Duncan v. Kahanamoku

The petitioners in these cases were sentenced to prison by military tribunals in Hawaii. Both are civilians. The question before us is whether the military tribunals had power to do this. The United States District Court for Hawaii in habeas corpus proceedings held that the military tribunals had no such power and ordered that they be set free. The Circuit Court of Appeals reversed, and ordered that the petitioners be returned to prison. 9 Cir., 146 F.2d 576. Both cases thus involve the rights of individuals charged with crime and not connected with the armed forces to have their guilt or innocence determined in courts to law which provide established procedural safeguards, rather than by military tribunals which fail to afford many of these safeguards. Since these judicial safeguards are prized privileges of our system of government we granted certiorari. 324 U.S. 833, 65 S.Ct. 677.

The following events led to the military tribunals’ exercise of jurisdiction over the petitioners. On December 7, 1941, immediately following the surprise air attack by the Japanese on Pearl Harbor, the Governor of Hawaii by proclamation undertook to suspend the privilege of the writ of habeas corpus and to place the Territory under ‘martial law.’ Section 67 of the Hawaiian Organic Act, 31 Stat. 141, 48 U.S.C.A. § 532, ^[1] authorizes the Territorial Governor to take this action ‘in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it.’ His action was to remain in effect only ‘until communication can be had with the President and his decision thereon made known.’ The President approved the Governor’s action on December 9th. ^[2] The Governor’s proclamation also authorized and requested the Commanding General, ‘during * * * the emergency and until danger of invasion is removed, to exercise all the powers normally exercised’ by the Governor and by ‘the judicial officers and employees of the Territory.’

Pursuant to this authorization the Commanding General immediately proclaimed himself Military Governor and undertook the defense of the Territory and the maintenance of order. On December 8th, both civil and criminal courts were forbidden to summon jurors and witnesses and to try cases. The Commanding General established military tribunals to take the place of the courts. These were to try civilians charged with violating the laws of the United States and of the Territory, and rules, regulations, orders or policies of the Military Government. Rules of evidence and procedure of courts of law were not to control the military trials. In imposing penalties the military tribun ls were to be ‘guided by, but not limited to the penalties authorized by the court martial manual, the laws of the United States, the Territory of Hawaii, the District of Columbia, and the customs of war in like cases.’ The rule announced was simply that punishment was ‘to be commensurate with the offense committed’ and that the death penalty might be imposed ‘in appropriate cases.’ Thus the military authorities took over the government of Hawaii. They could and did, by simply promulgating orders, govern the day to day activities of civilians who lived, worked, or were merely passing through there. The military tribunals interpreted the very orders promulgated by the military authorities and proceeded to punish violators. The sentences imposed were not subject to direct appellate court review, since it had long been established that military tribunals are not part of our judicial system. Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589. The military undoubtedly assumed that its rule was not subject to any judicial control whatever, for by orders issued on August 25, 1943, it prohibited even accepting of a petition for writ of habeas corpus by a judge or judicial employee or the filing of such a petition by a prisoner or his attorney. Military tribunals could punish violators of these orders by fine, imprisonment or death.

White, the petitioner in No. 15, was a stockbroker in Honolulu. Neither he nor his business was connected with the armed forces. On August 20, 1942, more than eight months after the Pearl Harbor attack, the military police arrested him. The charge against him was embezzling stock belonging to another civilian in violation of Chapter 183 of the Revised Laws of Hawaii. Though by the time of White’s arrest the courts were permitted ‘as agents of the Military Governor’ to dispose of some non-jury civil cases, they were still forbidden to summon jurors and to exercise criminal jurisdiction. On August 22nd, White was brought before a military tribunal designated as a ‘Provost Court.’ The ‘Court’ orally informed him of the charge. He objected to the tribunal’s jurisdiction but the objection was overruled. He demanded to be tried by a jury. This request was denied. His attorney asked for additional time to prepare the case. This was refused. On August 25th he was tried and convicted. The tribunal sentenced him to five years imprisonment. Later the sentence was reduced to four years.

