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“Martial Law” in America’s Founding Era

When the Founding patriots were placed under “the law martial” by British General Gage the episode triggered the War of Independence.

Constitutional Militia
By Constitutional Militia
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Last Updated on February 17, 2022 by Constitutional Militia

THE LAWFUL CHECK AGAINST “MARTIAL LAW” WERE THEN AND REMAIN TODAY “THE MILITIA OF THE SEVERAL STATES”

General Gage’s imposition of “the law martial” left the patriots but one alternative: “We are reduced to *** chusing  an unconditional submission to the tyranny of irritated ministers, or resistance by force.—The latter is our choice.”  —”The Declaration of Causes and Necessity of Taking Up Arms”, 6 July 1775.

Source: Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at  15.

“Martial Law” in America’s Founding Era

The first and most important step towards elucidating the true meaning of America’s foundational legal documents is “to review the background and environment of the period in which th[ose documents were] fashioned and adopted”,[1] “to place ourselves as nearly as possible in the condition of” the Americans of that era,[2] and “to recall the contemporary or then recent history of the controversies of the subject” that still “were fresh in the memories of those who achieved our independence and established our form of government”.[3] One must not, however, enter only the individual minds of the Framers of the Declaration, the original Constitution, and the Bill of Rights who drafted them, or the Founding Fathers who worked for their ratification, or others among the most prominent patriots of their time, but instead must search out the most probable consensus among all of the reasonably intelligent and informed Americans of personal integrity who supported independence and whom the Declaration singles out as “the good People of the[ ] Colonies”, whom the original Constitution identifies as WE THE PEOPLE”,[4] and to whom the Bill of Rights repeatedly refers to as “the people”,[5] the question then becomes: “How on the basis of their knowledge and experience would “the good People” in 1776, “WE THE PEOPLE” in 1788, and “the people” in 1791 have determined what the Declaration of Independence, the original Constitution, and then the Bill of Rights would have meant to them with respect to modern-day “martial governance”? To determine that it suffices to understand what those documents would have meant to Americans in that day with respect to the “martial law” with which they had become all to familiar.[6]

“Martial Law” was of concern not just to every American patriot of the Founding Era who was conversant with pre-constitutional Anglo-American law, history, and political philosophy, either. As even America’s Founding Fathers’ preeminent legal mentor William Blackstone himself had observed:

Sir William Blackstone, renowned author of the Commentaries on the Laws of England, was the Founding Fathers’ preeminent legal mentor. “At the time of the adoption of the Federal Constitution [the Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the Framers of the Constitution were familiar with it”[1] and considered it “the preeminent authority on English law”,[2] every legally literate American was also aware of the general rule for statutory construction which Blackstone taught. Blackstone himself was highly critical and deeply suspicious of “professional soldiers” as a means to enforce the law:

In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and it arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy.  In these no man should take up arms , but with a view to defend his country and it’s laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms [that is, England, Scotland, and Ireland] know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war ***.

To prevent the executive power from being able to oppress, *** it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people ***. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power , when such a one is necessary to be kept on foot, a body to distinct from the people.”[3]

Footnotes:

1.) Schick v. United States, 195 U.S. 65, 69 (1904). See, e.g., The Federalist No. 84 notes [1 and 2].

2.) Alden v. Maine, 527 U.S. 706, 715 (1999).

3.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 413-414. (emphasis supplied).

Sir William Blackstone was America’s Founding Fathers’ preeminent mentor on the pre-constitutional laws of England[1] In the late 1700s all those literate in the law were aware that no less an authority than Blackstone was highly critical and deeply suspicious of “martial law”:

WHEN the nation [that is, England] was engaged in war, more veteran troops and more regular discipline were esteemed to be necessary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is based upon no settled principles, but is entirely arbitrary in it’s decisions, is * * * in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land. * * * And it is laid down, that if a lieutenant * * * doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against magna carta. And the petition of right enacts * * * that no commission shall issue to proceed within this land, according to martial law.[2]

Footnotes:

1.) See Schick v. United States, 195 U.S. 65, 69 (1904), and Alden v. Maine, 527 U.S. 706, 715 (1999).

