recognized and adopted in the District of Columbia.2 Nor is the pro

2 A MANUAL FOR COURTS-MARTIAL [U. S. Army] (corrected to April 15, 1917), paragraph 338 (3, d).

The common law in force in the District of Columbia is the common law of Maryland.

"We think, therefore, that if it be a common-law offence, committed in this county, it is within the jurisdiction of this Court, whose common-law jurisdiction is derived from the common law of Maryland, which was, by the cession of Maryland and the acceptance of Congress, under the provision in the Constitution of the United States, transferred from Maryland to the United States, with that remnant of State sovereignty, which, after the adoption of the Federal Constitution, was left to Maryland. All the State prerogative which Maryland enjoyed under the common law, which she adopted, so far as concerned the ceded territory, passed to the United States. All the power which Maryland had, by virtue of that common-law prerogative, to punish, by indictment, offenders against her sovereignty, and to protect that sovereignty, became vested in the United States; and authorized them to punish offenders against their sovereignty, and to protect that sovereignty by the same means, so far as regarded the territory ceded.

"We therefore think that, in regard to offences committed within this part of the district, the United States have a criminal common law, and that this Court has a criminal common-law jurisdiction." United States v. Watkins, 28 Fed. Cas. No. 16649, 3 Cranch C. C. (U. S.) 441, 452 (1829).

"As against the United States regarded as co-extensive with the Federal union of States and operating within the territorial limits of the States, it is undoubtedly true that there are no common law offences; for the jurisdiction there given to the United States by the Federal Constitution is distinctly and expressly restricted to the powers enumerated in the Constitution. But the statement was not intended to have application to the District of Columbia. The question as to the authority of the United States in this District is not what power has been conferred upon it, but rather what power has been inhibited to it. Subject to the limitations imposed by the Constitution itself and by the spirit of our free institutions, the United States have supreme and exclusive power over the District of Columbia, and they are not limited to the governmental powers in the Constitution specifically enumerated as defining their jurisdiction for the country at large. For the District of Columbia it is competent for the Congress of the United States to declare that the common law is to be regarded as in force, and even in the absence of express statutory enactment we should have to hold, in view of the circumstances, that the common law in its entirety, both in its civil and criminal branches, except in so far as it has been modified by statute or has been found repugnant to our conditions, is in force in the District of Columbia. But we are not left to implication in that regard.

"At the time of the cession of the Territory of Columbia by the State of Maryland to the Federal Union, its law, as well as that of the rest of the States, was the common law of England, both civil and criminal, so far as that common law was suited to our condition and was unaffected by statute. And with the common law the State of

cedure the point at which it differs from Anglo-American law.3 It is true that neither grand jury nor indictment is necessary. Charges are prepared under authority of an officer of competent rank without the approval of any independent body.5 There is no trial by jury. The court-martial passes upon the facts. The reviewing authority exercises a freedom in dealing with the findings which is impossible in ordinary criminal law where the action of the grand jury and the verdict of the petit jury are both guaranteed by constitutional provisions. At the same time the procedure is not unlike that of ordinary criminal courts which try minor offenses in which neither indictment nor petit jury are required. If dignity and military form could be added to a police court, the procedure would not be unlike that of a court-martial. The great difference between military law and our Anglo-American law is far deeper than this. While the content is borrowed in part from the common law and in part shaped by the needs of military service, while the procedure is a summary AngloAmerican criminal procedure, without grand jury or petit jury, Maryland had adopted a considerable part of the statute law of England. When by the act of February 27, 1801 (2 Stat. 103), the Congress of the United States finally accepted the cession and assumed jurisdiction over the ceded District, it was specifically provided 'that the laws of the State of Maryland, as they now (then) exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States and by them accepted.' This express enactment, if any such enactment was needed at all, was amply sufficient to continue in force and to perpetuate to the present day in the District of Columbia the common law of England as it existed in Maryland at that time, with all the existing statute legislation of the State and all the statute legislation of England that had been adopted by Maryland. And upon that theory of the law we have been conducting our affairs for nearly a hundred years. It is very true that much of the criminal branch of our common law has either become obsolete or has been obliterated by statutory enactment upon the same subject. Nevertheless, it is true that where it has not been repealed by express statutory provision, or modified by inconsistent legislation, or where it has not become obsolete or unsuited to our republican form of government, the common law of England in all its branches, both civil and criminal, remains to-day the law of the District of Columbia, and it has been repeatedly so held. See United States v. Watkins, 3 Cranch C. C. 441; United States v. Marshall, 6 Mackey, 34; United States v. Hale, 4 Cranch C. C. 83." De Forest v. United States, 11 App. D. C. 458, 465, 466 (1898). For a discussion of the history of the Court-Martial, see WINTHROP, MILITARY LAW AND PRECEDENTS, 2 ed., Chap. V.

