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Unconstitutional Claims of Military Authority

Unconstitutional Claims of Military Authority

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Henry Winthrop Ballantine
Journal of the American Institute of Criminal Law and Criminology, Vol. 5, No. 5. (Jan., 1915),

It is a widespread superstition among military men, and among
many other well informed persons, that there is some mysterious and
transcendant force in a declaration of martial law. The idea seems to be growing that it is the prerogative and function of the military to substitute itself for all civil authority, and that while it is in control the constitutions, courts and laws may be suspended and set aside.
Henry Winthrop Ballantine
Journal of the American Institute of Criminal Law and Criminology, Vol. 5, No. 5. (Jan., 1915),

It is a widespread superstition among military men, and among
many other well informed persons, that there is some mysterious and
transcendant force in a declaration of martial law. The idea seems to be growing that it is the prerogative and function of the military to substitute itself for all civil authority, and that while it is in control the constitutions, courts and laws may be suspended and set aside.

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Published by: webworker on Apr 05, 2008
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Unconstitutional Claims of Military Authority
Henry Winthrop Ballantine
 Journal of the American Institute of Criminal Law and Criminology
, Vol. 5, No. 5. (Jan., 1915),pp. 718-743.
 Journal of the American Institute of Criminal Law and Criminology
is currently published by Northwestern University.Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtainedprior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content inthe JSTOR archive only for your personal, non-commercial use.Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained athttp://www.jstor.org/journals/nwu.html.Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers,and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community takeadvantage of advances in technology. For more information regarding JSTOR, please contact support@jstor.org.http://www.jstor.orgSat Jul 21 00:44:58 2007
 
UNCONSTITUTIONAL CLAIMS
OF
MILIThRY AUTHORITY.'The United States remains externally at peace in the midst of aworld war, yet within all is not peace. Industrial strife attendedwith violence and bloodshed has recently given rise to several occa-sions for the prolonged intervention of the military, notably
in
Colo-rado, Montana and 'CJTest Virginia. The strike of the miners
in
Colo-rado, lasting over twelve months, has attracted the attention
of
thewhole country by its bitterness and distressing tragedies. Idaho andPennsylvania have seen similar troubles, and to a less degree, Ohio.Michigan, New Jersey and ilZassachusetts. Peace must, of course, bemaintained at all hazards, but certain new and extraordinary claimsof arbitrary military authority have been made and acted upon inseveral of these industrial conflicts, towhich careful study and atten-tion ought to be directed.
It
is a widespread superstition among military men, and amongmany other well informed persons, that there is some mysterious andtranscendant force in a declaration of martial law. The idea seemsto be growing that it is the prerogative and function of the militaryto substitute itself for all civil authority, and that while it is in controlthe constitutions, courts and laws may be suspended and set aside.3
At
the time of the great fire which followed the earthquake ofApril
18,
1906,
at San Francisco, the federal troops were called outby General Funston.
A
proclamation was issued early on the firstday of the fire, which announced that:"The federal troops, the members of the police force, and allspecial police officers have been authorized to kill any and all personsfound engaged in looting, or in the commission of any other crime."Here me have the assumption of the power of life and death overthe citizen.Further illustrations of the assertion of arbitrary power by fed-eral as well as state military authorities are not far to seek. Recently,in the Colorado strike General Chase,
of
the Colorado NationalGuard, claimed the right to arrest mithoi~twarrant
any
one at
any
'This article is based upon
a
paper read at the first annual meeting of theAmerican Society of Military Law,
a
branch of the American Institnte of Crim-inal Law and Crirninoloay. Washington.
D. C..
October 19. 1911.2Professor of Law. University of Wisconsin: Secretary American Society ofMilitary Law.3See the present writer. ''hlilitary Dictatorship in California and \Vest Vir-ginia,"
I
Cnlifornia Law Review,
413: also
E.
M.
Cullen. "Decline of PersonalLiberty in America,"
48
Am.
Law Rev.
345.
718
 
UNCONSTITUTIONALCLAIMS
place in the state during military occupation.Many men were soarrested and held in jail upwards of fifty days against whom no specificaccusation of crime
was
or could be brought, on the vague plea of"military necessity." Private houses were searched for arms withoutany search warrant. Such highhanded measures naturally mused thedeepest resentment. (See John
T.
Fitch, Lam
&
Order in Colorado,
23
Ths
Burvey
241
(Dec.
5,
1914).
The newspapers report that anembargo was put on commerce in arms and the transportation of armsand ammunition by any of the railroads or express companies in thestate of Colorado for any purposes except for the federal troops. Byorder of the commander of the federal forces it
is
said that
all
saloonsin certain districts were closed and that fire arms were outlawed andordered to be surrendered under penalty of confiscation. It
is
furtherreported that the state and later the federal officers
in
charge inColorado refused to permit the opening of mines with the aid of strikebreakers or non-union men, brought into the district by the cial com-panies.One of the most extreme instances of the substitution of militaryforce for law arose in West Virginia during the years
1912
and
1913.
Industrial trouble of the gravest character had arisen between thecoal miners and coal operators of Paint Creek and Cabin Creek,
in
Kanawha county, West Virginia.
A
strike was declared, and non-union labor was brought in to replace the strikers. The coal operatorsemployed "guards"
to
protect their laborers and theirproper@. Thestrikers were armed, and machine guns were installed by the operators.September
2, 1912,
Governor Glasscock purported to proclaim martiallaw within
a
prescribed zone, and appointed a military commissionof six officers of the national guard
to
try
all
offenders, except mem-bers of the national guard, and a court martial to try the latter. Thefirst military commission so established is said to have tried and sen-tenced over one hundred citizens not engaged
in
the military serviceof the state, and military commissions later established tried and sen-tenced scores of other citizens not so engaged. The general orden forthe guidance of the West Virginia military commission,
in
expressterms, established
it
as a substitute for the civil courts. The Governorand military acted under the claim that all the provisions of the con-stitutions, both state and national, and all the laws and statutes of thestate were suspended and for the time inoperative by reason
of
theexistence of
martial
law.
The proceedings which occurred stirred thelawyers of the Senate to an official inquiry. In the investigation
con-
ducted by a Senate Committee of Inquiry, Capt. Morgan, one of
the

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