206 Pa. 165 | Pa. | 1903
Opinion by
A somewhat full statement of the facts will be conducive to the proper understanding of the case.
During the summer of 1902 a strike, beginning with a labor union known as the United Mine Workers of America, spread through nearly the whole of the anthracite coal region in Pennsylvania. As time progressed it was accompanied with increasing disorder and violence on the part of the strikers and their sympathizers, so that threats and intimidation not only of men but of their women and children, rioting, bridge burning, stoning and interference with railroad trains, destruction of property and killing of non-union workmen became of frequent occurrence. The communities affected were either in secret sympathy with these acts or lacked the courage to put an end to them.
Among the places where the disorder was greatest was Shenandoah in Schuylkill county. There the police and the sheriff in attempting to preserve the peace were overpowered and beaten by mobs of strikers, and several citizens killed. The sheriff having called upon the governor, the latter first ordered out a portion of the militia and subsequently on further call, the entire division of the National Guard, on October 6, 1902, by General Order No. 89.
The text of this order which is important is as follows: “In certain portions of the counties of Luzerne, Schuylkill, Carbon, Lackawanna, Susquehanna, Northumberland and Columbia, tumult and riot frequently occur and mob law reigns. Men who desire to work have been beaten and driven away and their families threatened. Railroad trains have been delayed and stoned, and tracks torn up. The civil authorities are unable to maintain order and have called upon the Governor and Commander-in-Chief of the National Guard for troops. The situation grows more serious each day. The territory involved is so extensive that the troops now on duty are insufficient to prevent all disorder. The presence of the entire Division, National Guard of Pennsylvania, is necessary in these counties to maintain the public peace. The Major General
Under this order the 18th Regiment, being part of the troops under command of Brigadier General Gobin, was stationed in and near Shenandoah. Several houses occupied by non-union men had been dynamited and attempts made upon others. On October 8, therefore, General Gobin issued the following order: “ At 5 : 30 P. M. a detail of one corporal and six men should be put at the house of Barney Bucklavage, No. 1118 West Coal street; this house was dynamited on the night of October 6th and is occupied by a woman and four small children, and for the present I deem it best to guard it; my instructions to the guard have been that they shall keep a sentry at the front door sitting inside the house with the door ajar, and one sentry sitting just outside the rear door under the porch, and if any attempt is made to dynamite them, or they are shot at, or stoned, or any suspicious characters prowl around, particularly in the rear of the house, who fail to halt when directed by the guard, the guard shall shoot, and shoot to kill.”
The relator, Arthur Wadsworth, was a private in Company A of the 18th Regiment, in service there, and in the evening of October 8 was posted as sentry in the front yard of the Buck-lavage house, just outside the door, with orders to halt all persons prowling around or approaching the house, and if the persons so challenged failed to respond to the challenge after due
A coroner’s inquest was held and the jury found that “ the shooting was hasty and unjustifiable ” and recommended that the matter be placed in the hands of the district attorney for investigation. In the meantime on complaint before a justice of the peace, a warrant had been issued for the arrest of Wads-worth, and after the return of the regiment from service he was arrested at his home in Pittsburg by the respondent, a constable of the borough of Shenandoah. A writ of habeas corpus was allowed by the presiding justice of this court, and the commonwealth not making any charge higher than manslaughter, the relator was admitted to bail, pending the argument of the case.
These are all the material facts and they are undisputed. The only appearance of question is in the testimony of some of the witnesses at the inquest that the deceased was outside the gate when they saw him after he had fallen. The relator and some others of the guard testified that the deceased had opened the gate and entered but staggered back several steps after the shot was fired.
The issue of General Order No. 39 by the governor was a declaration of qualified martial law, in the affected districts. In so characterizing it we are not unmindful of the eminent authorities who have declared that martial law cannot exist in England or the United States at all, or at least, according to the more moderate advocates of that view, not in time of peace. Thus in Ex parte Milligan, 71 U. S. 2, 127, it is said in the opinion of the majority of the court, “ martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.” But in the dissenting opinion in the same case, Chief Justice Chase convincingly
Many other authorities of equal rank hold that martial law exists wherever the military arm of the government is called into service to suppress disorder and restore the public peace. So far as any of the questions in the present case are concerned the difference is one of terms rather than of substance and is material chiefly in regard first to the jurisdiction of courts martial or military commissions over citizens not in the military or naval service, nor engaged in recognized war, or secondly, to the responsibility of officers or soldiers giving or acting under military orders, when not in actual war, to be called to account in the civil or criminal courts. With the first of these matters we are not now concerned, and the second will be discussed in its due order.
