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land, martial law took the place of civil law, both as to civil offenses by soldiers and offenses, especially warlike offenses, by civilians.
The mutiny act of England, annually reenacted, under which the articles of war were made, expressly declared that a soldier should not be exempt from the process of the civil courts. This came to be one of the most cherished principles of the governmental institutions of our British and American ancestors—that the military, unlike the armies of Continental Europe, should not have a separate and equal law, except for mere military discipline, but should remain civilly and criminally subject to the law of the land spoken of in Magna Charta.
An exception to this, other than that of military discipline, arose from a state of affairs which reversed the supremacy of civil over military judicature, and made soldiers and civilians who should commit crimes affecting the public safety, subject to be tried by the military courts.
This state of affairs was that of insurrection and rebellion,
At times when in England the publie safety was endangered from such causes, it was recognized by the common law, or at all events such was the practice acquiesced in, that martial law or the rule of the military was in order.
It seems to me that it is clearly to this ancient and familiar exercise of the military power over those things which naturally belong to the civil that article 58 is to be traced; and I think it is proper to consider when and how martial law was thus applied in seeking the meaning of this article.
In doing so it is not necessary to contend that the power of Congress under the Constitution was limited, in the framing of such an article, to the English practice, and still less to the scope of the article itself, which does not concern civilians.
Congress does, as a matter of fact, confine the article to a "time of war, insurrection, or rebellion." Nor can we forget that the article, although transcribed into the Revised Statutes in 1873, was enacted during and with an especial view to a state of “war, insurrection, or rebellion," during which martial law was in many ways applied.
The concluding lines of the article, as well as the whole scope of the law of which it was a section, warrant us in saying that a "war, insurrection, or rebellion" within the United States, and having some resemblance to the one then in existence, was what Congress had chiefly in mind.
When such a state of affairs should exist, martial law, so far as it dealt with civil offenses committed by soldiers, was to come into play and to withdraw from the courts of civil judicature their superior right to deal with soldiers committing civil offenses.
When the article was adopted in 1863, there were no such places in contemplation as the treaty with Spain has brought under the flag of the United States. When the revision of the statutes took place we had acquired Alaska, but its sparse population and physical character, as then understood, and the manner of treatment by the revisers, lead to the belief that no new intent was imparted to the section at the time of the revision.
Without undertaking to characterize precisely the situation of affairs in the Philippines, thousands of miles across the sea, and containing a large population at the time of
, their cession, it seems to me that if we should concede the existence there of an insurrection or rebellion against the Government, it would be neither within the real intent of Congress in framing article 58 chiefly with a view to the civil war existing in 1863, nor consistent with the practice concerning martial law as understood in England and this country, to say that a civil offense committed by a soldier, part of a body of troops stationed in Maryland or Pennsylvania for service there, in no way connected with what is going on in the Philippines, should be punished as prescribed in this article.
The civil judicature and the laws of the land, with whose relation to martial law so far as it concerns civil crimes articles 58 and 59 deal, were the laws of the realm in England, and the ordinary courts of England. I do not understand that the existence of martial law in England would have been regarded as having anything to do with its existence in all remote parts of the world under British control, or that the existence of martial law or an insurrection or rebellion in some remote part of the world subject to British control would give rise to the existence of martial law in England. This seems to me a reason for supposing that our derivative notions of martial law should be held to exclude the proposition that Congress intended that such a situation as now exists in the Philippines should give rise to the existence of martial law in Maryland or Pennsylvania.
Moreover, we must not forget that martial and military laws are eminently practical; that the former deals with necessities concerning the public safety, and that some attention must be paid, in interpreting any statute to enforce it, to the existence or nonexistence of any such necessity.
It can not be doubted that a civil crime committed by a soldier can be dealt with by the civil courts of Maryland or Pennsylvania; and that those courts are open and neither closed nor in any way affected in their ability to exercise their powers by the situation in the Philippines.
I may add that this view seems to be in accordance with the trend of thought of military men, which should always be respected in dealing with such questions.
But if article 58 does not at present apply in Maryland or Pennsylvania, it seems to me that still less can it apply in Cuba, a foreign country, even more remote than Maryland or Pennsylvania from being affected with regard to martial law by the status of affairs as to the Philippines.
As for article 59, I have already suggested a reason why it does not apply in Cuba, namely, that the laws of the land and the civil judicature, whose supremacy in matters of civil crime it seeks to enforce, are such laws and courts as, since the time of Magna Charta, our ancestors have been taught to venerate, and not the laws of a foreign country.
The question remains, however, whether, leaving articles 58 and 59 wholly out of the question, the act committed by Private York can be inquired into and punished by the courts of Cuba.
As a matter of fact, the President stands in such a relation to the Cuban courts that no punishment can be inflicted in opposition to his will.
Cuba, as I have said, is a foreign country. Its former laws, except as slightly modified, remain in force because they have been sanctioned by the intervening Government. They are applied by the former system of courts and judges, supervised by the President through a governor representing him.
The former inhabitants and the American civilians may be and are tried and condemned by those laws and courts.
Only one reason occurs to me why Private York can not he tried by them, and the soundness of that reason I shall proceed to examine.
That reason is the proposition which has been mentioned argumentatively by our Supreme Court in the case of Coleman v. Tennessee (97 U. S., 509), and the case of Doo v. Johnson (100 U. S., 165), that when the army of one country is passing through or stationed in another country in time of peace it is not subject to the laws of the latter country. The sovereign who permits the passing or presence of the army is, it seems, presumed to consent to exemption from civil and criminal process.
It is decided in the Coleman case referred to that an army in the enemy's country is not subject to the civil courts of that country.
This last proposition seems to me wholly different from the other. It seems contrary to reason to suppose that the tribunals of an enemy would be able to administer anything worthy the name of justice to a member of an invading army; still more, that an invading sovereign, occupying and controlling a district of his enemy's country, should permit one of his soldiers to be dealt with according to the will of a court of his enemy.
But the proposition in question seems to concern nothing more than the interpretation of the special privilege occasionally given by a sovereign having in force a complete system of civil and criminal laws to another sovereign to send an army through or into his dominions. “In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considerd as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.” (The Exchange, 7 Cranch, 138.)
In the aje cited the court say that a presumption of a privilege to introduce an army into a foreign country does not arise from a general license to foreigners to enter the dominions of a friendly power, but that such a presumption does exist with regard to war ships entering the ports of a friendly nation.
In the same case the court say: “The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereignty, and the jurisdiction of a nation within its own territory is necessarily exclusive and absolute; it is susceptible of no limitation not imposed by itself."
And the court proceeds to say that all exceptions must be traced up to the consent of the nation itself, and to discuss three instances of exception, namely: The exemption of the person of a foreign sovereign from arrest, the immunity of foreign ministers, and the case in which a sovereign allors the troops of a foreign prince to pass through his dominions.
It seems to me that the situation with regard to Cuba does not furnish a state of facts to which this mere interpretation given to a special license need be, or can well be, applied.
And it does not seem to constitute in any sense a law of nations, any more than the presumptions of secondary intent which might be supposed to exist in any special waiver of any of a hundred sovereign rights.
We recognized the sovereignty of the people of Cuba at a time when that sovereignty had not yet separated itself from Spain and manifested its will in the shape of civil and criminal laws.
At that time, against the will of Spain, our armies forced themselves into Cuba, and, by reason of the success of our warfare, caused Spain to evacuate, leaving our armies in full possession.
The people of Cuba, as recognized by our Government,