Duncan, the petitioner in No. 14, was a civilian shipfitter employed in the Navy Yard at Honolulu. On February 24th, 1944, more than two years and two months after the Pearl Harbor attack, he engaged in a brawl with two armed Marine sentries at the yard. He was arrested by the military authorities. By the time of his arrest the military had to some extent eased the stringency of military rule. Schools, bars and motion picture theatres had been reopened. Courts had been authorized to ‘exercise their normal functions.’ They were once more summoning jurors and witnesses and conducting criminal trials. There were important exceptions, however. One of these was that only military tribunals were to try ‘Criminal Prosecutions for violations of military orders.’ ^[3] As the record shows, these military orders still covered a wide range of day to day civilian conduct. Duncan was charged with violating one of these orders, paragraph 8.01, Title 8, of General Order No. 2, which prohibited assault on military or naval personnel with intent to resist or hinder them in the discharge of their duty. He was therefore, tried by a military tribunal rather than the Territorial Court, although the general laws of Hawaii made assault a crime. Revised L.H.1935, ch. 166. A conviction followed and Duncan was sentenced to six months imprisonment.

Both White and Duncan challenged the power of the military tribunals to try them by petitions for writs of habeas corpus filed in the District Court for Hawaii on March 14 and April 14, 1944, respectively. Their petitions urged both statutory and Constitutional grounds. The court issued orders to show cause. Returns to these orders contended that Hawaii had become part of an active theatre of war constantly threatened by invasion from without; that the writ of habeas corpus had therefore properly been suspended and martial law had validly been established in accordance with the provisions of the Organic Act; that consequently the District Court did not have jurisdiction to issue the writ; and that the trials of petitioners by military tribunals pursuant to orders by the Military Governor issued because of military necessity were valid. Each petitioner filed a traverse to the returns, which traverse challenged among other things the suspension of habeas corpus, the establishment of martial law and the validity of the Military Governor’s orders, asserting that such action could not be taken except when required by military necessity due to actual or threatened invasion, which even if it did exist on December 7, 1941, did not exist when the petitioners were tried; and that, whatever the necessity for martial law, there was no justification for trying them in military tribunals rather than the regular courts of law. The District Court, after separate trials found in each case, among other things, that the courts had always been able to function but for the military orders closing them, and that consequently there was no military necessity for the trial of petitioners by military tribunals rather than regular courts. ^[4] It accordingly held the trials void and ordered the release of the petitioners.

The Circuit Court of Appeals, assuming without deciding that the District Court had jurisdiction to entertain the petitions, held the military trials valid and reversed the ruling of the District Court, 9 Cir., 146 F.2d 576. It held that the military orders providing for military trials were fully authorized by Section 67 of the Organic Act and the Governor’s actions taken under it. The Court relied on that part of the section which as we have indicated authorizes the Governor with the approval of the President to proclaim ‘martial law’, whenever the public safety requires it. The Circuit Court thought that the term ‘martial law’ as used in the Act denotes among other things the establishment of a ‘total military government’ completely displacing or subordinating the regular courts, that the decision of the executive as to what the public safety requires must be sustained so long as that decision is based on reasonable grounds and that such reasonable grounds did exist.

In presenting its argument before this Court the government for reasons set out in the margin ^[5] abandons its contention as to the suspension of the writ of habeas corpus and advances the argument employed by the Circuit Court for sustaining the trials and convictions of the petitioners by military tribunals. The petitioners contend that ‘martial law’ as provided for by § 67 did not authorize the military to try and punish civilians such as petitioners and urge further that if such authority should be inferred from the Organic Act, it would be unconstitutional. We need decide the Constitutional question only if we agree with the government that Congress did authorize what was done here.