2.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 412. (emphasis supplied) (footnotes omitted). Blackstone was the preeminent mentor of America’s Founding Fathers on the pre-constitutional laws of England. See e.g., Schick v. United States, 195 U.S. 65, 69 (1904), and Alden v. Maine, 527 U.S. 706, 715 (1999).

Those who framed America’s foundational legal documents “had for a long time been absorbed in considering the arbitrary encroachments of the [British] crown on the liberty of the subject”.[1] If many and complex were the reasons for which patriotic Americans in pre-constitutional times developed very palpable political, legal, and even personal antipathies to “standing armies” and to the “martial law” soldiers enforced,[2] that they did so was patent to everyone. Time and again, patriots denounced “standing armies’ and “martial law” in terms even stronger than Blackstone had set to paper—and not simply as matters merely of principle, but as the direct results of the actual practices of “standing armies” and enforcement of “martial law” in the Colonies.

“The Declaration and Resolves of the First Continental Congress” (14 October 1774) echoed Blackstone’s aversion to “martial law” in its complaint that “the British parliament *** hath *** extended the jurisdiction of the courts of admiralty *** for the trial of causes merely arising within the body of the country”, and in its resolution that “the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law”.[3]

Footnotes:

1.) Ex parte Bain, 121 U.S. 1, 12 (1887).

2.) See, e.g., John Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution(Princeton, New Jersey: Princeton University Press, 1965), at 376-398.

3.) Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 1 and 5.

In its “Declaration of Causes and Necessity of Taking Up Arms” of 6 July 1775, the Continental Congress described in particular how British

“general [Thomas] Gage, who in the course of the last year had taken possession of the town of Boston, in the province of Massachusetts-Bay, and still occupied it [a]s ***a garrison, on the 19th day of April [1775] , sent out from that place a large detachment of his army, who made an unprovoked assault on the inhabitants *** at the town of Lexington , *** murdered eight of the inhabitants, and wounded many others. From thence the troops proceeded in a warlike array to the town of Concord, where they set upon another party of inhabitants *** killing several and wounding more, until compelled to retreat by the country people suddenly assembled to repel this true aggression. Hostilities, thus commenced by the British troops, have since been prosecuted by them without regard to faith or reputation.—The inhabitants of Boston being confined within that town by the general their governor, and having, in order to procure their dismission, entered into a treaty with him, it was stipulated that the said inhabitants having deposited their arms with their own magistrates, should have liberty to depart, taking with them their other effects. They accordingly delivered up their arms, but in open defiance of honor, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the governor ordered the arms *** to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire, to leave their most valuable effects behind.

***

The general, *** by a proclamation *** , after venting the grossest falsehoods and calumnies against the good people of these colonies, proceeds to declare them all, either by name or description, to be rebels and traitors, to supersede the course of the common law, and instead thereof to punish and order the use of the law martial.”[1]

Footnotes:

1.) Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 14-15 (emphasis supplied).

In its “Declaration of Causes and Necessity of Taking Up Arms” of 6 July 1775, the Continental Congress excoriated “[t]he legislature of Great Britain”, which,

“stimulated by an inordinate passion for power not only unjustifiable, but for which they know to be particularly reprobated by the very constitution of that kingdom, and desperate of success in any mode of contest , where regard should be had to truth, law, or right, have at length, deserting those, attempted to affect their cruel and impolitic purpose of enslaving those colonies by violence, and have thereby rendered it necessary for us to close with their last appeal from reason to arms.”[1]

The Declaration went on to detail how General Gage’s imposition of “the law martial” left the patriots but one alternative,

“We are reduced to chusing an unconditional submission to the tyranny of irritated ministers, or resistance by force.—The latter is our choice.—We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery.—Honour, justice, and humanity forbid us to tamely surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the incamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them.”[2]

Footnotes:

1.) Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 10.

2.) Id. at 15 (editors footnote omitted).

