§ 293. As is elsewhere more fully shown, the same offence may be in one aspect cognizable by one sovereign, and in another aspect by another sovereign.1 On the same principle an offence may in one aspect be cognizable by the State in its sovereignty, Sovereign first prose- and in others by a municipal corporation. Where a parcuting the offence ab- ticular offence as an entirety is cognizable by two sovereigns; the first sovereign that takes possession of the defendant, and undertakes the prosecution of the offence, absorbs the case, as a general rule, which action, if bona fide and complete, is a bar to the action of the other sovereign.3 But as to offe.ces sorbs it. man-of-war, for planning and fabri- Field, J., giving the opinion of the cating false vouchers to cheat the Supreme Court of the United States, crown (which planning and fabrication were done upon the high seas), has been held in England triable in Middlesex, upon proof there of the receipt by the commissioners of the navy of the false vouchers transmitted thither by one of the conspirators through the medium of the post, and the application there of a third person, a holder of one of such vouchers (a bill of exchange), for payment, which he there received. R. v. Brisac, 4 East, 164, 1804; see infra, & 1397. thus speaks: "The judgment and conviction in the criminal court should have been set aside and the indictment quashed for want of jurisdiction. Their effect was to defeat an act done under the authority of the United States, by a tribunal of officers appointed under the law enacted for the government and regulation of the army in time of war, and whilst that army was in a hostile and conquered State. The judgment of that tribunal at the time it was rendered, as well as the person of the defendant, were beyond the control of the State of Tennessee. The authority of the United States was then sovereign, and their jurisdiction exclusive. Nothing which has since occurred has diminished that authority or impaired the efficacy of that judgment. In thus holding, we do not call in question the correctness of the general doctrine asserted by the Supreme Court of Tennessee, that the same act may, in some instances, be an offence against two governments, and that the transgressor may be held liable to punishment by both when the punishment is of such a character that it can be twice inflicted, or by either of the two governments if the 3 Whart. Cr. Pl. & Pr. 8 441-442, 453; Taintor v. Taylor, 16 Wall. 367, 1872; State v. Horn, 70 Mo. 466, 1879. See Sizemore v. State, 3 Head, 26, 1859. In Coleman v. State, 97 U. S. 309, 1878, it was held that a prior conviction by a United States military court in Tennessee, in 1865, of a soldier in the federal army, of murder, with a sentence that he should be hung, which sentence, however, was never executed, divested the State court of jurisdiction. Of a subse- punishment, from its nature, can be quent prosecution in the State court, only once suffered. It may well be partly against one and partly against another sovereign, if the defendant is convicted and sentenced under one sovereign, the better opinion, as we have seen, is, that both have jurisdiction; and in such case the punishment inflicted under the first prosecution is to be taken into account in adjusting the sentence under the second prosecution.1 7. Courts Martial and Military Courts. army; military imposed law is law § 294. The subject of courts martial and military courts falls more properly, so far as it concerns their practical rela- Martial tions, in another volume.' The positions there taken law is law may be summed up as follows: (1) Martial law is law for an imposed on an army as such, governing it and its antagonists under arms, and is enforced by courts of officers under the authority of the commander-in-chief. It is not inconsistent with this principle that spies are tried by subjected court martial. A spy puts himself more or less completely in the position of a member of the army within whose lines he is penetrating; and he cannot, therefore, dispute the jurisdiction of the court to which he has subjected himself. Military law, on the other hand, is the law imposed by the commander-in army on a country. that the satisfaction which the trans- 453. Supra, 289; U. S. v. Amy, 14 gressor makes for the violated law of Md. 152 n. ; U. S. v. Cashiel, 1 Hughes, the United States is no atonement for 552, 1873; Com. v. Tenney, 97 Mass. the violated law of Tennessee. But 50, 1867; Jett v. Com., 18 Gratt. 