•  
  •  

Home > Journals > Michigan Law Review > MLR > Volume 5 > Issue 1 (1906)

 

Abstract

I. To. United States Courts. 2. To State Courts. 3. To Military Courts. General Principles of Amenability-Courts and text writers not unfrequently enunciate as a general principle that military authority is subordinate to civil law. Accepted literally, the broad statement can be sustained by neither law nor precedent. The federal constitution provides for three kinds of military jurisdiction: (a) That known as Military Law, designed to be exercised both in time of peace and war and acquiring its authenticity from the acts of Congress prescribing army regulations and the rules and articles of war, as well as from the established customs and usages which are inseparable from the military state. This branch of military jurisdiction, having application to military persons only, may very properly be said to be subordinate to civil law; for it neither supersedes nor is it in derogation of the civil law but is in harmony with it. (b) Military Government, which may exist in time of foreign war, without the boundaries of the United States, or during rebellion and civil war, within districts occupied by persons hostile to the government and known as belligerents. It supersedes, to a degree which may be deemed necessary, the local laws, has application to all persons within its jurisdiction and is enforced by a military commander under direction of the President with the express or implied sanction of Congress. The third 'branch may be distinguished as (c) Martial Law, proper. Arbitrary in nature, unmerciful in execution and of almost unlimited power, it is called into action only when less harsh measures are no longer adequate to secure public safety and private rights. In the words of Lord Wellington, it is "the will of the commanding officer, expressed in time of war, within the jurisdiction of his geographical military department," and is subject to limitation and enlargement, only by the orders of his supreme executive chief. Under our constitution, it can exist only when Congress so provides or temporarily, by order of the President when the action of Congress cannot be invoked and the emergency is one of imminent and, justifying peril. Martial law is the creature of dire necessity, and so far from being subordinate to or compatible with the civil law, it is for the time being the one authority, binding indiscriminately upon all persons within the jurisdiction in which it has been established. These distinctions must ever be borne in mind or confusion will follow any reflection upon the subject.

Download

Share

COinS