Court-Martial Jurisdiction and the Constitution: An Historical and Textual Analysis
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Authors
Hoffman, Gary L.
Issue Date
1988
Volume
21
Issue
Type
Journal Article
Language
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Abstract
INTRODUCTION|Warfare has been an element of American life since its colonization. From its inception as a sovereign nation, the United States has been dependent upon a mix of military professionals and citizen soldiers (or militia) to provide for the common defense. There is, however, an engrained hostility toward things military, an attitude which largely stems from a fear of standing armies which emerged in seventeenth century England. This hostility is no more apparent than when the subject of military law (or martial law as it was called in the seventeenth and eighteenth centuries) is discussed. As Blackstone wrote When the nation was engaged in war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. And therefore at such times particular provisions have been usually made 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 built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, 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...
Description
Citation
21 Creighton L. Rev. 43 (1987-1988)
Publisher
Creighton University School of Law