c. In connection with these two instances, the question naturally arises as to how it is possible that martial law could thus exist and be exercised in those places where the courts were able to function and where the State and also the United States governmental administrations were in operation. The answer is that it could not, but the fact had not been established at that time. The decision in the Milligan case was not promulgated until a later date, 1867.

SECTION II

Employment of Federal Troops in Martial Law Situations

What is meant by martial law situations

How martial law situations may be recognized and what in gen

eral may be done under them

How this affects the preparation of plans

Nature of the problem

Local laws

Local civil officials

Local civil courts

Martial law courts

Plan of the commander

Staff administration

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11. WHAT IS MEANT BY MARTIAL LAW SITUATIONS.—a. In Chapter IV, we considered principally the suppression of internal disorders in the manner provided for in the Constitution of the United States and the federal statutes written in pursuance of it, and we learned that the methods therein provided will probably be sufficient for the suppression of most of the disorders that are likely to arise in this country.

b. The present chapter takes up the last class of disturbances which it will be necessary for us to consider in connection with the present study-those for the suppression of which neither the Constitution nor any federal law makes adequate provision.

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c. Reference is made in the preceding chapter to certain cases where federal troops may be ordered out notwithstanding that there is no constitutional or statutory provision authorizing it, as where the President orders them out to protect government property, or where they are ordered out by a subordinate commander without reference to the President in case of a sudden emergency which is so serious and urgent as not to admit of the delay that would be incident to following the prescribed procedure. While it is true that the authority for so ordering them out is the law of necessity or martial law, yet the troops after they arrive at the scene of the disturbance would seldom operate under a martial law situation. They will confine themselves to the purposes for which they were ordered out, such as the protection of property, etc., and the case would be rare indeed where they would be justified in exceeding the limitations that would have been imposed upon them by law had they been ordered out by the President under the statute appropriate to the particular case or one analogous to it.

d. Our study for this chapter does not concern itself so much with the authority for ordering out the troops as it does with determining when, after they are ordered out, they would be operating under a martial law situation. The only way to determine this is by examining the situation itself. As heretofore stated, a martial law situation is one in which the municipal laws cannot be enforced and it is impossible for the civil courts to function for a period of time. Whether there was or was not statutory authority for ordering the troops out in the first place, obviously can have nothing whatever to do with determining this question.

12. How MARTIAL LAW SITUATIONS MAY BE RECOGNIZED AND WHAT IN GENERAL MAY BE DONE UNDER THEM. -a. We are here concerned with those things which the Constitution and statutes of the United States do not authorize the military to do, yet which, if it does them, necessity and not law will justify its action. Since the occasions for such employment of the military are fortunately rare, little of judicial precedent is found to guide us. In fact there is but one federal decision directly in point (ex parte Mili

gan, 4 Wall. 141) and only one of the many questions which might arise was presented in that case. The question was whether the conviction of Milligan by a military commission in Indiana, in 1864, was legal, and it was decided in the negative. In its opinion rendering the decision, the Supreme Court of the United States said:

The

"Martial law cannot arise from a threatened invasion. necessity must be actual and present, the invasion real, such as effectively closes the courts and deposes the civil administration. * * * * 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 active 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 proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

b. The conclusion to be reached from this and other cases examined is that, under martial law situations, provost courts, military commissions, or other courts created by the military commander may, when and to the extent necessary to restore order, punish those guilty of acts, whether in disobedience of military orders or otherwise, which obstruct the military in its enforcement and maintenance of order. Such acts may be punished as offenses against the military regime, and they may or may not be prohibited by the civil law; but if offenses against the civil laws are to be tried and punished as such, their trial should await the restoration of civil authority to the exercise of its functions. One of the cardinal principles of martial law, that it shall be no severer in degree than necessity requires, is thus observed, and the military does not displace the civil authority, but leaves it unimpaired.

13. HOW THIS AFFECTS THE PREPARATION OF PLANS. -It is clear from the foregoing that the plans to be prepared for the administration of martial law must take into con

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sideration many additional factors not involved in handling the ordinary cases of internal disorders. The fact that the local laws cannot be enforced and that it is impossible for the civil courts to function means that some sort of a governmental machinery must be supplied for the area and that this machinery must be administered, or at least directed, by the occupying military force until the regular civil governmental machinery is again able to function. It will be necessary, therefore, to examine the nature of the problem involved and determine what sort of governmental machinery may and should be supplied before we can proceed intelligently to the preparation of the necessary plans.

14. NATURE OF THE PROBLEM.-Martial law will always be administered on home territory. The task of planning for the kind of local government that is to be administered, and the task of administering it, will therefore be much easier and in many respects simpler than is usually the case with military government, for the reason that the latter is usually administered on foreign territory and has to do with foreign inhabitants, strange laws, and customs with which the occupying forces are often unfamiliar. In the case of martial law, both the inhabitants and the members of the occupying military force usually understand each other, speak the same language, and have the same general customs. Both will be familiar with the governmental system to be set up and administered, for it is simply a case of reestablishing, as soon as may be, the system that previously existed.

15. LOCAL LAWS.-No changes will be made in the local laws as such, but the military commander may issue such instructions in the form of proclamations or orders as he may deem necessary. These may be at variance with the local laws, if this cannot well be avoided, but should conform to them as closely as the circumstances of the particular case will permit.

16. LOCAL CIVIL OFFICIALS. The local civil officials should be retained or reinstated to the fullest extent permitted by the military situation. The military commander has the full power to remove local civil officials for cause,

and to appoint others to fill their places, and he may appoint either military men or civilians, as he deems best. The wisest course would seem to be always, if possible, to appoint experienced or competent civilians to such positions rather than military officers who are inexperienced in civil administration. Not only will this usually insure more efficient administration, but it will leave the military officers free to perform their normal functions except as may be necessary for them to act in a supervisory capacity in relation to the civil administrators, and will moreover facilitate the transition to the normal state of affairs when the martial law situation comes to an end.

17. LOCAL CIVIL COURTS.-a. Here we come to the great difference between martial law and military government situations. In the case of military government, the military commander may use the local civil courts for the trial of civilians. In the case of martial law, he may not utilize the local civil courts at all, for the simple reason that the moment they are able to function, the martial law situation has come to an end. He should seek to reestablish them at the earliest possible moment, but he may not administer them after they are reestablished.

b. In the McDonald case (143 Pac. 954), the Supreme Court of Montana said:

"It may be granted that courts which are prevented by insurrection from executing their process are not open in contemplation of the law. To open them is a part of the duty devolved upon the military. It was conceded at bar that some of the courts of Silver Bow county are in operation, though it was insisted to be only such as are permitted by the military authorities, the others being closed by their order. No such cloture can be recognized."

The same court said in the same case:

"We have somewhere met with the argument that, because the insurrection may be prolonged, the summary trial of offenders is preferable to their indefinite detention. This is not even an argument from necessity, but from convenience."

c. It will be noted that the foregoing is quoted, not from the opinion of a federal court, but from the decision of the Supreme Court of Montana. It is nevertheless of