71 W. Va. 519 | W. Va. | 1912
Lead Opinion
L. A. Mays and S. F. Nance, in the custody of M. L. Brown, warden of the Penitentiary of this State, under sentences of a Military Commission, appointed by the Governor, to sit in a territory corresponding in area and boundaries with the magisterial district of C'abin Creek, in the County of Kanawha, in which the ■said governor had declared a state of war to exist, by proclamation duly issued and published, seek discharges and liberation upon writs of habeas corpus duly issued by this Court.
Upon these writs, lack of authority in the governor to institute, in cases of insurrection, invasion and riot, martial law is denied in argument. A further contention is that his power to do so extends only to the inauguration or establishment of a limited or qualified form of such law, subordinate to the civil jurisdiction
All agree as to the character and scope of martial law, unrestrained by constitutional or other limitations. The will of the military chief, in this instance the governor of the state, acting as commander-in-ehief of the army, is, subject to slight limitations, the law of the military zone or theater of war. It is sometimes.spoken of as a substitute for the civil law. It is said also that the proclamation of martial law ousts or suspends the civil jurisdictions. These expressions are hardly accurate. The invasion or insurrection sets aside, suspends and nullifies the actual operation of the Constitution and laws. The guaranties of the Constitution as well as the common law and statutes, and the functions and powers of the courts and officers, become inoperative by virtue, of the disturbance. The proclamation of martial law simply recognizes the status or condition of things resulting from the invasion or insurrection and declares it. In sending -the army into such territory to occupy it and execute the will of the military chief for the time being, as a means of restoring peace and order, the executive merely adopts a method of restoring and making effective the Constitution and laws within that territory, in obedience to his sworn duty to support the Constitution and execute the laws.
This power is a necessary incident of sovereignty. It is necessary to the preservation of the state. Subject to the jurisdiction and powers of the federal government, as delegated or surrendered up by the provisions of the federal Constitution, this
The provisions against the suspension of the writ of habeas corpus and trial of citizens by military courts for offenses cognizable by the civil courts cannot, in the nature of things, be aetually operative in any section in which the Constitution itself and the functions of the courts have been ousted, set aside or obstructed in their operation by an invasion, insurrection, rebellion or riot. In such cases, the constitutional guaranties of life, liberty and property have ceased to be operative and efficacious. The lives, liberty and property of the people are at the mercy of the invading, insurrectionary, rebellious or riotous element in control. Their will and' desires, not the Constitution and laws, rule and govern. There is no court with power to grant or on-force the writ of habeas corpus within the limits of such territory. There is no court in which a citizen can be fried, nor any whose process can be made effective for any purpose. No doubt the Constitution and laws of the state are theoretically or potentially operative but they are certainly not in actual and effective operation. The exercise of the military power, disregarding for the time being the constitutional provisions relied upon, is obviously necessary to the restoration of the effectiveness of all the provisions of the Constitution, including those which are said to limit and restrain that power.
To ascertain the extent and purpose of the incorporation of
The guaranties of supremacy of the civil law, trial by the civil courts and the operation of the writ of habeas corpus should be read and interpreted so as to harmonize with the retention in the executive and legislative departments of power necessary to maintain the existence of such guaranties themselves. It is reasonable and logical. Otherwise the whole scheme of government may fail. So interpreted, they have wide scope and accomplish their obvious purpose. The attempt to extend them further would be futile and result in their own destruction. The interruption is of short duration. It is only while military government is used as an instrument of warfare that the commander’s will is law. New Orleans v. Steamship Co., 20 Wall. 387;
It seems to be conceded that if the governor has the power to declare a state of war, his action in doing so is not reviewable by the courts. Of the correctness of this view, we have no doubt. The function belongs to the executive and legislative departments of the government, and is beyond the jurisdiction and powers of the courts. There is room for speculation, of course, as to the consequences of an arbitrary exercise of this high sovereign power, but the people, in the adoption of their Constitution, may
Power to establish a military commission for the punishment of offenses committed within the military zone is challenged in argument; but we think such a commission is a recognized and necessary incident and instrumentality of martial government. A mere power of detention of offenders may be wholly inadequate to the exigencies and effectiveness of such government. How long an insurrection or a war may last depends upon its character. Such insurrections as are likely to occur in a state like this are mild and of short duration. But no man can foresee and foretell the possibilities, and a government must be strong enough to cope with great insurrections and rebellions as well as mild ones.
That the courts'of Kanawha county sit within the limits of that county and outside of the military zone does not preclude the exercise of the powers here recognized as vested in the executive of the state. These petitioners were arrested within the limits of the martial zone. There the process of the courts did not and could not run during the period of military occupation, and presumptively the state of affairs in that district, at the time of the military occupation and immediately before, was such as to pro-elude the free course and effectiveness of the civil law and the process of the court, however effective they may have been in other sections of Kanawha county. The Constitution and laws themselves admit the obvious inadequacy and insufficiency of ordinary process and penalties in cases of insurrection by authorizing military suppression thereof. Participants therein arrested and committed to the civil authorities could easily find means of delaying trial and liberated, on bail, return to the insurrectionary camp and continue to render aid and give encouragement by un
The offenses for which the petitioners were punished were committed in an interim between two successive periods of martial government. The first proclamation was raised about the middle of October, and the disturbances which had occasioned it immediately broke out again, and these offenses were of the kind and character which had made the occupation necessary. About the middle of November there was a second proclamation of a state of war. Just a few days before this second declaration, these offenses were committed, and the offenders were found within the military zone, and were arrested, tried and convicted. If the of
We are not reviewing the sentences complained of, nor ascertaining or declaring their legal limits. Our present inquiry goes only to the question of legality of the custody of the respondent at the present time and under the existing conditions. The territory in which the offenses were committed is still under martial rule. It suffices here to say whether the imprisonment is, under present conditions, authorized by law, and we think it is. We are not called upon to say whether the end of the reign of martial law in the territory in question will terminate the sentences and upon that question we express no opinion.
Upon the facts set forth in the petition, wc are of the opinion that the petitioners are in lawful custody, and we therefore remand them to the custody of the respondent.
Petitioners Remanded.
