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restrictions to his own authority, and announced the principles and rules of his administration, and that the instructions. for the government of the armies of the United States in the field required that whenever feasible martial law should be carried out in cases of individual offenders by military courts.""

It appears by this statement that the award was based not upon the absence of authority in the commanding general to proclaim martial law, nor upon the fact that his requirements were not reasonable, nor upon the fact that Dubos was not guilty of a violation of the rules so established, but upon the ground that the imposition of the penalty by the act of the commanding general was a violation of his own proclamation, and also of the rules and articles of war.

In the opinion of Mr. Aldis it was stated that General Butler communicated to the Department of State of the United States on September 14, 1862, the fact of the arrest of Dubos and copies of the articles written by him; that on October 10 the French legation made an application in Dubos's behalf; that Mr. Seward replied that "the journal in which Dubos published his articles was devoted in nearly all its columns to the instigation of treason and civil war against the United States, and that the articles therein which are signed by Mr. Dubos, if they were as innocent in purpose as he is now understood to allege, are, from their nature and from the character of the organ which has published them, calculated to add to the civil war already prevailing in New Orleans the aggravation of even a servile war, or war of races;" and that the President referred the matter to General Butler, with the suggestion that he "would be gratified with any solution of it which will be agreeable to Viscount Treilhard and Mr. Fauconnet, and at the same time will not endanger the public peace and safety and that public respect for the authority of the United States which can not be allowed to be impaired." Mr. Aldis in his opinion maintained the Propositions main

tained by Mr. Aldis. following propositions:

"I. Every foreigner owes obedience to the laws of the country in which he resides; and every government has the sovereign right to punish violations of the law on its own soil according to its own laws and the judgment of its own tribunals, and without interference from other nations, so long as the law and the punishment do not conflict with international law. If the law is in conflict with international law, is opposed to the public law of civilized states, then the foreigner who is punished for the violation of such laws may be entitled to redress; otherwise he is not.

"II. Of Martial Law.-The Constitution of the United States, like the supreme law of all other governments, authorizes it to make war and to suppress insurrection. (Art. 1, sec. 8.) It has the right to raise armies, to carry on military operations in the usual mode and according to the laws and usages of war, and to do all that may be necessary to defeat the operations and machinations of the enemy; and when necessary within the theater of military operations and of the occupancy and movements of its armies, to govern by martial law, and within such sphere to supersede by martial law the civil or municipal law. And this martial law exists, not by any authority derived from the Constitution, but by the laws of war as recognized by the laws of nations, and grows out of war and its necessities; and where it lawfully and necessarily exists 'sweeps civil law by the board and takes the place of it.' (See J. Q. Adams's speech in Congress, April 1842.) Where martial law exists searches and seizures may be made without warrant, and persons may be arrested and imprisoned without process.

"Martial law is law. It is the will of the commander of the army. Not an arbitrary and lawless will, but a will governed by the laws and usages of war, and which by necessity becomes the supreme legal authority and for the time takes the place of all other law to a greater or less extent, as necessity may require. It is equally binding as the civil law upon all who are within its jurisdiction.

"The commanding officer must of necessity determine in the first instance as to its necessity, extent, and continuance, but he is subject to the control of the Executive, and must receive the express or implied sanction of Congress afterward.

"III. Martial law as recognized in the United States.-Martial law, arising from necessity and during war, in camps, garrisons, and the vicinity of military occupancy and operations, is and always has been held as valid law, existing by authority in the United States whenever the occasion for it arises.


"General Jackson, commander of the United States forces at New Orleans, on the 15th of December 1814 proclaimed martial law. He deemed it necessary for the defense of the city. On the 8th of January 1815 the battle of New Orleans was fought, and the American victory secured the city. On the 15th of March 1815 Judge Hall granted a writ of habeas corpus for the relief of one Louallier, who had been arrested by the military. General Jackson, under martial law, thereupon arrested Judge Hall. Four or five months after, when peace came and martial law had ceased to exist, Judge Hall arrested General Jackson for contempt of court in disregarding the habeas corpus. General Jackson appeared and sought to justify his act, but Judge Hall would not listen to the defense, and fined General Jackson $1,000, which he paid. In 1842 a bill was introduced to Congress to reimburse General Jackson for the $1,000 so paid, and interest. The title of the bill was 'to indemnify General Jackson for damage sustained in the discharge of his official duty.' It was proposed to change the title of the bill, and call it a bill 'for the relief of General Jackson,' so that, in the language of the committee, 'no inference should be drawn from the passing of it, that a military officer had legal authority to establish martial law.' The minority report opposed the amendment because 'in time of war and imminent public danger it may be the duty of the

military commander to arrest those regarded as traitors, spies, or mutineers within his camp. The act was justifiable, not merely excusable; it was demanded by a great and overruling necessity.' Thus this precise issue came before Congress.

"Mr. Buchanan, then in the Senate, afterward President, sustained the bill as it stood, and upon the ground that martial law was justified by necessity. The Senate rejected the amendment and passed the bill as it stood, Congress thus recognizing that the act of General Jackson was done in the discharge of his official duty.

