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Martial Law and Its Effect upon the Soldier's Liability to the Civilian

01 May 1925-University of Pennsylvania Law Review (JSTOR)-Vol. 73, Iss: 4, pp 380

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III.

  • During the time when martial law exists, the military commander is, according to the majority view, in absolute control.
  • According to the evidence the defendant thereafter kicked the plaintiff and struck him with his sword, causing blood to flow, and caused one hundred and fifty lashes to be inflicted upon the plaintiff's back.
  • In no other case where martial law admittedly existed has the court ventured to criticize or review the action of the military commander.
  • Certain of their constitutional guarantees are suspended because either the necessities of wail demand it, or because the constitutionally appointed authorities are paralyzed and cannot enforce those guarantees.
  • And it is not easy to imagine that any court would adhere to the rule if, in a time when a band of turbulent strikers had gained control of the community,an overzealous military commander should turn his soldiers loose to overathe authors the strikers and the community generally by rapine and pillage.

IV..

  • One of the most curious phenomena in their law is the status of the soldier who, in .obeying an order of his superior, threatens or inflicts death or serious injury upon a civilian, or deprives him of his liberty, only to find himself arrested and brought to trial because the orders under which he acted were not authorized.
  • Some courts have announced exceptions to this strict rule.
  • There are dicta in cases involving crimes to the effect that the soldier is excused for his otherwise criminal act unless his orders were illegal on their face, 5 8 or "palpably illegal" on their face.
  • Indemnity Act of Congress, 4 which ratified all acts done by soldiers, until orders, whether legal or illegal when given, during the Civil War period.
  • The Court enunciated it in holding the lower courit in error in sustaining a demurrer to a plea that the trespass alleged was committed by the defendants, under orders of their superior officer, in commandeering the plaintiff's property for the use of the army in the field.

AT.

  • The decisions since r9o2 must considerably modify the view generally held up to that time as to the possibility, extent and effect of martial law, as distinguished from military law, in the English-speaking countries.
  • This waq considered and held constitutional -by the Circuit Court in M'Call v. M'Dowell.
  • A motion for a new trial was iefuse~d by the Circuit Court of Appeals on which Field, I., of the Siipreme Court, was sitting.

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MARTIAL
LAW
AND
ITS
EFFECT
UPON
THE
SOL-
DIER'S
LIABILITY
TO
THE
CIVILIAN.
The
numerous
occasions
in
recent
years
on
which
the
civil
laws
have
been
superseded
by
military
rule
in
time
of
grave
public
disorder
and
calamity
have
given
rise
to
considerable
dis-
cussion
of
martial
law
under
the constitutional
governnients
of
the
United
States
and'England.
1
From
the
middle
of
the
seven-
teenth
century
until
the
beginning
of
the
twentieth,
.martial
law
had
very
rarely
been.
put
in
force
in
England
or
in
the
United
States,
except
in
time
of
public
war.
As
a
result,
there
was
little
precedent
to
guide
the
courts
in
attempting
to
adjust
disputes
Martial
law
is
here
used in
the
restricted
sense
in
which
it
is
generally
used
in
the
opinions.
It
does
not
include
the
law
which
governs,
the
conduct
of
opposing
armies
towards
each
other,
which
forms, really,
a
part
of
inter-
national
law.
Nor
does
it
include
military
law.
which
is
the
disciplinary
and
governmental
code
of
the
army
itself,
with
jurisdiction
only
over
soldiers,
and
spies
who
directly
interfere
with
the
working
of
the
army.
Nor
does
martial
law include
what
is
usually
called
military
government-the
authority
exercised
by
military
commanders
over
occupied
territory
of
an
enemy
coun-
try.
It
includes
merely
the
exercise
of
authority
by
military
forces
over
civilians
in
domestic
territory
outside
the
zone
of
actual
conflict,
or
when
there
is
no
conflict
of
such
character
as
to
constitute
a
civil
or
foreign
war,
at
times
when
the
civil
authorities
have proved too weak t6
maintain
their
control
in
the
district.
This
is
the
sense
in
which
it
is
used
by
Chief
Justice
Chase
in
referring
to
the
powers
of
the
National
Government
in
his
famous
exposition
in
the
dissenting
opinion
in
the
case
of
Ex
parte
Milligan,
(U.
S.,
x866)
4
Wall.
2,
141:
"There
are
under
the
Constitution
three
kinds
of
military
juns-
dict:on:
one
to
he
exercised
both
in
peace
and
war;
another
to
be
exercised
in
time
of
foreign
war
outside
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
United
States.
or
during
rebellion
within
the
limits
of
the
states
maintaining
adhesion
to
the
National
Government.
when
the
public
danger
re-
quires
its
exercise.
The
first
of
these
may
be
called
jurisdiction under
Mili-
tary
Law
and
is
found
in
the Acts
of
Congress
prescribing
rules
and
articles
of
war.
or
otherwise
providing
for
the
government
of
the
national
forces;
the
second
may
be
called
MIilitary
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,
in
districts
or
localities
where
ordinary
law
no
longer
adequately
secures
public
safety
and
private
rights."
Martial law
in
this
sense
does
not
exist
when
the
soldiers act
in
subordi-
nation
to
the
civil
authorities, doing
nothing
which
the
civil
authorities
them-
selves
could not
do
under
the
police
power.
It
exists
only when
the
military
supplants
the
civil
power
and
transcends
the
constitutional
limitations,
with
respect
to
the
invasion
of
life, liberty
and
property,
placed upon
the
civil
power.
(380)

