Remedies For The Present

REMEDIES FOR THE PRESENT

Judge Noah W. Cheever Gives His Views

ON THE COAL STRIKE

Advocates Declaration of Martial Law in Pennsylvania and Placing of Mines in Hands of Army

Some time ago in a newspaper article I suggested that the president in some lawful way cause martial law to be declared and established in the regions of Pennsylvania. It was also suggested that the president, when martial law is established, place General Wood, of Cuban fame, or some other competent general, with a sufficient military force, in charge of the coal mines of Pennsylvania and also of the railroads leading from the coal mines to the lakes and the seaboard. Have the officers of the army employ the coal miners at reasonable wages to work the mines, supply the people with coal and render an account to the railroad companies and mine owners for the use of the mines and railroads.

We must first determine what martial law is. The American Encyclopedia under this title speaks of it in part as follows:

¨Martial law, says Blackstone, is, in fact, no law at all. Smith, in his ´English Republic,' says: ´Martial law is the law of war, that depends on the just but arbitrary power and pleasure of the king. For, though he doth not make any laws by common consent in parliament, yet in time of war, by reason of the necessity of it, to guard against dangers that often arise, he useth absolute power; so that his word is law.´ However, opposed to other authorities this expresses what is distinctly meant both in England and in this country by martial law. When in time of extreme peril to the state, either from without or from within, the general safety cannot betrusted to the ordinary administration, or the public welfare demands the adoption and the execution of extraordinary measures, it may become necessary to declare the existence of martial law. This is, indeed, no law at all in its ordinary sense; it is in fact the abrogation of it. That which is done under martial law has not an immediate constitutional or legislative sanction, as the military or the statute law has. It proceeds directly from the military power, which has not become supreme. The supreme court of the United States has held that a state legislature may proclaim its existence whenever the public safety demands it; and the constitution, by implication, at least, also permits its proclamation by that clause which provides that the privileges of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, it is essential to the general welfare. The right to judge whether the exigency has arisen belongs, it seems, exclusively to congress. So in England martial law and its incidents, the suspension of the writ of habeas corpus, requires the authority of parliamentary acts to give them a constitutional existence. The Supreme court of the United States also held in Milligan´s case (4 Wallace, 2) that martial law could not be permitted, even during the existence of a civil war, to displace the ordinary administration of law in a state not invaded and not engaged in rebellion, and where the courts were open and in the proper and unobstructed exercise of their functions; and that the guaranty of jury trial in the constitution would make void all trials and sentences by military tribunals in such states of citizens not in military or naval service. And neither the president, nor congress, nor the judiciary, it was held, could take from the citizen the benefit of such guaranty under the circumstances stated.¨

Judge Thomas M. Cooley, whose writings are leading authority upon all constitutional questions, in his edition of Blackstone´s commentaries, Vol. 1, Book 1, page 411, note 5, speaks in part as follows in regard to martial law:

¨In the United States the individual states discipline and officer the militia, but congress may provide therefor, and also for calling them forth to execute the laws of the union, suppress insurrections and repel invasions. Const. Art. 1, Sec. 8. When thus called forth the president is commander-in-chief: Art. 2, Sec. 2; and congress may provide for their government. Art. 1, Sec. 8. By the act of Feb. 28, 1795, the president was empowered to call forth the militia to repel invasion, or, in imminent danger there of it put down insurrections or enforce the laws against obstructions or combinations. 1 Statute at Large, 424. Under this statute it belongs to the president exclusively to determine when the contingency has arisen which makes the calling forth of the militia necessary. Martin v. Mott, 12 Wheat, 29.

¨Military law is defined as being that military rule and authority which exests intime of war, and is conferred by the laws of war in relation to the persons and things under and within the scope of active military operations in carrying on the war, and which extinguishes or suspends civil rights, and the remedies founded upon them, for the time being, so far as may appear to be necessary in order to the full accomplishments of the purpose of the war. It is the application of military government - the government for force - to persons and property within the scope of it, according to the laws and usages of war, to the exclusion of the municipal government in all respects where the latter would impair the efficiency of military law or military action. Benet, Military Law, 14. And see 1 Kent, 341, note; 2 H. B1. 98, per Lord Loughborough.

