Military law

“ Whilst martial law is the will of the commanders, and is only limited by the customs of war and the discretion of those who administer it, still, as far as practicable, the procedure of military law is followed, and a military court is held on the same lines as a court-martial. ”

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

“ From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. [5] By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. ”

“ In modern wars all civil and penal law continues to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provincial, or local character, 4cease under Martial Law, or continue only with the assistance or special approbation of the occupier or invader. ”

“ One of the purposes of the Fifth Amendment by this exception was to preserve the separation of military law from the requirements of civil law. The regulation of the armed forces by Congress under cl. 14 of § 8, Art. I, was to be left for legislative judgment that discipline might be maintained by speedy trial and punishment in accordance with military law. The reasons, set out in our discussion of Article I power to regulate the armed forces, need not be repeated here. We ask ourselves, 'What law is the basis of this prosecution?' The answer is the Military Code. ”

“ This "Law" or "Custom" is applicable to all persons and inhabitants not subject to "Military Law" residing within the foreign country or that portion of it occupied by the troops, and also within districts under British rule abroad, which, in consequence of riot or rebellion, are so declared to be subject to "Martial Law" by proclamation.
It will thus be seen that a commander of troops in time of war acts in two distinct capacities. First, he governs the troops by "Military Law" only ”

“ In times like the present when military matters are discussed by all classes of society, both by soldiers and civilians, the question of the law, by which discipline and law, not only among the troops, but also the civil population in the country they occupy are maintained, frequently arises, and the terms "Martial Law" and "Military Law" are often made use of as if they meant the same thing. ”

“ Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law; war is according to the good pleasure of those by whom it is carried on. Inter arma leges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. ”

“ Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not exclude from the class of persons subject to trial by military commissions 'any other person who by the law of war is subject to trial by military tribunals,' and who, under Article 12, may be tried by court martial, or under Article 15 by military commission. ”

“ In the event of war, the King can call out the Landsturm in accordance with the law. Article 36. The armed force (of the nation) can only be employed for the suppression of internal troubles, and the execution of the laws, in the cases and manner specified by statute, and on the requisition of the civil authorities. In the latter respect exceptions will have to be determined by law. Article 37. The military judiciary of the army is restricted to penal matters, and will be regulated by law. Provisions with regard to military discipline will remain the subject of special ordinances. ”

“ And in certain cases extend to civilians—as when [16] by proclamation any place shall be put under martial law; or when people follow a camp or army for the sale of merchandize, or serve in any civil capacity. It is ordained, that the articles of war shall be read in the circle of each regiment or company mustered once every month, or oftener if the commanding officer thinks proper. A recruit or soldier is not liable to be tried by a military tribunal, unless it can be proved that the articles of war have been duly read to him. ”

“ Among these, my impression is that a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government to extend certain rights of war, not only over his camp, but its environs and the near field of his military operations. ”

“ Martial law is military government at home. It is the government by a soldier of the citizens of his own country. If an American general should invade Canada, conquer it, and govern its inhabitants, that would be military government. ”

“ The present laws for the government of the military in England, also, do not exist in the vague and general form of martial law, but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny, and to preserve good discipline. ”

“ That unwritten code is Martial Law, as an addition to the written military code, prescribed by Congress in the rules and articles of war, and which unwritten code, all armies, in hostile countries, are forced to adopt — not only for their own safety, but for the protection of the unoffending inhabitants and their property, about the theaters of military operations, against injuries contrary to the laws of war. ”

“ Therefore, whilst martial law is declared illegal in time of peace, it is indirectly declared lawful in time of war and intestinal commotion when the courts are closed, or when there is no time for their cumbrous action. C. M. Clode, in Military Forces of the Crown, argues that the words of the Petition of Right and of the Military Act since the reign of Anne are plain in this respect “that ... the crown possesses the right of issuing commissions in war and rebellion.” ”

“ Reported cases, in great numbers and of high authority, support the proposition that a military officer, except when war is flagrant or when the courts are silenced by the exigencies of military rule or martial law, is subject to judicial process for the abuse of his authority or for wrongful acts done outside of his military jurisdiction. ”

“ The law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war. ”

“ Hence if a military commander, on the basis of his conception of military necessity, requires all civilians accused of crime to be tried summarily before martial law tribunals, the Bill of Rights must bow humbly to his judgment despite the unquestioned ability of the civil courts to exercise their criminal jurisdiction. ”

“ It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the Courts and Ministers of Justice, or by military force; by the coercion of the magistracy, or by the coercion of arms. The first kind can evidently apply only to men: ”

“ The law increasing and organizing the military establishment of the United States has been nearly carried into effect, and the Army has been extensively and usefully employed during the past season. ”

“ A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment [III.]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. ”

“ In that event, troops would certainly be out of place, and their use wholly illegal. If they are sent to aid the Courts and Marshals there must be Courts and Marshals to be aided. Without the exercise of these functions, which belong exclusively to the civil service, the laws cannot be executed in any event, no matter what may be the physical strength which the Government has at its command. Under such circumstances, to send a military force into any State, with orders to act against the people, would be simply making War upon them. ”

“ In the first place, international law declares that in a hostile section an army may save its rations and live off the country. To the large majority of the soldiers this would be sufficient warrant for them to appropriate from the enemy whatever they had a present liking for in the line of provisions. If all laws were based on absolute justice, the one quoted would settle the question finally, and leave nothing as an objection to foraging. ”

“ For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance ”

“ Soldiers regularly in the service have the license of the government to deprive men, the active enemies of their government, of their liberty and lives: their commission so to act is as perfect and as legal as that of a judge to adjudicate; but the soldier must act in obedience to the laws of war, as the judge must in obedience to the civil law. A civil judge must try criminals in the mode prescribed in the Constitution and the law; so, soldiers must kill or capture according to the laws of war. ”

“ Whatever rules have been adopted and practiced by the civilized nations of the world in war to soften its hardships and severity should be adopted and practiced by us in this war. That the laws of war authorize commanders to create and establish military commissions, courts or tribunals for the trial of offenders against the laws of war, whether they be open or secret participants in the hostilities, cannot be denied. ”