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$ 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. On the same principle an offence may in Sovereign

one aspect be cognizable by the State in its sovereignty, first prose- and in others by a municipal corporation. Where a paroffence ab- ticular offence as an entirety is cognizable by two soversorbs it.

eigns; 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. But as to offe.ces


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 thus speaks: “The judgment and were done upon the high seas), has conviction in the criminal court should been held in England triable in Mid- have been set aside and the indictdlesex, upon proof there of the re- ment quashed for want of jurisdiction. ceipt by the commissioners of the Their effect was to defeat an act done navy of the false vouchers trans- under the authority of the United mitted thither by one of the conspira- States, by a tribunal of officers aptors through the medium of the post, pointed under the law enacted for the and the application there of a third government and regulation of the person, a holder of one of such vouch- army in time of war, and whilst that ers (a bill of exchange), for payment, army was in a hostile and conquered which he there received. R. v. Brisac, State. The judgment of that tribunal 4 East, 164, 1804; see infra, & 1397. at the time it was rendered, as well as

Supra, 82 266, 284; Whart. Cr. Pl. the person of the defendant, were & Pr. 88 441, 453; U. S. v. Marigold, beyond the control of the State of 9 How. 560, 1850; Coleman v. State, Tennessee. The authority of the infra; State v. Bergman, 6 Oreg. 341, United States was then sovereign, 1875; State v. Augustine, 23 La. An. and their jurisdiction exclusive. 119, 1871.

Nothing which has since occurred 2 Whart. Cr. Pl. & Pr. & 440. has diminished that authority or im

3 Whart. Cr. Pl. & Pr. 28 441-442, paired the efficacy of that judgment. 453; Taintor v. Taylor, 16 Wall. 367, In thus holding, we do not call in 1872; State v. Horn, 70 Mo. 466, 1879. question the correctness of the general See Sizemore v. State, 3 Head, 26, doctrine asserted by the Supreme 1859. In Coleman v. State, 97 U. S. Court of Tennessee, that the same 309, 1878, it was held that a prior act may, in some instances, be an conviction by a United States mili- offence against two governments, and tary court in Tennessee, in 1865, of a that the transgressor may be held soldier in the federal army, of murder, liable to punishment by both when with a sentence that he should be the punishment is of such a character hung, which sentence, however, was that it can be twice inflicted, or by never executed, divested the State either of the two governments if the 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.


law is law

It is not by the

army on a

7. Courts Martial and Military Courts. $ 294. The subject of courts martial and military courts falls more properly, so far as it concerns their practical relations, 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 antago- military nists under arms, and is enforced by courts of officers imposed 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-inthat 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,

as he was at J., Phillips v. People, 55 Il. 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.

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 V. S. Dist. Ct. for the West. Dist. of Whart. Cr. Pl. & Pr. ut supra. Missouri , that a prisoner in the cus- Marshall v.

State, 6 Nebr. 120, 1877, charge, cannot be taken from such inflicted was in full satisfaction for

apply to the defendant,

ticles of war.”


a State it was intimated that when the penalty other kinds of offence against the cution might be barred.

process, or for the whole offence, the second prose1 Whart. Cr. Pl. & Pr. %% 441, 442, 997.

2 Whart. Cr. Pl. & Pr. 38 439, 979,

tody of his bondsmen on

custody by federal

federal government.


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. 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.

Such is the primary meaning of martial law, as distinguished

1 The King's Bench has always as- to the law of the land as pronounced sumed this position in England (e.g., by the Supreme Court of the United in Governor Wall's Case); and in this States, which, in all federal matters, country a similar supremacy has been involving the control of the federal maintained by the federal courts. It army, is supreme. See In re Davison, is no answer to this position, that the 21 Fed. Rep. 618, 1884. action of courts in granting writs of ? See Whart. Cr. Pl. & Pr. 8 979, habeas corpus in reference to persons note; Whart. Com. Am. Law, 37, under martial control has been held 579. inoperative. This is in subordination


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.

§ 295. (2) The judgment of a military court, having de facto authority in a province under military control, is a bar

Judgments to further 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.

a bar.



See Whart. Com. Am. Law, 88 37, 8 283; that they may defend on ground

of necessity, or superior order, see See Coleman v. State, 97 U. S. 309, supra, 8% 95, 283; infra, & 310; that 1878, cited supra, %293 ; State v. Hib- seizure by them of goods is not lardom, 23 Fed. Rep. 795, 1885. Whart. ceny, see infra, & 890. The New York Cr. Pl. & Pr. 28 435, 439.

Penal Code of 1882, does not by its On the topic of the text see Benet own exceptions apply to any power on Military Law; De Hart, Military conferred by law on military authoriLaw; Finlason on Martial Law; Po- ties to punish offenders. That mililand's Military Dig.

tary and naval officers are subject to That belligerents, when acting the law of the land, see infra, & 431. without authority of law, are sub- See cases in Whart. Cr. Pl. & Pr. jected to penal discipline, see infra, & 439.


VOL. 1.-21


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