Dissenting Opinion
(dissenting) :
The majority opinion boldly asserts that the sacred guaranties of our State Constitution may be set aside and wholly disregarded on the plea of necessity. It had long been supposed that such a doctrine was forever condemned and foreclosed in this State. It was believed that the ringing denouncement against that doctrine in the opening sentences of our Constitution was sufficient to bar it from recognition by any citizen, official, or judge. The unmistakable words were supposed to be too clear ever to endanger our people by a disregard of their meaning. Hear them: "The provisions of Hie Constitution of the United States, and of this State, are operative alike in a period of war as in time of peace, and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of goo3¡ government, and lends to anarchy and despotismArt. I., sec. 3.
How closely akin are these words to those that were uttered
A decision based on that which our people have so clearly condemned and inhibited from recognition in our State government, and which the highest tribunal in the land has so plainly declared to be pernicious and to have no place in our form of government, meets my emphatic dissent.
It is not difficult to comprehend why our State Constitution contains such a clear and unmistakable protest against the disregard of constitutional guaranties under the plea of necessity. During the decade immediately preceding the making and adoption of that instrument, this doctrine of necessity was a live issue before the American people. Indeed, just at the close of the Civil War, and immediately thereafter, the doctrine was one of the foremost issues of the 'times. Events brought it vividly before the nation. Those who applied the doctrine during the war and at its close for the summary trial and execution of noncombatants were met with the accusation of murder from both North and South. Even in one.of the counties of this State a citizen was summarily deprived of his life under the plea of military rule and the doctrine that necessity suspended the Constitution. Instances of this character, as well as the many instances of imprisonment without civil trial, caused the question to come immediately before the statesmen of the times, and, by the debates upon it, to come directly before all the people. The people had become thoroughly familiar with the subject. Great men of the North, foremost among them the illustrious Garfield, had thundered against the doctrine. And at last, the great judicial tribunal of the nation had set its seal of condemnation
So it was that when our constitutional convention assembled in 1872, the persistent claim that necessity could abrogate a com stitutional provision naturally came to be considered. That convention saw, by the recent example in North Carolina, that notwithstanding the condemnation that this doctrine of necessity-had received from the greatest and most cautious minds of the-country, it was likely still to be claimed in state government.. Hence, the strong men of that convention deemed it essential to-make clear pronouncement against such a doctrine ever finding, hold in West Virginia. They had become fully advised about the question by having been face to face with it. The people who-approved and ratified the Constitution were advised by the same experience. They hated the doctrine that a Constitution might be set aside or declared inoperative at the will of an official created by that Constitution itself, as all lovers of constitutional government hate such a doctrine. Therefore, as a part of their compact of government, the)1' adopted the forceful declaration-against abrogating the guaranties of that compact, at any time, on the plea of necessity. Let us again bring that declaration to-mind: “The provisions of the Constitution of the United States, and of this State, are operative alike in a period of wai as in time of peace, and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subver
Martial law can not rightly be sanctioned in W'est Virginia in the face of this constitutional declaration. For, as the majority opinion admits, martial law is a departure from the Constitution, a plain violation thereof, under the plea of necessity. It substitutes the law of a military commander for the law of the Constitution. It is the total abrogation of orderly presentment and trial by jury, so jealously guarded by the Constitution. Then, since martial law is such a plain departure from the Constitution, that instrument itself brands martial law as subversive to good government and as tending to anarchy.
Having made this general declaration against martial rule, the makers of our Constitution went further. They provided that the privilege of the writ of habeas corpus should not be suspended. This was 'a radical change from the Constitution of 1863, and was radically different from the Constitution-of the United States. Our Constitution of 1863 had provided :■ “The privilege of the writ of habeas corpus shall not be suspended except when in time of invasion, insurrection or other public dan.ger, the public safety may require it/’ The Constitution of the United States provides: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion •or invasion the public safety may require it.” But in the making of our present Constitution, iii dealing with the great writ ■of freedom, no exception was made. Again unmistakable, imperative words were used: “The privilege of the writ of habeas corpus shall not be suspended.” Art. III., sec. 4. The people ■clearly meant something by the change. They evidently meant exactly what they said — that the great writ, which any citizen •deprived of his liberty without due form of law may command, should in no case be suspended under a claim of necessity for military rule. Having so plainly declared in general terms ■against the doctrine of necessity, in the former provision, as we have seen, they made this provision as to the privilege of the writ of habeas corpus to conform to that former declaration. They well knew that the exceptions contained in their former
Not content with the two declarations against martial law which we have seen, the founders grew even more specific, They again said: “The military shall be subordinate to the civil power; and no citizen, unless engaged in the military service of the State, shall be tried or punished by any military court, for any offence that is cognizable by the civil courts of the State.” Art. III., sec. 12'. There is no ambiguity in these words. He who runs may-read. They directly strike at martial law; they directly inhibit martial law. For, the height of martial law is the supplanting of the civil courts by military courts. But this provision expressly ordains that military courts shall never take the place of the civil courts of the State for the trial of civil offenses. No military sentence for a civil offense can rightly stand in the face of these words. Nor can these words rightly be overlooked in order to uphold any such military sentence. To do so is to make the Constitution a rojie of sand.
The men of the Constitutional Convention of 1872 had all witnessed the suspension of the privilege of the writ of habeas corpus and the trial and sentence of. citizens by military courts. They had learned that departure from the Constitution, though dictated by the best of motives, was liable to abuse. Experience admonished them to guard against anything of the kind in the future of their State. They no doubt believed that, by the three provisions which wo have noticed, they had banished all claim for martial law in this State. Determination to do so was plainly dictated to them by .the experiences through which they'had passed. By those experiences they had come to know the truth of that which Hamilton had written long years before: “Every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers toward the constitution of -a country, and forms a precedent for other breaches, where the same plea of necessity does not exist at all, or is less urgent and palpable.” The Federalist, No. 25.