MARTIAL LAW
AND
ITS
EFFECT
UPON
THE
CIVILIAN
381
arising
out
of
the
ever-increasing
suspensions
of
civil
authority.
Whether martial
law
could
exist
at
all
in
the
United
States
was
a
debatable
question
at
the
beginning
of
the
present century.
And
if
it
be
admitted
to
exist
the
courts
are
still
in
a
quandry
as
to
what
effect
its
existence
has
upon
the
rights
and
privileges
of
citizens.
Pressed
upon one
side
by
the
constitutional
guar-
antees
and
upon
the
other
by
the
overwhelming
necessities
of
the
moment,
the courts
have generally
decided
as
expediency
dictated. Sometimes
they have
fratikly
avowed
that
the
deci-
sion rested upon
expediency.
2
More
often
they
have
attempted
to
justify
their
decision
upon
logical
grounds.
It
is
but
natural
to
expect
that
the
principles
evolved
in
such cases,
under
such
circumstances, would
not
form
a
very logical
system.
In
a
re-
cent
lecture
on
the
subject
Lord Sumner,
who
sat
as
Lord
of
Appeal
in
Ordinary during
the
period
of
the
war
and
thereafter,
said
that
there
were
three
difficulties
id
dealing with
this
subject:
it
was
lacking
in
precision,
it
abounded
in
paradoxes
and
it ran
very
close
to
politics.
3
This
substantially amounts
to
a
state-
ment
that
there is no
systematic
body
of
law
on
this
subject
at
all.
And
this
is
the
learned
Lord's
conclusion.
It
is
something
the
common
law
courts
simply
do
not
know.
4
But the
fact
remains
that
instances
of
martial
law
have
be-
come
of
frequent
recurrence in
the
United
States.
Within
little
over
a
year,
martial
law
has
been
in
force,
for
widely
varying
reasons, in Oklahoma
City,
in
Herrin,
in
Lorain,
and in
the
tornado-stricken
cities
of
southern
Illinois.
-It
was mentioned
as
a
possibility
in Weehawken,
N.
J.,
a
few
months
ago during
the
disorders
attending
liquor smuggling.
As
a
result,
it
has
become
a
matter
of
importance
to
determine
the
legal
basis
for
the
existence
of
martial
law
and
its
legal effect
upon
the
rights
of
private
citizens,
and
upon the
relationship
between
the
soldier
and
the
civilian.
It
is
the
purpose
of
this article
to
discover
how
far
these
things
may
be
ascertained
from
the
decisions.
'See
cases
discussed
p.
infra.
'Martial
Law,
i54
Law
Times
38i
(Igzz).
6Id.,
38Z