Did the Organic Act during the period of martial law give the armed forces power to supplant all civilian laws and to substitute military for judicial trials under the conditions that existed in Hawaii at the time these petitioners were tried? The relevant conditions, for our purposes, were the same when both petitioners were tried. The answer to the question depends on a correct interpretation of the Act. But we need not construe the Act, insofar as the power of the military might be used to meet other and different conditions and situations. The boundaries of the situation with reference to which we do interpret the scope of the Act can be more sharply defined by stating at this point some different conditions which either would or might conceivably have affected to a greater or lesser extent the scope of the authorized military power. We note first that at the time the alleged offenses were committed the dangers apprehended by the military were not sufficiently imminent to cause them to require civilians to evacuate the area or even to evacuate any of the buildings necessary to carry on the business of the courts. In fact, the buildings had long been open and actually in use for certain kinds of trials. Our question does not involve the well-established power of the military to exercise jurisdiction over members of the armed forces, ^[6] those directly connected with such forces, ^[7] or enemy belligerents, prisoners of war, or others charged with violating the laws of war. ^[8] We are not concerned with the recognized power of the military to try civilians in tribunals established as a part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function. ^[9] For Hawaii since annexation has been held by and loyal to the United States. Nor need we here consider the power of the military simply to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war. ^[10] And finally, there was no specialized effort of the military, here, to enforce orders which related only to military functions, such as, for illustration, curfew rules or blackouts. For these petitioners were tried before tribunals set up under a military program which took over all government and superseded all civil laws and courts. If the Organic Act, properly interpreted, did not give the armed forces this awesome power, both petitioners are entitled to their freedom.

In interpreting the Act we must first look to its language. Section 67 makes it plain that Congress did intend the Governor of Hawaii, with the approval of the President, to invoke military aid under certain circumstances. But Congress did not specifically state to what extent the army could be used or what power it could exercise. It certainly did not explicitly declare that the Governor in conjunction with the military could for days, months or years close all the courts and supplant them with military tribunals. Cf. Coleman v. Tennessee, 97 U.S. 509, 514, 24 L.Ed. 1118. If a power thus to obliterate the judicial system of Hawaii can be found at all in the Organic Act, it must be inferred from § 67’s provision for placing the Territory under ‘martial law.’ But the term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment. See United States v. Diekelman, 92 U.S. 520, 526, 23 L.Ed. 742. In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: ‘The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. * * * In this country it is still worse.’ 8 Op.Atty.Gen. 365, 367. What was true in 1857 remains true today. ^[11] The language of § 67 thus fails to define adequately the scope of the power given to the military and to show whether the Organic Act provides that courts of law be supplanted by military tribunals.

Since the Act’s language does not provide a satisfactory answer, we look to the legislative history for possible further aid in interpreting the term ‘martial law’ as used in the statute. The government contends that the legislative history shows that Congress intended to give the armed forces extraordinarily broad powers to try civilians before military tribunals. Its argument is as follows: That portion of the language of § 67 which prescribes the prerequisites to declaring martial law is identical with a part of the language of the original Constitution of Hawaii. Before Congress enacted the Organic Act the Supreme Court of Hawaii had construed that language as giving the Hawaiian President power to authorize military tribunals to try civilians charged with crime whenever the public safety required it. In re Kalanianaole, 10 Hawaii, 29. When Congress passed the Organic Act it simply enacted the applicable language of the Hawaiian Constitution and with it the interpretation of that language by the Hawaiian Supreme Court.

In disposing of this argument we wish to point out at the outset that even had Congress intended the decision in the Kalaniaole case to become part of the Organic Act, that case did not go so far as to authorize military trials of the petitioners for these reasons. There the defendants were insurrectionists taking part in the very uprising which the military were to suppress, while here the petitioners had no connection with any organized resistance to the armed forces or the established government. If, on the other hand, we should take the Kalanianaole case to authorize the complete supplanting of courts by military tribunals, we are certain that Congress did not wish to make that case part of the Organic Act. For that case did not merely uphold military trials of civilians but also held that courts were to interfere only when there was an obvious abuse of discretion which resulted in cruel and inhuman practices or the establishment of military rule for the personal gain of the President and the armed forces. But courts were not to review whether the President’s action, no matter how unjustifiable, was necessary for the public safety. As we shall indicate later, military trials of civilians charged with crime, especially when not made subject to judicial review, are so obviously contrary to our political traditions and our institution of jury trials in courts of law, that the tenuous circumstance offered by the government can hardly suffice to persuade us that Congress was willing to enact a Hawaiian Supreme Court decision permitting such a radical departure from our steadfast beliefs. ^[12]

