United States, 1743 Chief Justice Marshall dealt definitively with the legal position of enemy property during wartime. onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.” 1741 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court thus, it must be regarded as a questionable rejection of the previous line of cases. Covert, 1740 however, Justice Black asserted in a plurality opinion that wherever the United States acts it must do so only “in accordance with all the limitations imposed by the Constitution. The question turns upon whether Congress has made the area “incorporated” or “unincorporated” territory. These conclusions follow not only from the usual necessities of war but also from the Court’s doctrine that the Constitution is not automatically applicable in all territories acquired by the United States. 1738 “It is not the civil law of the invaded country it is not the civil law of the conquering country it is military law-the law of war-and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy’s country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.” 1737 “What is the law which governs an army invading an enemy’s country?” the Court asked in Dow v. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President. Kahanamoku, 1736 the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare martial law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor’s order.Įnemy Country.-It has seemed reasonably clear that the Constitution does not follow the advancing troops into conquered territory. 1734 The entire Court rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation. 1733 The minority argued that the question was for Congress’s determination. The majority claimed this function for the courts and asserted that an area in which the civil courts were open and functioning, and in which there were no hostilities, does not qualify. The point of disagreement was over which department of the government had authority to say with finality what regions lie within the theater of military operations. Although unanimous in the result, the Court divided five-to-four on the ground of decision. This view was assumed by all members of the Court in Ex parte Milligan, 1732 in which the trial by a military commission of a civilian charged with disloyalty in a part of the country remote from the theater of military operations was held invalid. Theater of Military Operations.-Military law to the exclusion of constitutional limitations otherwise applicable is the rule in the areas in which military operations are taking place. To make Rules for the Government and Regulation of the land and naval Forces.Īnnotations Constitution and the Advance of the Flag To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. The Congress shall have power * * * To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
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