Can these direct provisions of our Constitution be overcome by any implication that the people meant to retain martial law whenever an executive declared it necessary? Is there a pre
It is said that the State must live. So must the citizen live and have liberty — -the constitutional guaranties vouchsafed to him. The founders of our State government saw lit to exclude this claimed theory of implied or presumed right of self-defense in a State. They knew it to be absolutely unnecessary as to any State in the American Union under the Constitution of the United States. They knew -that it was even more likely to lead to abuse than to good. They could well afford to disclaim it by positive prohibitions against its exercise; for the Constitution of the Union fully protected the State. Were they not consistent in denouncing and prohibiting a principle of self-defense wholly out of harmony with constitutional government, and in relying on the safety vouched to the State by the general government of the Union of which it is a part? Was not the guaranty of the great general government sufficient for the continued life of the State? That guaranty speaks plainly: "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion ; and on application of the legislature, or of. the executive (when the legislature cannot be convened), against domestic violence.” Art. IV., sec. 4. Does the State for its preservation need methods so at variance with constitutional guaranties as is martial law when it may obtain the power of the Union to suppress even domestic violence? Can not the militia and the United States army pacify any section of the State, or the whole State, by methods strictly within the Constitution and laws? It was so believed when the Federal government was formed. Federalist, No. 42. Referring to this guaranty by the general government, a renowned author and judge, says: “This article, as has been truly said, becomes an immense acquisition of strength and additional force to the aid of any state government in case of internal rebellion or insurrection against
It is claimed that the power given by the Constitution to the Governor, as commander-in-chief of the military forces of the State, to “call out the same to execute the laws, suppress insurrection and repel invasion,” authorizes a proclamation of martial law. Are these words to undo every other guaranty in the instrument ? Can we overturn the many clear, direct and explicit provisions, all tending to protect against substituting the will of one for the will of the people, by merest implication from the provision quoted? That provision gives the Governor power to use the militia to execute the laws as the Constitution and legislative acts made in pursuance thereof provide they shall be executed. It certainly gives him no authority to execute them otherwise. In the execution of the laws the Constitution itself must be executed as the superior law. The Governor may use the militia to suppress insurrection and repel invasion. But that use is only for the purpose of executing and upholding the laws. He can not use the militia in such a way as to oust the laws of the land. It is put into his hands to demand allegiance and obedience to the laws. It, therefore, can not be used by him for the trial of civil offenses according to his own will and law; for, to so use it would be to subvert the very purpose for which it is put into his hands. By the power of the militia he may, if the necessity exists, arrest and detain any citizen offending against the laws; but he can not imprison him at his will, because the Constitution guarantees to that offender trial by juiy, the judgment of his peers. He may use military force where force in disobedience to the laws demand it; but military force against one violating the laws of the land can have no place in the trial and punishment of the offender. The necessity for military force is at an end when the force of the offender in his violation of the laws is overcome by his arrest and detention. There may be force used in apprehending the offender, and in bringing him to constitutional justice, but surely none can be applied in finding his guilt and fixing his punishment.
It is further claimed that the statute which says that the Governor may declare a state of war in towns, cities, districts, or counties where invasion, insurrection, rebellion or riot exists, is
‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property,*536 without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’
“The Constitution of the United States affords protection, therefore, against the dangers of a declaration of martial law by the legislature of a State as well as against the danger of its declaration by Congress. The principle holds true both as to the United States and the States that the only justification of martial law is necessity.
“It is a well-settled principle that when a person is vested by law with a discretionary power his decision within the range of his discretion is conclusive on all, and therefore binding on the courts. This rule has been applied to the subject of martial law, and it has been contended that the officers who enforce it are acting within the range of their discretion, and are protected by the principle which makes them the judges of the necessity of the acts done in the exercise of a martial-law powei\ From my stand-point such air application of the principle is entirely wrong — for the reason that if martial law is nothing more than the doctrine of necessity called out by the State’s right of self-defence the officer can have no discretion in the matter. He will or he will not be able to justify according to his ability to prove the necessity for his act; he will find no toleration of the plea that the necessity for his act, and therefore its justification, cannot be inquired into by the courts because he was acting within the sphere of his lawful discretion. The officer is not by any law vested with a discretion in this matter. Such a discretion .and the doctrine of necessity can not exist together.
“But this necessity need not be absolute, as determined by events subsequent to the exercise of the power. The Supreme Court has, as we have already seen, laid down the rule much more favorable to the person using the power. It is worth repeating :
Tn deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted must govern the decision for he must necessarily act upon the information of others as well as his own observations And if, with such information qs he had a right 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*537 it, and the discovery afterwards that it was false or erroneous will not make him a trespasser But it is not sufficient to show that he exercised an honest judgment, and took the property to promote the public service; he must show by proof the nature and character of the emergency, such as he had reasonable grounds to believe it to be, and it is- then for a jury to say whether it was so pressing as not to admit of delay; and the occasion such, according to the information upon which he acted, that private rights must for the time give way to the common and public good. (Mitchell v. Harmony, 13 How. 427.)
“Under the Constitution of the United States there can never be any justification for the exercise of the military power to which these remarks relate other than the rule of necessity as thus applied.”
In the North Carolina cases, supra, it was sought to justify the acts of the' Governor on provisions of the Constitution and statutes of the State similar to those relied on in the cases before us; that is to say, that the Governor may call out the militia, and may declare a state of war to exist. But the Constitution of that State provided exactly as ours provides: “The privilege of the writ of habeas corpus shall not be suspended.” That which was said by the Chief Justice of North' Carolina, in an opinion approved by his associates, aptly applies to our own Constitution and laws, and to the cases under consideration:
“Mr. Badger, of counsel for his Excellency, relied on the Constitution, Art. XII., s. 3, ‘The Governor shall be Commander-in-Chief, and have power to call out the militia to execute the law, suppress riots or insurrections, and to repel invasion/ — and on the Statute of ISfíO-UO, chap. 27, sec. 1 — ‘The Governor is hereby authorized and empowered, whenever in his judgment the •civil authorities in any County are unable to protect its citizens in the enjoyment of life and property, to declare such County to be in a state of insurrection, and to call into active service the militia of the State, to such an extent as may become necessary to suppress the insurrection/ and he insisted that:
‘1. This clause of the Constitution, and the statute, empowered the Governor to declare a County to be in a state of insurrection, whenever, in his judgment, the civil authorities' are*538 unable to protect its citizens in the enjoyment of life and property Tlie Governor has so declared in regard to the County of Alamance, and 'the judiciary cannot call his action in question, or review it, as the matter is confided solely to the judgment of the Governor;
‘2. The Constitution and this statute, confer on the Governor, all the powers ‘necessary’ to suppress the insurrection, and the Governor has taken military possession of the county, and ordered the arrest and detention of the petitioner as a military prisoner. This was necessary, for unlike other insurrections, it was not open resistance, but a novel kind of insurrection, seeking to effect its purpose by a secret association spread over the country, by scourging, and by other crimes committed in the dark, and evading the civil authorities, by masks and fraud, perjury and intimidation; and that,
‘3. It follows, that the privilege of the writ of habeas corpus, is suspended in that county, until the insurrection be suppressed/
“I accede to the first proposition; full faith and credit are due to the action of the Governor, in this matter, because he is the competent authority, acting in pursuance of the constitution and the law The power, from its nature, must be exercised by the executive, as in case of invasion or open insurrection. The extent of the power is alone the subject of judicial determination.