Partly in order to meet this objection the government further contends that Congress in enacting the Kalanianaole case, not only authorized military trials of civilians in Hawaii, but also could and intended to provide that ‘martial law’ in Hawaii should not be limited by the United States Constitution or by established Constitutional practice. But when the Organic Act is read as a whole and in the light of its legislative history it becomes clear that Congress did not intend the Constitution to have a limited application to Hawaii. Along with § 67 Congress enacted § 5 of the Organic Act which provides ‘that the Constitution * * * shall have the same force and effect within the said Territory as elsewhere in the United States.’ 31 Stat. 141, 48 U.S.C.A. § 495. Even when Hawaii was first annexed Congress had provided that the Territory’s existing laws should remain in effect unless contrary to the Constitution. 30 Stat. 750. And the House Committee Report in explaining § 5 of the Organic Act stated: ‘Probably the same result would obtain without this provision under Section 1891, chapter 1, Title XXIII, of the Revised Statutes, but to prevent possible question, the section is inserted in the bill.’ ^[13] (Italics supplied). Congress thus expressed a strong desire to apply the Constitution without qualification.

It follows that civilians in Hawaii are entitled to the Constitutional guarantee of a fair trial to the same extent as those who live in any other part of our country. We are aware that conditions peculiar to Hawaii might imperatively demand extraordinarily speedy and effective measures in the event of actual or threatened invasion. But this also holds true for other parts of the United States. Extraordinary measures in Hawaii, however necessary, are not supportable on the mistaken premise that Hawaiian inhabitants are less entitled to Constitutional protection than others. For here Congress did not in the Organic Act exercise whatever power it might have had to limit the application of the Constitution. Cf. Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016. The people of Hawaii are therefore entitled to Constitutional protection to the same extent as the inhabitants of the 48 States. And Congress did not enact the Hawaiian Supreme Court’s decision in the Kalanianaole case and, thus, authorize the military trials of petitioners. Whatever power the Organic Act gave the Hawaiian military authorities, such power must therefore be construed in the same way as a grant of power to troops stationed in any one of the states.

Since both the language of the Organic Act and its legislative history fail to indicate that the scope of ‘martial law’ in Hawaii includes the supplanting of courts by military tribunals, we must look to other sources in order to interpret that term. We think the answer may be found in the birth, development and growth of our governmental institutions up to the time Congress passed the Organic Act. Have the principles and practices developed during the birth and growth of our political institutions been such as to persuade us that Congress intended that loyal civilians in loyal territory should have their daily conduct governed by military orders substituted for criminal laws, and that such civilians should be tried and punished by military tribunals? Let us examine what those principles and practices have been, with respect to the position of civilian government and the courts and compare that with the standing of military tribunals throughout our history.

