A QUESTION OF VITAL INTEREST TO
A Leading Colorado Jurist Shows Up
the Illegal Use Made of the Militia
In Times of Strikes—General Prin-
ciples Applicable Everywhere.
Anent the employment of state militia for the purpose of intimidating the striking mill men at Colorado City, Colo., Judge Frank W. Owens, one of the state's leading jurists, furnished the Denver Post a lengthy opinion, from which the following is taken:
"In spite of the fact that it has latterly become the fashion throughout the country to mobilize the militia upon the slightest excuse, there is perhaps no subject as vital to the liberties of the people, is so little understood, as the duties and powers of the militia when 'called out' to aid the civil authority to suppress violence or support the law. The lack of knowledge on the subject does not seem to decrease, either on the part of the people or of the press, notwithstanding the growing frequency of the use of the militia.
"The terms 'military law,' 'martial law' and 'calling out the militia' are much confounded and seem to be generally regarded as synonymous, when actually they are not at all so and have widely different meanings.
"Consideration of the meaning of each of these terms will aid in clearing up much misunderstanding. To that end careful study of the definitions given below is requested.
"Military law consists of the regulations for the government of persons employed in the army or in the militia. It is the specific law governing the army as a separate community.
"And. Law Dic, Am. and Eng. Encyc. Law.
"Military law cannot and does not affect and does not govern or concern any person in the military or naval service.
"Ex parte Milligan, 4 Wall. (U.S.) 123. Luther versus Borden, 7 How. p. 60.
"The term 'martial law' is commonly applied to every use of troops or militia for any purpose and is perhaps used more indiscriminately and with less understanding of its meaning than any other phrase in as general use. Its correct definition, therefore, is much to be desired.
"As defined in And. Law Dic., p. 663, and the many authorities there cited, martial law is the law of military necessity in actual presence of war administered by the general of the army. It is arbitrary and supersedes all existing civil laws. The commander is the legislator, judge and executioner. There may or may not be a hearing at his will. It is built upon no settled principles and is entirely arbitrary in its decisions; in reality it is no law, but something indulged rather than allowed as law.
"Calling the militia out is merely the act of the civil officer invested by law with the authority to call the militia to his aid to enforce and not supersede the law. The act does not confer on the militia collectively or individually any greater power than the citizens always possess to suppress lawlessness and crime, and it never authorizes the suspension or violation of any law.
"Does or can 'martial law' exist in Colorado under our constitution?
"Article 2, section 22. of the constitution of the state of Colorado provides that the military shall always be in strict subordination to the civil power.' There nothing in the federal constitution, nor in that of the state of Colorado, which qualifies this provision in any manner.
"Article 4, section 5. of the constitution says: The governor shall be commander in chief of the military forces of the state. He shall have power to call out the militia to execute the laws.'
"Let the phraseology be noted. The militia are not to be called out to carry out the ideas or whims of any officer, but to execute the laws—that is, the civil laws.
"In common speech the militia are usually considered that body of our citizens who have been organized into troops and have subjected themselves to military organization. This is erroneous. The constitution of the state says, 'The militia of the state shall consist of all ablebodied male residents between the ages of eighteen and forty-five years.'
"The militia, therefore, consists of every resident in the state answering the above description, whether organised into military bodies or not. In other words, the governor has power to call out the citizens of the state as a grand posse comitatus, in the same manner that the sheriff has power to summon to his aid the citizens of a county to execute the laws, and when so called out, either as organized or unorganized militia, such citizens may act as an organization in the manner provided by law and in that manner only. Their power is limited to what, under the law, peace officers may do.
"The militia have no other or different powers than peace officers by law have under the same circumstances, except they may act as an organized body. An act done by military order or by order of the governor or other officer is no defense to the private soldier obeying the order, unless the order itself be conformable to law. The common soldier has a most hazardous duty to perform, being bound to obey his superior and being also bound to answer at his peril, before the law, for any acts not warranted by the law.—15 Am. and Eng. Encyc. Law, 426, and cases cited.
"No greater error can be indulged in than to suppose that a citizen, by taking upon himself the additional character of a soldier, puts off any of the rights and duties of a citizen. The soldier is still a citizen and as such is always amenable to the civil authority. 15 Am. and Eng. Encyc. Law, 428 13 Alb. Law. Jour., 87.