Order No. 39 was as said a declaration of qualified martial law. Qualified in that it was put in force only as to the pres-, ervation of thé public peace and order, not for the ascertainment or vindication of private rights, or the other ordinary functions of government. For these the courts and other agencies of the law were still open and no exigency required interference with their functions. But within its necessary field, and for the accomplishment of its intended purpose it
It is not unfrequently said that the community must be either in a state of peace or of war, as there is no intermediate state. But from the point of view now under consideration this is an error. There may be peace for all the ordinary purposes of life and yet a state of disorder, violence and danger in special directions, which though not technically war, has in its limited field the same effect, and if important enough to call for martial law for suppression, is not distinguishable, so far as the powers of the commanding officer are concerned, from actual war. The condition in fact exists, and the law must recognize it, no matter how opinions may differ as to what it should be most correctly called. When the civil authority, though in existence and operation for some purposes, is yet unable to preserve the public order and resorts to military aid, this necessarily means the supremacy of actual force, the demonstration of the strong hand usually held in reserve and operating only by its moral influence, but now brought into active exercise, just as the ordinary criminal tendency in the community is held in check by the knowledge and fear of the law, but the overt law breaker must be taken into actual custody.
When the mayor or burgess of a municipality finds himself unable to preserve the public order and security and calls upon the sheriff with the posse comitatus, the latter becomes the responsible officer and therefore the higher authority. So if in turn the sheriff finds his power inadequate, he calls upon the larger power of the state to aid with the military. The sheriff may retain the command, for he is the highest executive officer of the county, and if he does so, ordinarily the military must act in subordination to him. But if the situation goes beyond county control, and requires the full power of the state, the governor intervenes as the supreme executive and he or his military representative becomes the superior and commanding officer. So too if the sheriff relinquishes the command to the military, the latter has all the sheriff’s authority added to his own powers as to military methods.
The effect of martial law, therefore, is to put into operation the powers and methods vested in the commanding officer by military law. So far as his powers-for the preservation of order and security of life and property are concerned, there is no limit but the necessities and exigency of the situation. And in this respect there is no difference between a public war and domestic insurrection. What has been called the paramount law of self-defense, common to all countries, has established the rule that whatever force is necessary is also lawful.
“ Whatever force is necessary for self-defense is also lawful. This law, applied nationally, is the martial law, which is an offshoot of the common law, and although ordinarily dormant in peace, may be called forth by insurrection or invasion. War has exigencies, that cannot readily be enumerated or described, which may render it necessary for a commanding officer to subject loyal citizens, or persons who though believed to be disloyal have not acted overtly against the government, to deprivations that would under ordinary circumstances be illegal; and he must then depend for his justification, not on the laws of war, but on the necessity which, as has been here seen, may warrant the taking of life, and will therefore excuse any minor deprivation : ” Hare, Am. Constitutional Law, lect. xlii, p. 924.
“ When a riot assumes such proportions that it cannot be quelled by ordinary means, and theatens irreparable injury to life or property, the sheriff may call forth the posse comitatus and exercise an authority as their chief which can hardly be distinguished from that of a general engaged in repelling a foreign enemy or subduing a revolt. Arms may be used as in battle to bear down resistance; and if loss of life ensues, the circumstances will be a justification. The measure does not, however, cease to be civil, or fall beyond the rules which apply
This last quotation illustrates and explains the difference in the application of the term martial law which has given so much apparent trouble to some of the text writers. There is no real difference in the commander’s powers in a public war and in domestic insurrection. In both he has whatever powers may be needed for the accomplishment of the end but his use of them is followed by different consequences. In war he is answerable only to his military superiors, but for acts done in domestic territory, even in the suppression of public disorder, he is accountable, after the exigency has passed, to the laws of the land, both by prosecution in the criminal courts, and by civil action at the instance of parties aggrieved. On this all the authorities agree, and the result flows from the view that martial law in this sense is merely an extension of the police power of the state, and therefore, as expressed, by Judge IIabe in the quotation supra, an “ offshoot of the common law which though ordinarily dormant in peace, may be called forth by insurrection or invasion.” See Respublica v. Sparhawk, 1 Dallas, 357, Mitchell v. Harmony, 13 How. (U. S.) 115, Ford v. Surget, 97 U. S. 594, and English cases cited in 2 Hare on Const. Law, ch. xli.
In determining the responsibility for such acts, the courts pro
“ It is the emergency that gives the right, and the emergency must be shown before the talcing can be justified. In deciding upon this necessity, the state of the facts as they appear to the officer at the time he acted will govern the decision, for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had aright to rely'upon, there is reasonable ground for believing that the peril is immediate and menacing or the necessity urgent, he is justified in acting upon it, and the discovery afterwards that it was false or erroneous will not make him a trespasser:” Taney, C. J., Mitchell v. Harmony, 13 How. 115.
And while the military are in active service for the suppression of disorder and violence, their rights and obligations as soldiers must be judged by the standard of actual war. No other standard is possible, for the first and overruling duty is to repress disorder, whatever the cost, and all means which are necessary to that end are lawful. The situation of troops in a riotous and insurrectionary district approximates that of troops in an enemy’s country, and in proportion to the extent and violence of the overt acts of hostility shown is the degree of severity justified in the means of repression. The requirements of the Situation in either case, therefore, shift with the circumstances, and the same standard of justification must apply to both. The only difference is the one already adverted to, the liability to subsequent investigation in the courts of the land after the restoration of order.