953, here there is no case presented for 1862. the application of the doctrine. The "Conviction and punishment of an laws of Tennessee with regard to of- accused in one sovereignty is no bar fences and their punishment, which to his conviction and punishment in were allowed to remain in force dur- another, in which the offence was ing its military occupation, did not originally committed." McAllister, apply to the defendant, as he was at J., Phillips v. People, 55 Ill. 433, 1870; the time a soldier in the army of the citing State v. Brown, 1 Hayw. 116, United States, and subject to the ar- 1814; U. S. v. Amy, ut supra; Com. ticles of war." In James's Case, 5 v. Andrews, 2 Mass. 14, 1807; Com. Crim. Law Mag. 216, it was held by the v. Green, 17 Mass. 540-7, 1820. See U.S. Dist. Ct. for the West. Dist. of Whart. Cr. Pl. & Pr. ut supra. In Missouri, that a prisoner in the cus- Marshall v. State, 6 Nebr. 120, 1877, tody of his bondsmen on a State it was intimated that when the penalty charge, cannot be taken from such inflicted was in full satisfaction for custody by federal process, or for the whole offence, the second proseother kinds of offence against the cution might be barred. federal government. 2 Whart. Cr. Pl. & Pr. 2 439, 979, 1 Whart. Cr. Pl. & Pr. 28 441, 442, 997. chief of an army on a province which he has subjugated. While it is in force it is supreme, not only in military, but in civil affairs, so far as concerns non-belligerents. A military governor, for instance, does not interfere with the affairs of the army. These are governed by the commander-in-chief through his proper military machinery. The commander-in-chief, on the other hand, does not, after a military governor is appointed, interfere in the affairs of non-belligerents in the subject province. Courts martial are constructed under fixed principles of selection of officers of suitable rank assisted by a judge advocate. Military courts are selected in any way the military commander of the province may determine, and may consist, more or less entirely, of civilians learned in the law. Courts martial are conducted in subordination to martial law, as an international system. Military courts are conducted in subordination to such a system of jurisprudence as the policy of the occupying forces prescribes, incorporating as much of the civil law of the conquered province as may be most convenient. Martial law excludes police control of civilians except so far as they interfere in military affairs. With the police control of civilians, military law is chiefly concerned. Courts martial are permanent, and run in parallel lines with civil courts; are not only consistent with, but essential to constitutional and liberal government; and are subject, so far as their right to imprison and punish is concerned, to the jurisdiction of the judiciary of the land.1 Military law for the time being absorbs the local civil law and deposes the local judiciary, except so far as the military governor may allot to them authority. Martial law is permanent, cosmopolitan, and administered by courts special to each case. Military law is special, provincial, limited in duration to the period of military occupancy, yet usually administered while it lasts by a permanent court, hearing all cases of litigation that arise.2 Such is the primary meaning of martial law, as distinguished to the law of the land as pronounced by the Supreme Court of the United States, which, in all federal matters, involving the control of the federal army, is supreme. See In re Davison, 21 Fed. Rep. 618, 1884. 1 The King's Bench has always assumed this position in England (e.g., in Governor Wall's Case); and in this country a similar supremacy has been maintained by the federal courts. It is no answer to this position, that the action of courts in granting writs of habeas corpus in reference to persons note; Whart. Com. Am. Law, §§ 37, under martial control has been held 579. inoperative. This is in subordination 2 See Whart. Cr. Pl. & Pr. § 979, from military law. The term martial law, however, is used in a secondary sense, to denote the law imposed by the supreme authority of the country for the preservation of order in periods of insurrection, or other great public emergency.1 a bar. § 295. (2) The judgment of a military court, having de facto authority in a province under military control, is a bar Judgments to furt her prosecutions for the same offence in civil tribu- of may be nals in the same country. Whether the judgments of courts martial are a bar depends upon the question whether by the local applicatory civil law such courts have jurisdiction.3 38. 'See Coleman v. State, 97 U. S. 309, 1878, cited supra, ¿ 293; State v. Hibdom, 23 Fed. Rep. 795, 1885. Whart. Cr. Pl. & Pr. 28 435, 439. 1 See Whart. Com. Am. Law, ?? 37, 283; that they may defend on ground of necessity, or superior order, see supra, 95, 283; infra, 310; that seizure by them of goods is not larceny, see infra, & 890. The New York Penal Code of 1882, does not by its own exceptions apply to any power conferred by law on military authorities to punish offenders. That military and naval officers are subject to the law of the land, see infra, ? 431. See cases in Whart. Cr. Pl. & Pr. 439. On the topic of the text see Benet on Military Law; De Hart, Military Law; Finlason on Martial Law; Poland's Military Dig. 3 That belligerents, when acting without authority of law, are subjected to penal discipline, see infra, VOL. I.-21 321 |