"The same idea was emphasized by Lord Tyndall, chief justice of England, When he said: 'The law acknowledged no distinction between a soldier and a private individual. The soldier is still a citizen, living under the same obligations and invested with only the same authority preserve the peace as any other citizen.'
"Soldiers owe no duty of boundless submission to their officers, and, although as soldiers they are not a reasoning body, as citizens they are preeminently such. It is their duty to 'reason why,' and if by failing to do so they violate the law they must pay the penalty.
"In general, it may be said that the powers of the militia, like those of a sheriff's posse, are limited by what under the laws peace officers may do. For their own protection those wielding that power should inform themselves of its limits and always remember that their duties are preventive and not punitive. They must always bear in mind the fundamental principles laid down in the constitution for the securing of personal liberty and that while acting as militia they act as a branch of the peace or police department of the state and with no greater powers. Unless armed with the process of a court they can only act in the presence of an offense.
"Not content to rest upon the common law which exalts the civil before military power, our constitution, articles 11 and 22, emphatically and affirmatively provides, 'That the military shall always be in strict subordination to the civil power.' Not some times, but always. Here is a plain declaration that the military power shall never be used or operated under any law but the ordinary civil law. In other words, under our constitution martial law does not and cannot exist. In order to invoke it it will not do to give the name rebellion or insurrection or war to every infraction or threatened Infraction of the laws by a mob or combination, however large. We cannot alter things by changing their names.
"By way of illustration let us examine the situation in El Paso county. Is there an insurrection there? Is there a threatened invasion? Is there any attempt to overthrow the government? The courts of the state are open there, with two judges resident in the district. The county and justice courts are open. Not a court has refused to issue warrants for the arrest of any persons. No charge has been made that officials are in collusion with law breakers. The sheriff has been able to arrest every person for whom he has received a warrant. Grand and petit jurors are subject to summons. No outrages have been committed of which the public is aware. Not a dollar's worth of property has been injured, not a person maltreated except as shown by affidavits secretly prepared and presented. An active, ambitious press is ready and eager to publish every authenticated act of wrong by either side, and but few trivial matters have been recorded.
"The question must arise as to the necessity of the presence of the militia. Are they to aid a civil authority which has not been defied or is it that the citizens of the county may be made subject to the whims or arbitrary commands of military officials who are themselves only citizens trimmed with gold braid to distinguish them as other police are distinguished by their uniforms? Are the courts in El Paso county to be ignored and is martial law to take the place of the civil law in defiance of the constitution? Is it proposed to set up a tyranny and despotism within a republic in which life, liberty and property are to be at the mercy of a sergeant's squad or a drum-head court martial? The proposition is so absurd the mind refuses to entertain it.
"To summarize, martial law cannot be declared in Colorado. It is abhorrent to our institutions and has no place in them. The loose talk concerning it should give way to the sober second thought derived from a clear understanding of the principles of our government. The first instruction the members of the organized militia should receive should be that they are citizens first and soldiers next; that whether as citizens or soldiers they are and must always be in strict subordination to the civil power and responsible to the civil and criminal law for their acts; that in active service they are nothing more than people, with not even as extensive powers as municipal police that the order of a superior in excess of his lawful authority will not and cannot protect them from the consequences of the law should they violate it; that their uniform represents the dignity of the state and that the wearing of it calls for more courtesy toward fellow citizens than they ordinarily exercise; that they have no right to arrest without warrant unless an offense be committed in their presence; that they have no right to invade private premises for any purpose unless armed with a search warrant or In aid of civil process; that they cannot dispossess persons lawfully in possession of buildings or premises without violating the law and rendering themselves liable in damages and perhaps criminally; that as the right to keep and bear arms (not concealed on the person) is guaranteed by the constitution to every citizen they have not the right to take or confiscate weapons nor to search for them without warrants; that, in short, they must not be misled by the dazzling uniforms of staff colonels or deluded by the pomp and panoply of war with which latter day vanity surrounds their duty into believing they are for a moment above or beyond the law which they are called on to uphold and vindicate."