“As to the second, it may be that the arrest and also the detention of the prisoner is necessary, as a means to suppress the insurrection. But I cannot yield my assent to the conclusion: the means must be proper, as well as necessary, and the detention of the petitioner as a military prisoner, is not a proper means. For it violates the Declaration of rights, ‘The privilege of the writ of habeas corpus, shall not be suspended/ — Constitution, Art. 1, sec. SI.
“This is an express provision, and there is no rule of construction, or pi’inciple oí constitutional law, by which an express provision can be abrogated and made of no force by an implication from any other provision of the instrument. The clauses should be construed, so as to give effect to each, and prevent conflict. This is done, by giving to Art. XII., sec. 3, the effect of allowing military possession of a county to be taken, and the arrest of all suspected persons, to be made by military authority,*539 but requiring, by force of Art. I., sec. 21, tlie persons arrested, to be surrendered for trial, to the civil authorities, on habeas corpus, should they not be delivered over without the writ.
“This prevents conflict with the habeas corpus clause, and harmonizes with the other articles of the ‘declaration of rights’, i. e. trial by jury, etc., all of which have been handed down to us by our fathers, and by our English ancestors, as great fundamental principles, essential to the protection of civil liberty.
“I declare my opinion to be, that the privilege of the writ .of habeas corpus has not been suspended by the action of his Excellency; that the Governor has power, under the Constitution and laws, to declare a county to be in a state of insurrection, to take military possession, to order the arrest of all suspected persons, and to do all things necessary to suppress the insurrection, but he has no power to disobey the writ of habeas corpus, or to order the trial of any citizen otherwise than by jury. According to the law of the land, such action would be in excess of his power.
“The judiciary has power to declare the action of the Executive, as well as the acts of the General Assembly, when in violation of the Constitution, void and of no effect.”
No power for the recognition of martial law could be found in our Constitution, even were those provisions which directly condemn and prohibit it not in the instrument. To say that merest implication or presumption totally at variance with express inhibitions, and directly overthrowing all the important guaranties of the instrument itself, may be resorted to for the purpose of justifying martial law, introduces a new rule of constitutional construction. The constitutional purposes of the militia can not rightly be so subverted. True, the militia exists by the Constitution. But that military establishment is not raised by it ever to take the place of the Constitution, its creator. The mere raising of a militia does not signify, as the majority conceive, that it is raised for martial law. It is raised to enforce the laws by constitutional methods. It is raised to comply with the great military organization of the Federal Government, under the provisions of-the Constitution of the Union. Art. I., sec. 16.
Let us look at some guaranties of our Constitution that may now lightly be ignored by the force of the majority decision—
Art. III., sec. 4. “No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury. No bill of attainder, ex post facto law, or law impairing the obligation of a contract shall be passed.”
Art. III., sec. 10. “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”
Art. III., sec. 14. “Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defence; and there shall be awarded to him compulsory process for obtaining witnesses in his favor.”
Art. III., sec.* 17. “The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be- administered without sale, denial or delay.”
Can the absolute, unrestrained, and unreviewable will of the Governor be substituted for these provisions? That it may is the decision of the majority of this Court. One gross error of that decision is that it bases the right to martial law solely on the decision and proclamation of the Governor and not on actual necessity. No mere decision or proclamation can justify
We shall now soon proceed to see how these principles, announced by the Supreme Court of the United States, sustained preeminently by the best thought of all constitutional governments, as a research will show, apply to the cases of the petitioners, Dance and Mays. But before proceeding thereto, it will be necessary to show the actual status of these cases. It may be inferred from the majority opinion that Dance and Mays, are mere prisoners of war. They occupy no such relation. Nor are they merely detained by the militia in the suppression of riot, insurrection or rebellion. Their petition for writs of habeas corpus, and the returns of the warden of the penitentiary thereto make no such cases against them. Nor was it argued at the bar or in the briefs that they have any such relation. It plainly appears that they áre citizens of Kanawha county, not connected with the military service, charged before a military commission for violations within that county of certain provisions of the statutes of West Virginia amounting thereunder to misdemeanors, arrested by the militia, tried by military commission pursuant to the order of the Governor, sentenced for specific terms in the penitentiary, and transported thereto for imprisonment for their respective terms of sentence by the approval of the Governor as commander-in-chief, all at a time when the criminal courts of Kanawha county were open, able and with full jurisdiction to try the charges against them. In other words, these petitioners are held, as the returns show, on specific sentences, one for five years, the other for two, in the penitentiary, as civil offenders tried and committed by a military court under the guidance of the following military order:
State Capitol,
Charleston, November 16, 1912.
General Orders
No. 23.
The following is published for the guidance of the Military Commission, organized under General Orders No. 22, of this office, dated November 16, 1912:
1. The Military Commission is substituted for the criminal*543 courts of the district covered by the martial law proclamation and all offences against the civil laws as they existed prior to the proclamation of November 15,1912, shall be regarded as offences under the military law and as a punishment therefor, the Military Commission can impose such sentences, either lighter or heavier than those imposed under the civil law, as in their judgment the offender may merit.
2. Cognizances of offences against the civil law as they existed prior to November 15, 1912, committed prior to the declaration of martial law and unpunished, will be taken by the Military Commission.
3. Persons sentenced to imprisonments, will be confined in the penitentiary, at Moundsville, West Virginia.
By Command of the Governor;
C-. D. Elliott,
Adjutant General.”