* *



"Mr. John Quincy Adams, who was President of the United States, and is justly regarded as high authority on all questions of international law, in a speech before Congress in April 1842 said: 'General Jackson was acting under the laws of war. In actual war, whether servile, civil, or foreign, the laws of war take precedence.* * The powers incidental to war are derived not from any internal municipal source, but from the laws and usages of nations. There are, then, two classes of powers, different and often incompatible with each other. The peace power limited by the Constitution. The war power limited only by the laws and usages of nations. The power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, property, and life.'

"President Lincoln recognized the same principle, and acted upon it in numberless cases throughout the war. The first notable act was in the case of Merryman, arrested by General Cadwallader in May 1861, at the very beginning of the war; and in his case the opinion of C. J. Taney was not sustained. It was disregarded by the government, by the courts, and held unsound by the great jurists. President Lincoln's idea of the right to establish martial law is best shown in the Instructions for the Government of Armies of the United States in the Field,' prepared by Dr. Lieber, and approved by the President.

"We quote the first four instructions from General Orders, No. 100: "1. A place, district, or country occupied by an enemy stands in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law.

"2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or, by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same.

"3. Martial law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil laws, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.

"The commander of the forces may proclaim that the administration of all civil and penal law shall continue, either wholly or in part, as in time of peace, unless otherwise ordered by the military authority.

"4. Martial law is simple military authority exercised in accordance with the laws and usages of war. Military oppression is not martial law; it is the abuse of the power which that law confers. As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity— virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.' "So in his proclamation of September 24, 1862, it is ordered"That during the existing insurrection, and as a means for suppressing the same, all rebels and all persons guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law.

"And the writ of habeas corpus is suspended in respect to all persons arrested, or now or hereafter imprisoned in any place of confinement by any military authority.'

"This proclamation applied to Dubos, who was then (September 24, 1862) arrested and about to be sent to Ship Island.

"On the 3d of March 1863 Congress by its act of that day ratified the action of the President.


"In the celebrated case of Luther v. Borden (7 How. 1), where the question arose as to the illegality of martial law, declared by the legislature of the State in the case of threatening insurrection, Chief Justice TANEY says: 'If the government of Rhode Island deemed the armed opposition so formidable and so ramified throughout the State as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war. In that state of things the military officers might lawfully arrest anyone who they had reasonable grounds to believe was engaged in the insurrection.'


"In Milligan's case (4 Wall. 2) the subject of martial law declared in States not in insurrection and where the courts were open was fully considered. The counsel for the government attempted to justify, by the law and usages of war, acts under martial law committed in Indiana, a State never in insurrection and where the courts were open and Milligan might have been tried in the ordinary and peaceful course of law. Judge Davis (p. 121), in delivering the opinion of the court, said: 'It is idle to inquire what the laws and usages of war are. They can never be applied to citizens in States which have upheld the authority of government, and where the courts are open and process unobstructed.' But (on p. 127) he recognizes the very right the government counsel here contends for. He says: 'There are occasions where martial law can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then on the theater of active military operations where war prevails, there is a necessity to furnish a substitute for the civil authority; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their full course. As necessity creates the rule so it limits its duration.'


"This case was decided by five judges to four. And the four (Chief Justice Chase and Justices Wayne, Swayne, and Miller), through Chief

Justice Chase, said: 'We are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government and to augment the public dangers in times of invasion and rebellion.' He therefore expressly stated that military jurisdiction may be exercised, in time of rebellion and civil war, within States or districts occupied by rebels treated as belligerents, by the military commander under the direction of the President, with the express or implied sanction of Congress, and it supersedes the local law.'

"But, if any uncertainty has ever existed upon the question, the recent decision of the United States Supreme Court in the case of The United States v. Diekelman (92 U. S. S. C. Rep. 520; 2 Otto, 520) completely settles the right of the United States to establish martial law, and settles it as to New Orleans under General Butler in 1862 and as to foreigners in New Orleans as well as to American citizens. Chief Justice Waite, in delivering the opinion, says:

"I. As to the general law of nations.

"The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit so long as they remain, and this as well in war as in peace, unless it is otherwise provided by treaty.

"The law by which the city (New Orleans) and port were governed was martial law. This ought to have been expected by Diekelman when he dispatched his vessel from Liverpool. The place had been wrested from the possession of the enemy only a few days before the issue of the proclamation, after a long and desperate struggle. It was, in fact, a garrisoned city, held as an outpost of the Union army, and closely besieged by land. When he entered the port, therefore, with his vessel under the special license of the proclamation, he became entitled to all the rights and privileges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. Such restrictions as were placed upon citizens operated equally upon him. Citizens were governed by martial law. It was his duty to submit to the same authority.

"Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is, in fact, his will. Of necessity it is arbitrary, but it must be obeyed.

"To this law and this government the Essex subjected herself when she came into port.

"General Butler found on board this vessel articles which he had reasonable cause to believe, and did believe, were contraband, because intended to promote the rebellion. It was his duty, therefore, under his express instructions, to see that the vessel was not cleared with these articles on board, and he gave orders accordingly. It matters not now whether the property suspected was in fact contraband or not. It is sufficient for us that he had reason to believe, and in fact did believe, it to be contraband. No attempt has been made to show that he was not acting in good faith.'

"A recent work on military law by Lieut. Ives, assistant professor of law at West Point, 1879, contains a very satisfactory summary of the laws of the United States as to martial law.

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