382
UNIVERSITY
OF
PENNSYLVANIA
LAW
REVIEW
At
the
beginning
of
the
present
century,
it
was,
as
has
been
said,
a
debatable
question
whether
martial
law
could
rightfully
exist
in
English-speaking
countries
other
than
in
the
actual
zone
of
conflict
in
war
time.
5
Inv6lving
as
it
does
a
dictatorship,
carrying
with
it
the
strength
of
the army
together
with
an
immunity
for
the
dictator
and
his
agents
from
responsibility
for
extraordinary
invasions
of
citizens'
rights,
martial
law
is
ap-.
parently
discordant
with
the
theory
of
democracy.
In
its
present
form
it
first
appeared
in
England
in
the
days
of
Tudor
absolutism.
It
is
descended
from the
ancient
jurisdiction
of
the
Court
of
the
Constable
and
Marshall,
which
is
defined
by
the
statute
of
14
Richard
116
as
extending
in
wartime
over
all
mat-
ters
touching
war
within
the
realm.
This
statute
gave
that
iourt
jurisdiction
only
over
soldiers
and
those
liable
to
be
called
as
soldiers
in
time
of
war.
By
reason
of
the
attainder
of
the
holder
of
the
office
of
constable
in
the
reign
of Henry
VIII
the
office
was
forfeited
to
the
Crown.
7 "
The
Crown
never
again
appointed
anyone
to
this
office
but
reserved
its
functions
for
itself.
Characteristically,
the
Tudors
did
not
feel
themselves
bound
by the
limitations
of
the
jurisdiction,
either
that
re-
specting
the
time
of
war
or
that
restricting
it
to
soldiers.
The
use
of this martial
law power
increased
through
the
six-
teenth
century
with
the
increase
of
absolutism
in
the
sovereigns.
Under
Elizabeth
on
more
than
one
occasion
a
subject
guilty
of
a
single
infraction
of
the
law
was
declared
to
be
in
rebellion
against
the
Crown
and was
subsequently
arrested and
tried
by
the
rules
of
martial
law.
These
abuses
became
more
and
more
pronounced
under
the
first
Stuarts
until
the
people's
patience
was
exhausted.
In
1629
Parliament
forced
the
King to
sign
'Roberts.
Some
Observations
upon
the
Case
of
Private
Wadsworth,
St
Am.
L,
Reg.
63.
y6s
(i9o3)
;
Dicey,
Law
of
the Constitution.
(8th
ed.,
'915)
23.
and
note.
p.
538
at
p.
544.
And
see
Holdsworth.
Martial
Law
Historically
Considered.
18
LAW
QUARTERLY
REviEw
117
(1902):
Ballentine.
Martial
Law.
12
COL.
L.
REV.
529
(i=iz);
Ballentine.
Unconstitutional
Claims
of
Military
Authority.
5
Journal
of
Criminal
Law
and
Criminology,
718
(1914).
1
13
Rich.
II.
St.
T.
c.
2
(1389).
'
See
as
to
this.
and
as
to
the
history
of
martial
law
in
England.
generally,
Holdsworth.
Martial
Law
Historically
Considered,
18
LAw
QUARTERLY
RE-
VIEW
117
(1902).