The returns of the warden do not pretend to justify his authority to hold petitioners other than under sentences, for specific terms, by this military commission. He justifies under no other commitments. 1 It is to the commitments that we must look in these proceedings to determine the legality of the imprisonment. Says the great commentator: “The glory of the English law consists in defining the time, the causes, and the extent, when; wherefore, and to what degree the imprisonment of the subject may be lawful. This it is which induces the absolute necessity, of expressing upon every commitment the reason for which it is made; that the court upon an habeas corpus may examine into its validity.” Blackstone, Book III., page 133
What actual necessity justified the creation of this military commission and the recognition of its powers to supplant the civil courts ? As we have seen, nothing but the complete lack of power of the civil courts for the trial of the charges against Nance and Mays, arising by the annihilation and inoperation of those courts, could, if martial law was at all allowable, justify their military trial and sentence. Could Nance and Mays have been tried for the offenses with which they were charged by the civil courts, under the ordinary forms of law, as an actual fact? We know by the record of these cases, we know judicially, that they could have been so tried. But an answer that is attempted is this, that the Governor by his proclamation had set off the por
The offenses of Nance and Mays were cognizable by a civil court. That is, they were capable of being tried in the proper criminal court of Kanawha county, by a jury, upon presentment and indictment by a grand jury. The disturbances did not make it impossible to give them the constitutional course of trial. Thus no necessity justified the course pursued. No actual physical fact, in the widest view, prevented the operation of the direct shield of the Constitution, wherein it provides: “No-citizen * * * shall be tried or punished by any military court,, for an offence that is cognizable by the civil courts of the State.”' The offenses charged against Nance and Mays were plainly cognizable by a civil court — capable of being presented and tried there. The only excuse for their not being tried there is that the-Governor ordered otherwise. Thus the Governor alone made the-necessity. Under the circumstances, in any considerate view, their trials and sentences were not by due process of law, and were grossly illegal and void.
There were no courts, other than those of justices, within the' actual theater of the disturbances on Cabin Creek that could be rendered inoperative by the riotous condition there. The criminal court that pertained to that part and to the whole of the-county was far from the seat of riot and wholly unaffected in its powers for regular and orderly presentment and trial. Even as-to offenses cognizable only by justices, there was power and opportunity to bring offenders from that region to trial before justices in undisturbed districts of the county. But it does not even appear that the disturbances in the district rendered it impossible, by the aid of -the militia there present, for the courts of justices' of the peace there to mete out justice according to the civil law-. The war must put the ordinary courts out of business, out of reach, before military courts can ever take their place. This of' course may be different in foreign conquered territory where the courts of the conquered country are not in sympathy with the obligations of the conquering army to society. It can not be gainsaid that the ordinary courts for Cabin Greek District were .at all times during the disturbances within reach and ’in operation. The militia could reach them with prisoners for
Some of that which we have written in preceding paragraphs, is based on the assumption of the tolerance of martial law, simply of course for the purposes of argument. We reiterate that it can never be rightly tolerated in this State. Indeed martial law to the extent of trial and sentence for civil offenses anywhere within our fair land deserves no support from any student of •constitutional history. Garfield, by his great argument and review of history, before the Supreme Court of the United States, in the Milligan case, convinces any thoughtful reader, in this behalf. No greater exposition of the subject, no severer condemnation of martial law as connected with constitutional government, was ever given to the world. It was given voluntarily, /gratuitously, faithfully, solely in behalf of constitutional government. Yet it is but one among the many supporting the great weight of opinion on the subject. Garfield’s Works (Hinsdale), "Yol. I., page 143.
. The most recent review of the subject of martial law is that by Professor Ballantine, of the University of Montana. It deals with all the adjudged cases, and assures one of the soundness of its conclusions. Specific citation to it will hereinafter be made. It denies that martial law may be applied in state government. This writer says:
“It is believed that there is no warrant in the history of con•stitutional government for vesting in the governor, as commander of the military forces of the state the absolute discretionary power of arrest, and, as a logical consequence, of life and death, so that his command or proclamation may take the place •of a statute, and convert larceny into a capital offense, in going 'beyond legislative power, deprive citizens unreasonably and arbitrarily of life or liberty without review in the courts. Johnson v. Jones (1867), 44 Ill. 142; Ela v. Smith (Mass. 1855), 5 Gray 121.
“The true view, undoubtedly, is that during a riot or other •disturbance militia-men and their officers are authorized to act*547 merely as a body oí armed police with tire ordinary powers of police officers. Franks v. Smith (Ky. 1911), 134 S. W. 484. This is as far as the actual decision goes in Luther v. Borden (1849), 7 How. 1. Their military character cannot give them immunity for unreasonable excess of force. The governor of a state, as commander of the militia, is merely the chief conservator of the peace, and entirely destitute of power to proclaim martial law, punish criminals or subject citizens to arbitrary military orders which he unreasonably believes to be demanded by public emergency.
“In a garrisoned city, held as an outpost of loyal territory, or in home districts threatened or recently evacuated by the enemy, military necessity for the public defence would certainly justify all temporary restrictions on the liberty of citizens essential to military operations, such as the extinguishment of lights, the requiring of military passes to enter or depart, and the quelling of public disorder. But the prosecution and punishment of persons suspected of conspiracy, sedition, or disloyal practices, and of treason itself, belongs to the tribunals of the law, and not to the sword and bayonet of the military. Where the army is not invading enemy territory of a recognized belligerent, but is in its own territory, the military authorities remain liable to be called to account either in habeas corpus or any other judicial proceeding for excess of authority toward citizens, no matter whether it occurred in propinquity to the field of actual hostilities or while the courts were closed, or after a proclamation of martial law.”
The issue involved in these cases is a marked one: Shall a citizen be subjected to trial before a military commission regardless of constitutional guaranties at any time the Governor may see fit, and that citizen have absolutely no redress from such procedure? In other words: May any citizen be absolutely within the power of the executive and the militia which has been placed in his hands ? These questions are indeed more momentous than the people of this busy era may conceive. The affirmative answer to them annuls that true liberty which was bought by blood and sacrifice and which long has been jealously guarded •and defended. It seems necessary that we should repeat what Mr. Justice Davis said in the Milligan case:
*548 “It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission. The proposition is this: That in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.
“If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within the limits, on the plea of necessity, with the approval of the executive, substitute military force for and to the exclusion of the laws, and punish all persons; as he thinks right and proper, without fixed or certain rules.
“The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guaranty of the Constitution, and effectually renders the ‘military independent of and superior to the civil power’ — the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable and, in the conflict, one or the other must perish.
“This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of' liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew — the history of the world told them — the nation they were founding, be its existence short*549 or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.
“It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the peril-to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit, in the exercise of a proper discretion, to make arrests, should not be required to produce the person arrested in answer to a writ of habeas .corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of common law. If it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instruments were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by ah established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolate. But it is insisted that the safety- of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.”