¨The occasions to consider the extent and force of martial law have happily not been numerous in America, but it may be useful to refer to the most noted of them. The case of the declaration of the martial law by Gen. Jackson at New Orleans, at the time of the attempt upon that city by the British forces in 1814-15, and the legal proceedings which grew out of it, will be remembered by all readers of American history, but the correctness, respectively, of the conduct of the general, and that of a judge who imposed a fine upon him for contempt of court, never received and more authoritative examination than that which it had congress at the time the fine was refunded in 1842. See 2 Benton;s Thirty Years´ View, 599. It is settled in the United States that the legislature of a state may declare martial law throughout the state whenever in their opinion it may be necessary to thwart the purposes of those who are attempting, in an irregular manner, to revolutionize the state government, and that the military officers are exempt from the civil responsibility for enforcing the declaration. 

¨It is perfectly lawful to employ soldiers to preserve the peace at home; but this should be done with great caution, and not without an absolute necessity. ´Magistrates,´ said Lord Chancellor Hardwicke, ´have a power to call any subject to their assistance to preserve the peace and execute the process of the law; and why not soldiers as well as other men? Our soldiers are our fellow-citizens. They do not cease to be so by putting on a red coat and carrying a musket.´ The military act, on such occasions, not qua military, but simply in aid of and in obedience to the civil power, which ´calls them in.´ To quote again Lord Chancellor Hardwicke, ´as armed citizens, often saving the effusion of innocent blood and preserving the dominion of the law.´¨

The foregoing quotations from Judge Cooley, etc., show clearly the law upon these subjects. There are three feasible methods of solving this very difficult problem. First, the condemnation of the title and ownership of any coal mine or mines in the United States, by the United States, to hold and operate the same for public use and benefit of the people, as provided in the very complete and parctical statute drafted by Mr. Fred A. Baker Esq., of the Detroit, bar, and published in the Detroit dailies Oct. 4, 1902.

Secondly, let congress remove all tariff from all kinds of coal.

Thirdly, let congress authorize the president to declare and establish martial law in the coal fields of Pennsylvania, and authorize him to place the anthracite coal mines of Pennsylvania under control of the army of the United States, and also the railroads connecting these mines with the lake and Atlantic seaboard. Put General Wood of the Cuban fame or some equally able officer in charge of these mines supported by a sufficient military force to carry out his orders and let him employ men enough to work the mines thoroughly, and supply the people with coal. The details of accounting to the owners of the mines and railroads could by easily arranged as we suggested above.

The first remedy suggested above rests upon the opinion of Mr. Fred A. Baker, who is one of the ablest of the constitutional lawyers in our state. Undoubtedly his proposed statutory provision would be constitutional and could be enforced, and such a statute ought to be enacted by congress. I think, however, under the present pressing demands for immediate supplies of coal, that this measure would be too slow to be effective. There would undoubtedly be a long debate in congress before it would be passed, and then a long drawn-out litigation before it would be effectively established. As our United States supreme court is several years behind in its docket it might be three or four years before this would become an effective statute.

In regard to the third and last measure proposed, namely, that congress should authorize the president to declare and establish martial law in the coal regions of Pennsylvania. I think congress would be more likely to grant this measure. It is purely a measure for temporary relief in overwhelming exigencies. I think the present public sentiment throughout the country, the great necessity for prompt action, would enduce congress to speedily pass such an act. The declarations of the coal barons in their late discussion before the president, would indicate a condition of affairs that would warrant a declaration of martial law. This of course is an extreme measure, but such measures are warranted when the lives and general welfare of the people demand them. Certainly the very life and existence of the people of this nation is paramount to any constitutions or laws. The constitutions and laws of this nation are but the servants of the people, and were made and enacted to support and maintain the lives of the citizens and for their general welfare. They certainly have not been established and maintained for the purpose of supporting men and measures that will destroy the lves and welfare of the people of the nation.

Very respectfully,

NOAH W. CHEEVER.

Ann Arbor, Michi., Oct. 6, 1902.