Fifth Amendment to Constitution of United States.

5 MANUAL FOR COURTS-MARTIAL [U. S. Army] (corrected to April 15, 1917), paragraphs 62-64.

Ibid., paragraphs 294-304. 'Ibid., paragraphs 369-400.

the great difference between military law and Anglo-American law is found in the form of each and in the method of growth.

To those who are familiar with Anglo-American law and Roman law and who have given any consideration to the form and to the method of growth of military law, what is to be said here upon this subject will be trite and commonplace. To those who are familiar with the form and the method of growth of Roman law it will be necessary only to point out the corresponding characteristics of military law. Those who have never considered the peculiarities of Roman law as to form and method of growth and who have considered military law as merely a special variant of Anglo-American criminal law, may have wondered at the great difference between the two latter systems of law upon these points. It is with the hope of arousing interest and securing coöperation in an investigation of this subject that the following suggestions are offered.

II

Beginning with the reign of Henry II the common law has been what we call with our inaccurate nomenclature, unwritten law. It has been a judicial development of legal custom by technically trained tribunals aided by a technically trained bar. It is possible that popular custom was worked over by the courts from an early date and to a far greater extent than many writers upon Anglo-American law will admit. In any event, whatever the relative proportion of popular custom and judicial custom, it was not based on legislation. The royal constitutions and the statutes of Parliament have modified its development, sometimes aiding it, sometimes hindering it; but at no time did English law take the form of a legislative code as a basis for juristic develop

ment.

Roman law on the other hand, at the earliest known period of its development, took the form of a written code." What other

8 "Common law" is used here as the law of the King's courts. For convenience no account is taken of the relics of the older law that lingered in the local courts; or of the law of the courts which administered the Law Merchant.

• MUIRHEAD, HISTORICAL INTRODUCTION TO THE PRIVATE LAW OF ROME, 2 ed., Pt. II, Chap. II, §§ 21 et seq., p. 94 et seq. MELVILLE, MANUAL OF THE PRINCIPLES OF ROMAN LAW, Pt. I, Chap. I, § 11, pp. 6-9. WALTON, HISTORICAL INTRODUCTION TO ROMAN LAW, 2 ed., Chap. XI. SALKOWSKI, INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW (Whitfield's translation); Introduction, Pt. II, § 7, pp. 27, 28. SOHм,

codes preceded the Twelve Tables, and to what extent the priestly caste regarded their law as legislation rather than as a mass of principles, we have no means of knowing with any certainty. The Twelve Tables themselves were undoubtedly far from a complete statement of Roman law when they were enacted. They rather constituted a great reform statute. Cruel and harsh as many of its provisions seem to us, it undoubtedly was, in its day and generation, legislation intended to protect the weaker classes against the exactions of a military and a priestly aristocracy. At any rate, from an early period, the Roman law showed a strong tendency to reduce its principles to form and order; to embody them in what was practically legislation; and to base its subsequent development in part upon this legislation. Its future juristic growth was in part in the form of commentaries upon this early legislation; commentaries which gradually covered the original foundation with a mass of law under which the Twelve Tables were practically buried; but which nevertheless, in theory at least, rested upon them as their sole foundation. Along with this development was the constant tendency to resort to legislation for the purpose of affording systematic aid to the development of the law and for introducing new principles into the law. The Roman law did not regard a statute as an arbitrary rule made by an external power which had authority to give orders to the court; which the courts must obey as far as the specific order went; but formed no part of the living, growing law. On the contrary at Roman law a statute was a source of law from which new principles could be deduced and from which analogies could be drawn.10 Subsequent legislation, in other words, was treated, like the original Twelve Tables, as a source of law for further comment, interpretation, and juristic growth.

The military law of England existed apparently from the out

INSTITUTES OF ROMAN LAW (Ledlie's translation), 3 ed., Pt. I, Chap. I, § 11, p. 48 et seq. GIRARD, SHORT HISTORY OF ROMAN LAW (translated by Lefroy and Cameron), Chap. II, § 1, 1, p. 47 et seq. 1 CUQ, LES INSTITUTIONS JURIDIQUES DES ROMAINS, § 1, Bk. I, Chap. III (I), § 2, p. 28 et seq. CZYHLARZ, LEHRBUCH DER INSTITUTIONEN DES RÖMISCHEN RECHTES, § 7, p. 12. KUHLENBECK, ENTWICKLUNGSGESCHICHTE DES RÖMISCHEN RECHTS, Bk. II, Chap. 11, § 4, p. 152 et seq. ESMARCH, RÖMISCHE RECHTSGESCHICHTE, 3 ed., Bk. I, Chap. III, §§ 20-25. Voigt, Römische RechtsgeschichTE, § 4.

10 Roscoe Pound, "Common Law and Legislation," 21 HARV. L. REV. 383.