This State is a government of its own people. It should matter not that civil rights may at some time have been transgressed elsewhere. We should not permit them to be transgressed here. The insignia of the State bears our legend of freedom. It can not be kept unless we sacredly observe the Constitution by which all, whether guilty or innocent, are bound alike. Freedom for a West Virginian means the giving to him what his state Constitution and that of the nation guarantee to him. Nor does it matter whether that West Virginian be rich or. poor, idler or laborer, millionaire or mountaineer. The Constitution is no respecter of persons.
A sense of duty has impelled the writing of this opinion. If it may in the future only cause the doctrine promulgated by the majority to be questioned, the labor will not have been in vain.
Will the reader of this opinion reserve hasty judgment against conclusions which it announces, until he has made studious examination of the citations herein and the three following expositions on the subject of martial law, together with the cases cited in them:
“Military Commissions,” Garfield’s Works (Hinsdale), Vol. I., page 143.
“What is the Justification of 'Martial Law,” Lieber, War Dept. Doc. No. 79; North American Review, Nov. 1896.
“Martial Law,” Ballantine, Columbia Law Review, June 1912.
The decisions and treatises relied on herein make no distinc
Will the reader who refers to the decisions and treatises cited also note that there is a clear distinction between the power to use martial acts for the suppression of riot, insurrection or rebellion and the power to use martial law for the trial of civil offenses. Martial acts are one thing; martial law is another.
It may be said that the treatises referred to are not judicial in character. Rhe same is true as to every text book .of the law.
And now, how applicable are the words of David Dudley Meld, that ardent advocate of constitutional government:
“I could not look into the pages of English law — I could not turn over the leaves of English literature — I could not listen to the orators and statesmen of England, without remarking the uniform protest against martial usurpation, and the assertion of the undoubted right of every man, high or low, to be judged according to the known and general law, by a jury of his peers, before the judges of the land. And when I turned to the history, legal, political, and literary, of my own country, — my own undivided and forever indivisible country, — I found the language of freedom intensified. Our fathers brought with them the liberties of Englishmen. Throughout the colonial history, we find the Colonists clinging, with immovable tenacity, to trial by jury, Magna Charta, the principle of Representation, and the Petition of Right. They had won them in the Eatherland in many a high debate and on many a bloody field; and they defended them here against the emissaries of the crown of England and against the veteran troops of Prance. We, their children, thought we had superadded to the liberties of Englishmen the greater and better guarded liberties of Americans.” Brewer’s Orations, Vol. 6, page 2154.
Dissenting Opinion
Additional opinion by
The attempt, in the dissenting opinion prepared since the filing
The Milligan Case, 4 Wall. 1, the opinion in which constitutes the real basis of the elaborate argument against the views of the majority of the Court, arose in the state of Indiana, in which there was no actual war nor any pretense thereof. That state was in a military, but nevertheless peaceable, district. Milligan was a citizen of the state, arrested therein upon a charge of conspiracy against the government of the United States, tried on that charge by a Military Commission, convicted and sentenced to death. The specifications under the charge were substantially as follows: That Milligan with others, in a time of actual war, set on foot a secret military organization for the purpose of overthrowing the government and conspired to seize the United States and state ■arsenals, and to release the prisoners of war confined in the military prison under charge of the military authorities; to arm these prisoners; to join with them such other forces as they could raise; and to march into Kentucky and Missouri and to co-operate with the rebel forces there; that the conspirators communicated with the enemy to induce them to invade the states of Kentucky, Indiana and Illinois, intending themselves to join and co-operate with the enemy in the event of such an invasion, and that they armed themselves for that purpose.
Of the character of the case, the court said: “It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on States in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was
Of the class of cases to which this one belongs, and that one did not, the court said: “It follows from what has been said on this subject, that there are occasions when martial rule 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 actual military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should 'obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a
It was against the attempted misapplication of martial law to the pacific-state of Indiana and her citizens, on the ground of the-existence of a state of actual war in other portions of the Union,, but not extending into Indiana, that the thunderous eloquence- and invincible logic of Garfield, Black, ¡McDonald and Mr. Justice Davis were directed. All of them admitted its proper application to the theater of actual war in the Southern states.
During the greater part of the period of the Civil War, the situation in most of the state of West Virginia was similar to that of Indiana. It was pacific territory, though within the lines of a military district. Here, as in Indiana and elsewhere, there were abuses of military authority on a mere pretext of necessity, since there was no actual war in it and the functions of the courts were not obstructed. Acts and practices sanctioned by the principles of martial law, when applicable, were indulged in by the military officers and soldiers. This history was fresh in the recollections of the framers of the Constitution of 1872. The friends and relatives of delegates to that convention and perhaps some of the delegates themselves had been victims of such illegal acts. To give effect to the provisions of the national and state Constitutions in all pacific territory in a period of war as in time of peace closes the avenue of such abuses of power as that condemned in the Mil-ligan Case. That this was the evil the provision quoted in the dissenting opinion from Art. I. of the Constitution was intended to remedy is made manifest by the conditions and experiences in the light of which it was framed and adopted. Constitutional and statutory provisions are always to be interpreted in the light of the evils they were obviously designed to remedy, and do not, as a rule, extend beyond such purpose. No other rule of interpretation is more firmly established or more generally recognized. It is a rule of common sense.
Nor do the terms of the section above referred to justify or sustain the broad view and claim for which it is cited. It makes no reference to the theater of actual war. It does not say the constitutional provisions shall be operative in invaded, insurrec-tionary or rebellious portions of the state. It specifies times not places, saying the provisions shall be operative, (where they can
Section 3 of Art. I. is a declaration of a general principle, carried into effect by the more specific provisions referred to in the original opinion filed herein, declaring subordination of the military to the civil power and inhibiting trial of citizens by military courts for offenses cognizable by the civil courts. Their purpose is to prevent such trials in tranquil territory in which the courts have free and unobstructed operation. In the areas of actual war, however occasioned, they do not have free course. Offenses committed there are not cognizable by the civil courts, because not within their reach, and, if they are committed in aid or furtherance of the invasion, insurrection, rebellion or riot, they are punishable by a military commission appointed for the trial thereof.