People of many ages and countries have feared and unflinchingly opposed the kind of subordination of executive, legislative and judicial authorities to complete military rule which according to the government Congress has authorized here. In this country that fear has become part of our cultural and political institutions. The story of that development is well known and we see no need to retell it all. But we might mention a few pertinent incidents. As early as the 17th Century our British ancestors took political action against aggressive military rule. When James I and Charles I authorized martial law for purposes of speedily punishing all types of crimes committed by civilians the protest led to the historic Petition of Right ^[14] which in uncompromising terms objected to this arbitrary procedure and prayed that it be stopped and never repeated. ^[15] When later the American colonies declared their independence one of the grievances listed by Jefferson was that the King had endeavored to render the military superior to the civil power. The executive and military officials who later found it necessary to utilize the armed forces to keep order in a young and turbulent nation, did not lose sight of the philosophy embodied in the Petition of Right and the Declaration of Independence, t at existing civilian government and especially the courts were not to be interfered with by the exercise of military power. In 1787, the year in which the Constitution was formulated, the Governor of Massachusetts colony used the militia to cope with Shay’s rebellion. In his instructions to the Commander of the troops the Governor listed the ‘great objects’ of the mission. The troops were to ‘protect the judicial courts * * *’, ‘to assist the civil magistrates in executing the laws * * *’, and to ‘aid them in apprehending the disturbers of the public peace. * * *’ The Commander was to consider himself ‘constantly as under the direction of the civil officer, saving where any armed force shall appear and oppose * * * (his) * * * marching to execute these orders.’ ^[16] President Washington’s instructions to the Commander of the troops sent into Pennsylvania to suppress the Whiskey Rebellion of 1794 were to the same effect. The troops were to see to it that the laws were enforced and were to deliver the leaders of armed insurgents to the regular courts for trial. The President admonished the Commanding General ‘that the judge can not be controlled in his functions.’ ^[17] In the many instances of the use of troops to control the activities of civilians that followed, the troops were generally again employed merely to aid and not to supplant the civilian authorities. ^[18] The last noteworthy incident before the enactment of the Organic Act was the rioting that occurred in the Summer of 1892 at the Coeur-d’Alene mines of Shoshone County, Idaho. The President ordered the regular troops to report to the Governor for instructions and to support the civil authorities in preserving the peace. Later the State Auditor as agent of the Governor, and not the Commanding General, ordered the troops to detain citizens without trial and to aid the Auditor in doing all he thought necessary to stop the riot. ^[19] Once more, the military authorities did not undertake to supplant the courts and to establish military tribunals to try and punish ordinary civilian offenders. ^[20]

Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. Ex part Quirin, supra, 317 U.S. at page 19, 63 S.Ct. at page 6, 87 L.Ed. 3. Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people’s throughout our history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself. See Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. Legislatures and courts are not merely cherished American institutions; they are indispensable to our government.

Military tribunals have no such standing. For as this Court has said before: ‘* * * the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.’ Dow v. Johnson, 100 U.S. 158, 169, 25 L.Ed. 632. Congress prior to the time of the enactment of the Organic Act had only once authorized the supplanting of the courts by military tribunals. Legislation to that effect was enacted immediately after the South’s unsuccessful attempt to secede from the Union. Insofar as that legislation applied to the Southern States after the war was at an end it was challenged by a series of Presidential vetoes as vigorous as any in the country’s history. ^[21] And in order to prevent this Court from passing on the constitutionality of this legislation Congress found it necessary to curtail our appellate jurisdiction. ^[22] Indeed, prior to the Organic Act, the only time this Court had ever discussed the supplanting of courts by military tribunals in a situation other than that involving the establishment of a military government over recently occupied enemy territory, it had emphatically declared that ‘civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.’ Ex parte Milligan, 4 Wall. 2, 124, 125, 18 L.Ed. 281.

We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of ‘martial law’ it had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act. The phrase ‘martial law’ as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Yet the government seeks to justify the punishment of both White and Duncan on the ground of such supposed Congressional authorization. We hold that both petitioners are now entitled to be released from custody.

Reversed.

Notes

^1  ‘That the governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.’

^2  The District Court heard much evidence and from it found as follows on this subject: ‘By radio the Governor of Hawaii on December 7, 1941, notified the President of the United States simply that he had placed the Territory under martial law and suspended the writ. The President’s approval was requested and it was granted by radio on December 8, 1941. Not until 1943 was the text of the Governor’s December 7 proclamation furnished Washington officials, and it is still doubtful if it has yet been seen by the President.’

^3  In addition, § 3 of a Proclamation of February 8, 1943, which returned some power to the civil authorities, had reserved a right in the Military Governor to resume any or all of the powers returned to the civilian government. In approv ng this Proclamation the President had expressed his confidence that the Military would ‘refrain from exercising * * * authority over * * * normally civil functions’ and his hope that there would ‘be a further restoration of civil authority as and when the situation permits.’

^4  We do not set out the other grounds of challenge since under the view we take we do not reach them.