Thereafter, “[a]bhorrence of military rule” became “ingrained in our form of government”.[1] The Declaration of Independence went beyond Congress’s invocation of “resistance by force” to the assertion “That the[ ] United Colonies *** are Absolved from All Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” In explaining and justifying this course of action, far from applying, approving of, or acquiescing in anything akin to modern “martial governance”, or advancing any reason which might validate even the less stringent form of “martial law” known in its own day, the Declaration explicitly attacked

“[t]he history of the present King of Great Britain [a]s a history of repeated injuries and usurpations, all having the establishment of an absolute Tyranny over these States. To prove this, let the facts be submitted to a candid world—

*   *   *   *   *

He has kept among us, in times of peace, Standing Armies, without the consent of the legislatures.—He has affected to render the Military independent and superior to the Civil power.—He has combined with others to subject us to a jurisdiction foreign to or constitution, and unacknowledged by our laws; giving his Assent to their pretended Legislation:—For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the inhabitants of these States *** :—For depriving us in many cases , of the benefits of Trial by Jury:—For transporting us beyond Seas to be tried for pretended offenses * * * .—He has abdicated government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt out towns, and destroyed the lives of our people.—He is at this time transporting large Armies of foreign Mercenaries to compleat the the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation. *** A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”[2]

In this litany of the most egregious aspects of “martial law”, arguably the worse is that “[h]e has affected to render the Military independent of and superior to the Civil power”—for if that can be done, then all the rest (and even more) will inevitably follow , inasmuch as no one will have any legal recourse independent of the executors of “martial law” themselves against whatever enormities they may choose to commit.[3]

Footnotes:

1.) Documents Illustrative of the Formation of the Union of the American States, House Document No. 398, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 15 (editors footnote omitted).

2.) The importance of this indictment was emphasized in Reid v. Covert, 354 U.S. 1, 29 (1957) (opinion of Black, J., announcing the judgement of the court), and in Duncan v. Kahanamoku, 327 U.S. 304, 320 (ooinion of Black, J., for the Court), 325 (Murphy, J., concurring) (1946).

3.) By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 90.

The Founding Patriots preeminent legal mentor, Sir William Blackstone, taught that  “martial law *** is built upon no settled principles, but is entirely arbitrary in it’s decisions”, and “is *** in truth and reality no law, but something indulged, rather than allowed as law” [7]

As the Framers of America’s foundational documents were well aware, “To prevent the executive power from being able to oppress, *** it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people ***. Nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power , when such a one is necessary to be kept on foot, a body to distinct from the people.”[8]

“Martial law” was discountenanced in pre-constitutional Anglo-American legal tradition. When the Founding patriots were placed under “the law martial” by British General Gage the episode triggered the War of Independence. The Constitution subsequently incorporated the Militia structure, then in existence at all times for over 150 years, as the permanent oversight and enforcement of laws by the PEOPLE themselves—properly organized, armed, and trained as State government institutions. Constitutional State Militia are not “revolutionaries” antagonistic to the government, but are permanent State government institutions, thoroughly civilian in character, sanctioned by the original Constitution and reinforced as “necessary” in the Second Amendment.

1.) Everson v. Board of Education, 330 U.S. 1, 8 (1947), Accord, e.g., Pollock v. Farmer’s Loan & Trust Company, 157 U.S. 429, 558, (1895); Maxwell v. Dow, 176 U.S. 581, 602 (1900); Grosjean v. American Press Company, 297 U.S. 233, 245-249 (1936).

2.) Ex Parte Bain, 121 U.S. 1, 12 (1887). Accord, e.g. South Carolina v. United States, 199 U.S. 437, 450 (1905).

3.) Boyd v. United States, 116 U.S. 616, 624-625 (1886).

4.) U.S. Const. preamble.

5.) U.S. Const. amends. I, II, IV, IX, and X. Undoubtedly, most of “the Owner[s]”, the “person[s]”, and “the accused” whom the Bill of Rights set out to protect  were part of “the people” at that time, too. See U.S. Const. amends. III, V, and VI.

6.) By Tyranny Out of Necessity: The Bastardy of Martial Law, by Dr. Edwin Vieira, Jr., Bookmasters Inc., Ashland, Ohio (2014), page 84.

7.) William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 412. Blackstone was the preeminent mentor of America’s Founding Fathers on the pre-constitutional  laws of England. See, e.g., Schick v. United States, 195 U.S. 65, 69 (1904); and Alden v. Maine, 527 U.S. 706, 715 (1999).

8.) Id. Also see The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1541, Chapter Forty Seven entitled, Unless “the Militia of the several States” are revitalized in the immediate future, America will devolve into a National para-military police state dominated by a “standing army” and a “military-industrial complex”.

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