The dissenting opinion confuses the occasion and conditions of a state of war with the suspension of the writ of habeas corpus. During the troublous times of the Civil War, there were attempted and actual suspensions of the writ in pacific portions of the country. That alone did not create war in such territory and
While the supreme court of North Carolina in Ex part Moore and others, 64 N. C. 802, the opinion which is quoted at great length in the dissenting opinion filed here, claimed the writ of habeas corpus ran in the theater of actual war, it confessed its inability to enforce it, expressly refusing rules and attachments against the military officer, in whose custody the petitioners were, and the governor by whose direction and orders he held them and refused to obey the writ. The Chief Justice stated his final conclusion in the following terms: “The second branch of the motion, That the power of the county be called out if necessary, to aid in taking the petitioner by force out of the hands of Kirk, is as difficult of solution as the first. The power of the county, or ‘posse comitatus’, means the men of the county in which the writ is to be executed: in this instance Caswell, and that county is declared to be in a state of insurrection. Shall Insurgents be called out by the person who is to execute the writ, to join in conflict with'the military forces of the State ? It is sa'id that a sufficient force will volunteer from other counties'. They may belong to the association, or be persons who sympathize with it. But the ’posse comitatus’ must come from the county where the writ is to be executed; it would be illegal to take men from other counties. This is settled law. Shall illegal means be resorted to in order to execute a writ? Again: every able-bodied man in the State belongs to the militia, and the Governor is by the Constitution ‘commander-in-chief of the militia of the State’, Art. III., sec 8. So the power of the county is composed of men who are under the command of the Governor; shall these men be required to violate, with force, the orders of their Commander-in-chief, and do battle with his other forces that are already in the field ? In short, the whole physical power of the State is by the Constitution under the control of the Governor. The Judiciary has only a moral power. By the theory of the Constitution there can be no conflict between these two branches of the government. The writ
The writ having been delivered to the governor, he' replied to it by a letter to the Chief Justice, in which, after reciting his proclamation of war in two counties of the state and the terrible conditions necessitating such action, he said: "Under these circumstances I would have been recreant to duty, and faithless to my oath, if I had not exercised the power in the several counties, which your Honor has been pleased to say I have exercised constitutionally and lawfully; especially as, since October 1868, I have repeatedly, by proclamations and by letters, invoked public opinion to repress these evils, and warned criminals and offenders against the laws, of the fate that must in the end overtake them, if, under the auspices of the Elan referred to, they should persist in their course. I beg to assure your Honor that no one subscribes more thoroughly than I do to the great principles of habeas corpus, and trial by jury. Except in extreme cases, in which beyond all question The safety of the State is the supreme law/ these privileges of habeas corpus and trial'by jury should be maintained. I have already declared that, in my judgment, your Honor and all the other civil and judicial authorities are unable, at this time, to deal with the insurgents. The civil and the military are alike Constitutional powers — the civil to protect life and property when it can, and the military only when the former has failed. As the Chief Executive I seek to restore, not to subvert, the judicial power. Your Honor has done your duty, and in perfect harmony with you I seek to do mine. It is not I, or the military power, that has supplanted the civil authority; that has been done bjr the insurrection in the counties referred to. I do not see how I can restore the civil authority until I ‘suppress the insurrection/ which your Honor declares I have the power to do ; and I do not see how I can surrender the insurgents to the civil authority until that authority is restored. It would be a mockery in me to declare that the civil authority was unable to protect the
This was in July, 1870. On August 15, 1870, the governor again wrote the Chief Justice, apprising him of the .pacification of the two counties in question and his readiness then to make return to the writ. In this letter he said : “I assured your Honor that as soon as the safety of the State should justify it, I would cheerfully restore the civil power, and cause the said parties to be brought before you, together with the cause of their capture and detention. That time has arrived, and I have ordered Col. Geo. W. Kirk to obey the writs of habeas corpus issued by your Honor.”
Thus the case relied upon, as denying power in a governor to declare a state of war in a county, declares exactly the opposite. Though denying power in the executive to do more than make arrests for civil offenses, under an erroneous interpretation of constitutional provisions, the decision also admits lack of power to enforce them as thus construed, and so runs to a palpable absurdity. The decision was later interpreted by Justice Dick of the same court, the Chief Justice and Justice Settle being present, upon applications for bench warrants against the governor and his subordinate officers, as harmonizing with the views of this Court on the main proposition involved. Justice Dick said: “The Constitution and laws of the State authorize and empower the Governor to organize and use the military forces of the State to suppress insurrection, &c., and the Judiciary have no jurisdiction to arrest the Governor, while acting in that capacity, for any alleged transcending of his authority in the discharge of Execiu-live duties. ‘The Legislative, Executive, and Supreme Judicial power of the government ought to be forever separate and distinct from each other.’ Const. Art. I., sec. 8. Each of these coordinate departments has its appropriate functions, and one cannot control the action of the other, in the sphere of its constitutional power and duty. The government was formed for the ben
We hold the governor’s determination of the justification or necessity for proclamation of a state war is not reviewable. So the decision, relied upon in the dissent, holds. We hold the writs of the courts do not run in the war area, or district under martial law. So that decision holds. We hold the courts cannot arrest the arm of the executive engaged in the suppression of an insurrection. So that case holds. That court endeavored to enforce the view that the non-suspension clause, relating to the writ-of habeas corpus, limits the power of the executive in the insurgent district to the making of arrests and immediate delivery of the prisoners to the civil authorities, but admitted lack of power to enforce that view, and said, as we say, the governor was beyond-the power of the judiciary and responsible only to the people, for his actions in the insurrectionary district, declared to be in a state of war.