^5  The Government points out that since the privilege of the writ was restored and martial law terminated by Presidential roclamation on October 24, 1944, No. 2627, petitioners are entitled to their liberty if the military tribunals were without jurisdiction to try them. We therefore do not pass upon the validity of the order suspending the privilege of habeas corpus or the power of the military to detain persons under other circumstances and conditions.

^6  Wilkes v. Dinsman, 7 How. 89, 12 L.Ed. 618; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Martin v. Mott, 12 Wheat. 19, 6 L.Ed. 537; In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236.

^7  Ex parte Gerlach, D.C., 247 F. 616; Ex parte Falls, D.C., 251 F. 415; Ex parte Jochen, D.C., 257 F. 200; Hines v. Mikell, 4 Cir., 259 F. 28. See cases and statutes collected and discussed in Underhill, supra, 12 Cal.L.Rev. 81-98.

^8  Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; In the Matter of General Tomoyuki Yamashita, 327 U.S. 1, 66 S.Ct. 340. See 10 U.S.C. §§ 1553, 1554, 10 U.S.C.A. §§ 1553, 1554. See also cases and statutes collected and discussed in Underhill, supra, 12 Cal.L.Rev. 81-98.

^9  Cross v. Harrison, 16 How. 164, 14 L.Ed. 889; Leitensdorfer v. Webb, 20 How. 176, 15 L.Ed. 891; The Prize Cases, The Amy Warwick, 2 Black 635, 17 L.Ed. 459; In re Mrs. Alexander’s Cotton, 2 Wall. 404, 17 L.Ed. 915; Ford v. Surget, 97 U.S. 594, 604, 24 L.Ed. 1018; City of New Orleans v. Steamship Co., 20 Wall. 387, 393, 22 L.Ed. 354 Dow v. Johnson, 100 U.S. 158, 166, 25 L.Ed. 632; The Grapeshot, 9 Wall. 129, 19 L.Ed. 651; Mechanics’ & Traders’ Bank v. Union Bank, 22 Wall. 276, 22 L.Ed. 871. Nor is this a case where violators of military orders are to be tried by regular courts. Cf. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774.

^10  Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410; Ex parte Milligan, 4 Wall. 2, 125, 126, 18 L.Ed. 281; Luther v. Borden, 7 How. 1, 45, 46, 12 L.Ed. 581; see Sterling v. Constantin, 287 U.S. 378, 400, 53 S.Ct. 190, 196, 77 L.Ed. 375; Fairman, The Law of Martial Rule, Chicago 1943, 209-218.

^11  For discussions of the great contrast of views see the following writings: Fairman, supra, Ch. II; Wiener, A Practical Manual of Martial Law, Harrisburg 1940, Ch. 1; Military Aid to the Civil Power, Fort Leavenworth 1925, pp. 230-232; Underhill, Jurisdiction of Military Tribunals in the United States over Civilians, (1924) 12 Cal.L.Rev. 75, 163-178; Ballentine, Qualified Martial Law (1915) 14 Mich.L.Rev. 102, 203, 204; Max Radin, Martial Law and the State of Siege (1942) 30 Cal.L.Rev. 634.

^12  We point out in this connection that by Section 83 of the Organic Act Congress provided how juries should be constituted and provided for the drawing of grand juries and for unanimous jury verdicts in criminal cases. 31 Stat. 141, 157, 48 U.S.C.A. § 635.

^13  Government for the Territory of Hawaii, H.Rep.No.305, 56th Cong., 1st Sess., p. 10. In the House, Representative Knox, the Republican leader for the bill, stated: ‘This bill, in so many words extends the Constitution to Hawaii, so that there has not been practically a moment of time since the Hawaiian Islands were annexed to the United States that the Constitution has not been the standard by which all the laws of that country must be measured * * *. The decisions of the Supreme Court of the United States will be equally operative in Hawaii as in any portion of the United States as to any constitutional rights which he possesses.’ 33 Cong.R c. 3800 (1900). See the following decisions of this Court relating to the applicability of the Constitution to United States Territories. Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016; Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862; Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646. See also Frank, Ex Parte Milligan v. The Five Companies: Martial Law in Hawaii (1944) 44 Col.L.Rev. 639, 658-660.