Coming now to the position of the relator, in regard to re
The cases in this country have usually arisen in the army and been determined in the United States courts. But by the Articles of War (art. 59) under the acts of congress, officers or soldiers charged with offenses punishable by the laws of the land, are required (except in time of war) to be delivered over to the civil (i. e. in distinction from military) authorities; and the courts proceed upon the principles of the common (and statute) law: 31 Fed. Repr. 711. The decisions therefore are precedents applicable here.
A leading case is U. S. v. Clark, 31 Fed. Repr. 710. A soldier on the military reservation at Fort Wayne had been convicted by court martial and when brought out of the guardhouse with other prisoners at “retreat,” broke from the ranks and was in the act of escaping when Clark, who was the sergeant of the guard, fired and killed him. Clark was charged with homicide and brought before the United States district judge, sitting as a committing magistrate. Judge Brown, now of the Supremo Court of the United States, delivered an elaborate and well considered opinion, which has ever since been quoted as authoritative. In it he said, “ The case reduces itself to the naked legal proposition whether the prisoner is excused in law in killing the deceased.” Then after referring to the common-law principle that an officer having custody of
In McCall v. McDowell, 1 Abb. (U. S.)212, where an action was brought by plaintiff against Gen. McDowell and Capt. Douglas for false imprisonment under a general order of the former for the arrest of persons publicly exulting over the assassination of President Lincoln, the court said, “ Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law will excuse a military subordinate, when acting in obedience to the order of his commander, otherwise he is placed in a dangerous dilemma of being liable to damages to third persons, for obedience to the order, or for the loss of his commission and disgrace for disobedience thereto. .... Between an order plainly legal and one palpably otherwise there is a wide middle ground where the ultimate legality and propriety of orders depends or may depend upon circumstances and conditions, of which it cannot be expected that the inferior is informed or advised. In such cases justice to the subordinate demands, and the necessities and efficiency of the public service require that the order of the superior should protect the inferior, leaving the responsibility to rest where it properly belongs, upon the officer who gave the command.” The court sitting without a jury accordingly gave judgment for Capt. Douglas, though finding damages against Gen. McDowell.
In U. S. v. Carr, 1 Woods, 480, which was a case of the shooting of a soldier in Fort Pulaski by the prisoner who was sergeant of the guard, Woods, J., afterwards of the Supreme Court of the United States, charged the jury: “ Place yourselves in the position of the prisoner at the time of the homicide. In
In Riggs v. State, 4 Cold. 85, the Supreme Court of Tennessee held to be correct an instruction to the jury that “ any order given by an officer to his private which does not expressly and clearly show on its face, or in the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him.”
These are the principal American cases and they are in entire accord with the long line of established authorities in England.
Applying these principles to the act of the relator, it is clear that he was not guilty of any crime. The situation as already shown was one of martial law, in which the commanding general was authorized to use as forcible military means for the repression of violence as his judgment dictated to be necessary. The house had been dynamited at night and threatened again. With an agent so destructive, in hands so lawless, the duty of precaution was correspondingly great. There was no ground therefore for doubt as to the legality of the order to shoot. The relator was a private soldier and his first duty was obedience. His orders were clear and specific, and the evidence does not show that he went beyond them in his action. There was no malice for it appears affirmatively that he did not
Whenever a homicide occurs it is not only proper but obligatory that an official inquiry should be made by the legal authorities. Such an inquiry was had here .at the coroner’s inquest, and if there were any doubt about the facts we should remand the relator to the custody of the constable under his warrant, for a, further hearing before the justice of the peace. But there was no conflict in the evidence before the coroner, and the commonwealth’s officer makes no claim here that anything further can be shown. The facts therefore are not in dispute, and the question of relator’s liability depends on whether he had reasonable cause to believe in the necessity of action under his orders. As said by Judge Hare, citing Lord Mansfield in Mostyn v. Fabrigas, 1 Cowper, 161, “ The question of probable cause in this as in most other instances, is one of law for the court. The facts are for the jury; but it is for the judges to say whether, if found, they amount to probable cause : ” Hare’s Const. Law, 919.
In U. S. v. Clark, 31 Fed. Repr. 710, already cited, Mr. Justice Brown said “ it may be said that it is a question for the jury in each case whether the prisoner was justified by the circumstances in making use of his musket, and if this were a jury trial I should submit that question to them .... but as I would, acting in (that) capacity, set aside a conviction if. a verdict of guilty were rendered, I shall assume the responsibility of directing his discharge.”
This court, either sitting as a committing magistrate or by virtue of its supervisory jurisdiction over the proceedings of all subordinate tribunals (Gosline v. Place, 32 Pa. 520) has the authority and the- duty on habeas corpus in favor of a pris
The relator, Arthur Wadsworth, is discharged from further custody under the warrant held by respondent.