Recurring to the argument founded upon recent observation and experience in the Civil War, at the date of the adoption of the Constitution, we find further and decisive refutation thereof in a constitutional provision and a statute not referred to in the original opinion. Section 1 of chapter 14 of the Code of 1868, in force at the date of the adoption of the Constitution of 1872, authorized the use of the militia to repel invasion and supjiress insurrection and also to suppress any combination in any part of the state, too powerful to be suppressed by ordinary judicial proceedings, endangering, the peace and safety of the people or obstructing the execution of the laws. Section 6 of the same chapter authorized him to cause to be apprehended and imprisoned, or. compelled to leave the state all who, in time of war, insurrection or public danger, should wilfully give aid, support, or information to the enemy or insurgents, or who, he shall have just cause to believe, are conspiring or combining together to aid or support any hostile action against the United States or this state. Sections 7, 8 and 9 of that chapter show he was not limited, in the means by which to exercise this power, to the civil or judicial process of the state. He was to act upon his own judgment and select his own method of procedure. Section 21 of Article VIII. of the Constitution contained this provision: ' “Such parts of the
An article prepared by Judge-Advoeate-General of the U. S. Army, Norman G-. Leiber, relied upon in the dissenting opinion’,, like the decision in the Milligan Case, deals exclusively with rights and powers in pacific territory, not in the theater of actual1 war. He begins by naming the four kinds of military jurisdiction, (1) regulation of the army; (2) military rule in an enemy’s territory, during occupation thereof; (3) military power-in time of war, insurrection or rebellion over persons in the military service, as to obligations arising out of such emergency, and not falling within the domain of military law, nor otherwise regulated by law, an application of the doctrine of necessity, founded on the right of national self-preservation; and (4) martial law at home, or as a domestic fact; by which is meant military power exercised in time of war, insurrection or rebellion in -parts of the country retaining allegiance. He then says: “It is to this last-mentioned kind of military jurisdiction that these remarks apply.” Though he thus expressly says he is not discussing the-exercise or limits of military power in the theater of actual war, insurrection or rebellion, but only the limits of such power in parts of the country retaining allegiance, necessar^y tranquil
Having quoted this, Gen. Lieber said: “In regard to this case it is deserving.of particular notice that it is an error to rely on it in proof of the theory that Congress has the power to declare martial law, in the sense in which we have been using that term. It is true that this was a case of so-called ‘martial law’ declared by the legislature, but what did the legislature mean by it P The term has no fixed meaning even at the present day; different writers still give it different meanings. When the legislature of Rhode Island made use of it in 1842 it probably was intended to have no more definite meaning than that the militia of the state was to
In the face of the declaration by the Supreme Court of the United States, above quoted, it is argued that a state cannot declare a state of war and adopt the usages of war in the suppression of an insurrection, because the national government may be summoned to the aid of the state in its efforts to uphold and enforce its authority. As the court in Luther v. Borden plainly says, that national obligation and right is in aid of the state government, not in exclusion thereof. It was never intended that the federal government should assume the duties of state government, nor reduce the state to a condition of dependence upon the discretionary exercise of federal power respecting the maintenance of its authority within its own territory, not in conflict with the limitations of the national Constitution upon the powers of the states. The federal government assumed no obligation to do for the states what they can do for themeslves, nor laid any restraint upon their sovereign powers except in certain instances or for the accomplishment of enumerated federal purposes. Observe that Judge Cooley said, in the quotation found in the dissenting opinion, this article of the national Constitution is an “acquisition of strength and additional force to the aid of any state government.” Why should we be asked to read this as if it said “to the exclusion of the powers of any state government?”
Professor Ballentine, like Gen. Lieber, was discussing the exercise of military power in pacific territory, as a careful reading of the quotation from him shows. He is merely stating the doctrine of the Milligan'Case. Frank v. Smith, cited by him, did not arise under a proclamation of war. Johnson v. Jones and Ela v. Smith, are cited by him against authority of the governor, without legislative sanction, to declare war. Here we have both legislative and express constitutional authority in the governor to do so.
The quotations from Gen. Garfield, Gen. Norman, Prof..Bal-lentine, David Dudley Field and others, are not judicial expressions, even if they related to the question here involved, but, worse yet, they have no application to the question.
These provisions rest upon the obvious physical necessity, in government as elsewhere, even at post offices, railway stations, hotels, on highways and in mountain passes, of the observance of order as to time, place and methods of procedure.
Aside from the argument of presumption against the destruction or abolition of a high sovereign power by mere implication, the terms of section 12 of Article VII. of the Constitution may be invoked. This section confers power upon the governor in express terms to call oitt “the military forces of the state * * * to execute the laws, suppress insurrection and repel invasion.” Here is a constitutional grant of express power to “suppress insurrection”, without limitation or prescription of the. mode of exercise thereof. That grant, according to settled rules of interpretation, recognized everywhere, carries with it, by implication, all means reasonably necessary to effective exercises of the power. Under other rules, it carries such power and means as are included in the term “suppress insurrection”, as defined in law. They are defined in law by the authorities relied upon in the dissenting opinion and all others as including the right to apply martial law in an insurrectionary area. It has been so understood in all countries and in all ages. So all departments of the federal government understood and applied it in the War of 1812 and the late Civil War. “The construction, given to a statute by those charged with the duty of executing it, ought not to be overruled without cogent reasons. The popular or received import of words furnishes the general rule for the interpretation of public laws as well as of private and social transactions. * * * When words in a statute, have acquired, through judicial interpretation, a well understood legislative meaning, it is to be presumed they were used in that sense in a subsequent statute on the same subject, unless the contrary appears.” Daniel v.
That, to justify the application of martial rule to a territory or section of a state, the courts thereof must be wholly closed and inoperative, is not sustained by the authorities cited in the dissenting opinion. Some passages in the opinion in the Milligan Case seem to say so, but others say the contrary. The court based its position on its judicial knowledge that “in Indiana the federal authority was always unopposed and its courts always open” and “their process unobstructed.” The opinion says “after this military tribunal was ended the circuit court met, peacefully transacted its business and adjourned, * * * * * required no military aid to execute its judgments, * * * * and was never interrupted.” The opinion also says that, on the theater of active military operations, where war really prevails, “there is necessity to furnish a substitute for the civil authority, * * * and it is allowed to govern by martial law until the laws can have their free course”; and that “Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdictionHaving spoken of open or unobstructed courts having free course, as precluding martial law, and overthrown, obstructed or interrupted courts, as justifying it, shall we not take the opinion as having stated just what the court meant? How else may we logically and sensibly interpret its language? Can we-say it meant only one of several different things mentioned as producing the same effect? Ho doubt they ■ meant just what Mr. J. S. Black, the ablest of Milligan’s counsel, and the greatest lawyer in the case, said of the general plan of our constitutional government in his argument: “Military force repels invasion and suppresses insurrection; you preserve discipline in the army and navy by means of courts martial; you preserve the purity of the civil administration by impeachment of dishonest magistrates; and crimes are prevented and punished by the regular judicial authorities.” Of trials by military commissions, in the war areas, he sai<j: “I have made no allusion to their history in the last five years. But what can be the mean
In dealing with grave questions such as this, we must govern ourselves by settled rules and principles of law, including the rules of construction and interpretation. It is not permissible to set aside or ignore them in trivial cases. The greater the moment of the question or matter involved, the greater the reason for strict adherence to law and observance of distinctions in the application of principles and precedents.