^14  3 Chas. 1, c. 1.

^15  Hallam, Constitutional History, c. 3. See also discussions in dissent in Luther v. Borden, 7 How. 1, 48, 63, 12 L.Ed. 581; In re McDonald, 49 Mont. 454, 468, 143 P. 947, L.R.A.1915B, 988, Ann.Cas.1916A, 1166.

^16  Federal Aid in Domestic Disturbances, Senate Document No. 263, 67th Cong., 2d Sess., 10.

^17  Id. pp. 31, 32. See also on the same subject the dissent in Luther v. Borden, supra, 7 How. at pages 77-81, 12 L.Ed. 581.

^18  This appears from the facts related throughout Senate Document No. 263, 67th Cong., 2d Sess., supra.

After the passing of the Organic Act disturbances in the coal fields of West Virginia, a longshoremen’s strike in Galveston and a packers’ strike in Nebraska City, all led to criminal trials of civilians by military tribunals which were upheld by decisions of state and lower federal courts. State ex rel. Mays v. Brown, 71 W.Va. 519, 77 S.E. 243, 45 L.R.A., N.S., 996, Ann.Cas.1914C, 1; Ex parte Jones, 71 W.Va. 567, 77 S.E. 1029, 45 L.R.A.,N.S., 1030, Ann.Cas.1914C, 31; United States ex rel. McMasters v. Wolters, D.C., 268 F. 69; United States ex rel. Seymour v. Fischer, D.C., 280 F. 208. But cf. In re McDonald, supra, 49 Mont. 454, 143 P. 947, L.R.A.1915B, 988, Ann.Cas.1916A, 1166. All these cases rested on the ground that the governor’s determination of the existence of insurrection conclusively established that all the governor had done was legal. The basis of these decisions was definitely held erroneous in Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, where this Court said: ‘What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.’ 287 U.S. at page 401, 53 S.Ct. at page 196, 77 L.Ed. 375. As one commentator puts it this Court ‘has knocked out the prop’ on which these aforementioned cases rested. Wiener, A Practical Manual of Martial Law, 1940, p. 116.

^19  Senate Document No. 263, 67th Cong., 2d Sess., 190 ff.

^20  Even as late as 1937 when the War Department promulgated regulations concerning the employment of troops in aid of civil authorities, it was aware of this tradition. A.R. 500-50, 7e stated: ‘* * * Persons not normally subject to military law, taken into custody by the military forces incident to the use of troops contemplated by these regulations, should be turned over to the civil authorities. Punishment in such cases belongs to the courts of justice and not to the armed forces.’ But cf. A.R. 500-50, 8.

^21  In one of these vetoes President Johnson said: ‘The trials having their origin under this bill are to take place without the intervention of a jury and without any fixed rules of law or evidence. The rules on which offenses are to be ‘heard and determined’ by the numerous agents are such rules and regulations as the President, through the War Department, shall prescribe. No previous presentment is required nor any indictment charging the commission of a crime against the laws; but the trial must proceed on charges and specifications. The punishment will be, not what the law declares, but such as a court-martial may think proper; and from these ar itrary tribunals there lies no appeal, no writ of error to any of the courts in which the Constitution of the United States vests exclusively the judicial power of the country.’ Messages and Papers of the Presidents, Richardson, Vol. VI, 399. In another he said: ‘It is plain that the authority here given to the military officer amounts to absolute despotism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint, for it declares that he shall ‘punish or cause to be punished.’ Such a power has not been wielded by any monarch in England for more than five hundred years. * * * This broad principle limits all our functions and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than in another that which the Constitution says we shall not do at all.’ Id., pp. 502, 503.

^22  In re McCardle, 6 Wall. 318, 18 L.Ed. 816. See also Warren, The Supreme Court in United States History, Vol. 2, 464, 484.