MARTIAL
LAW
AND
ITS
EFFECT
UPON
THE
CIVILIAN
383
the
Petition
of
Right,
8
which
practically
prohibits
martial
law
jurisdiction
over
civilians
at
any time,
or
even
over
soldiers
except
in
time
of
war.
From
that
time
until
very
recent
years
there
were
practically
no
cases
involving
an attempt
to
impose
martial
law upon
the
people
of
England
itself,
and
apparently
the
legal
commentators
considered
martial
law
as
applied to
civilians
impossible
in England.
This
has
not
been
true,
however,
with
regard
to the
Eng-
lish
colonies.
In
America
the
,institution of martial
law
in
Massachusetts
was
one
of
the
sparks
which
fired
the
Revolu-
tion.
9
This
abuse, coming
as
it
did
just
prior
to
the
Revolution,
caused
each
of
the
states
to
make
part of
its
fundamental
law
'3
Car.
1.
(1627).
The
pertinent portions
of
the
petition
are:
"And
whereas
also
by
the
authority of
Parliament
in
the
twenty-fifth
year
of
the
reign
of
King
Edward
the
Third,
it
is
declared
and
enacted,
that
no
man
shall be
forejudged
of
life
and
limb against the
form
of
the
great
charter,
and
the
law
of
the
land;
and
by
the
said
great
charter
and
other
laws
and
statutes
of
this
your
realm,
no
man
ought
to
be
adjudged
to
death.
but
by
the
laws
established
in
this
your
realm,
either
by
the
customs
of
the
same
realm
or
by
acts
of
Parliament:
and
whereas
no
offender
of
what
kind
soever
is
exempted
from
the
proceedings
to
be
used
and
the
punishments
to
be
in-
flicted by
the
laws
and
statutes
of
your
realm;
nevertheless,
of
late
divers
commissions
under
your
majesty's
great
seal
have
issued
forth,
by
which
certain
high
persons
have
been
assigned
and
appointed
commissioners
with
power
and
authority
to
proceed
within
the
land,
according
to
the justice
of
martial
law
against
such
soldiers
and mariners,
or
other
dissolute
persons
joining
with
them
as
should
commit
any
murder,
robbery,
felony,
mutiny,
or
other outrage
or
misdemeanor
whatsoever,
and
by
such
summary
course
or
order,
as
is
agreeable
to martial law.
and is
used in armies
in
time
of
war,
to
proceed
to
the
trial
and
condemnation
of
such
offenders,
and them
to-cause
to
be
executed
and
put
to
death,
according
to
the law
martial.
"By
pretext
whereof,
some
of
your
majesty's
subjects
have
been
by
some
of
the said
commissioners
put
to
death,'
when
and
where,
if
by
the
laws
and
statutes
of
the
realm
they
had
deserved
death,
by
the
same laws
and
statutes
also
they
might,
and
by
none
other
ought to
have
been,
adjudged
and
executed.
"And
also
sundry
grievous
offenders
by
color
thereof,
have
escaped
pun-
ishments
due
to
them
by
the
laws
and statutes
of
this
your
realm
. . .
upon
pretense
that
the
said offenders
were punishable
only
by martial
law. and
by
authority
of
such
commissions
as
aforesaid,
which
commissions,
and
all
others
of
like
nature,
are
wholly
and
directly
contrary
to'the
said
laws
and
statutes
of
this
your
realm.
"They
therefore
do
humbly
pray
your
most
excellent
majesty,
. . .
that
the aforesaid
commissions
for
proceeding
by
martial
law may
be
revoked
and
annulled; and
that hereafter
no
commissions
of
like
nature
may
issue
forth
to any
person
or
persons
whatsoever,
to
be
executed
as aforesaid,
lest
by
color
of
them
any
of
your
majesty's
subjects
be
destroyed
or
put
to
death,
con-
trary
to
the
laws
and
franchise
of
the
land."
-
'Bancroft,
Ifistory of
the
United
States,
Vol.
VII,
S6
et
seq.

384
UNIVERSITY
OF
PENNSYLVANIA
LAW
REVIEW
the
provision
that
in
all
cases
the
military
power
should
be
subordinate
to
the
civil.1
0
In
the
early
years
of
our
history
as
a
nation,
martial
law
was
never resorted
to.
Washington,
in
send-
ing troops
to
put
down
the
Whiskey
Rebellion
in
Pennsylvania,
gave
very
explicit
orders
that
the
soldiers
should
hold
themselves
subordinate
to
the
civil
authoritiei,
and
the
soldiers
in
no
in-
stance
went
beyond
what
would
be
justified
under
the
ordinary
police
power."
Jefferson's
attempt
to
make use
of
it
by
pro-
curing
the
suspension
of
the
writ
of
habeas
corpus
during
the
trouble
with
Burr
met
with
a
prompt
and
decisive
rebuff
from
Congress,
which-
-refused
to
suspend
the
writ
at
his
request.'
2
General
Jackson,
it
is
true,
put
the
city
of
New
Orleans
under
martial
law
and
suspended
the
writ
temporarily.
But
in
charac-
teristic
fashion,
after
the
necessity
had
passed,
he
admitted
that
he
had
been
in
error
and
submitted
to
the
fine
which
the court
imposed
upon him.'
3
Martial
law
was
used
for
the
first
time
in
our
history
with
the
subsequent
acquiescence
of
the
courts
in
Dorr's
Rebellion
in
Rhode
Island
in
184o.
In
order
to
put
down
a
formidable
rebellion
the
government
of
the
state
called
out
its
militia
which,
without
any
gross
invasion
of
ordinary
private
rights,
quelled
the
riots
occuring
throughout
Rhode
Island.
Civil
government
was
restored
immediately
upon
their
suppression.
4
In
the
Civil
War
an
attempt
to
establish
martial
law
outside
the
zone
of
actual
conflict
was
condemned
by
the
majority
of
the
Supreme
Court
in
Er
parte Milligan.
"
The
exigencies
of
our
changing
civilization
in
the
period
following
the
Civil
War
have,
however,
settled
the
question.
It
"This
provision
in
so
many
words
is
found
in
the
constitutions
of
all
the
states
except
New
York.
For
a
complete
digest
of
the
constitutional
provi-
sions
upon
this
subject,
see
Stimson,
Federal
and
State
Constitutions,
82,
245-
248.
The
Constitutions
of
Rhode
Island,
Massachusetts,
New
Hampshire
and
South
Carolina.
give
express
sanction
to
martial
law
in
case
of
necessity,
although
in
three
of
these
states
it
is
to
be
declared
by
authority
of
the
Legislature.
Id.,
246.
See
dissenting
opinion
of
Robinson.
J.,
in
State
v.
Brown,
71
W.
Va.
519,
544. 77
S.
1.
243
(912).
See
dissenting
opinion
of
Steele,
I,
in
In
re
Moyer,
35
Colo.
i59,
iSo,
8r
Pam
19o
(i9oS).
2Birkhimer,
Military
Government
and
Martial
Law
(2d
ed.)
426,
note.
"Luther
v. Borden,
7
How.
I
(U. S.
1849).
a
"4
Wall.
2
(U.
S.
i867).

Citations
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DissertationDOI
01 Jan 2010
Abstract: THE LAWS WILL FALL SILENT: EX PARTE QUIRIN, A TROUBLING PRECEDENT FOR MILITARY COMMISSIONS" BRAD P. LUEBBERT APRIL 13 2010 For over two hundred years a major issue in the history of the United States is the contentious issue of military commissions. Military commissions are not new or specific to the United States, but the United States traces its first military commission to the trial of a British officer, Major John Andre in September 1780. This thesis is about the trial of Nazi saboteurs before a military commission and their battle before the United States Supreme Court. A fight pitting civil liberties and due process versus national security during the time of war and crisis in the United States during World War II that resulted in the Supreme Court's Ex Parte Quirin decision in 1942 which established a dangerous and troubling precedence. The Nazi saboteur case of July 1942 was not a snapshot in time but a precedent that the United States is dealing with at the present time. This thesis demonstrates that a pattern exists concerning civil liberties and national security in the United States. The federal government in times of war and crisis, restrict civil liberties in the name of national security, and only after the crisis passed, do policy makers acknowledge error. Ex parte Quirin is a reminder about the need for balance between rights and liberties in the context of war-time.

11 citations


Book ChapterDOI
01 Jan 2020
Abstract: This chapter is a comprehensive treatment of the subject. The most important comparative finding of this chapter is the total lack of any comparable legal concept in India and the consequent inevitable conceptual confusion surrounding this phrase. Again, the chapter places the concept in a comparative perspective by surveying the legal position in the three studied jurisdictions and attempts to draw important comparative lessons. These are also likely to impact constitutional decision-making in India and some of its neighboring jurisdictions.

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Nor does martial law include what is usually called military government-the authority exercised by military commanders over occupied territory of an enemy country. It includes merely the exercise of authority by military forces over civilians in domestic territory outside the zone of actual conflict, or when there is no conflict of such character as to constitute a civil or foreign war, at times when the civil authorities have proved too weak t6 maintain their control in the district. The first of these may be called jurisdiction under Military Law and is found in the Acts of Congress prescribing rules and articles of war. `` Martial law in this sense does not exist when the soldiers act in subordination to the civil authorities, doing nothing which the civil authorities themselves could not do under the police power.