The right of law, even as against the military, has been anticipated in an early chapter; the right to try an officer, or even a soldier obeying orders, in the ordinary tribunals, for homicide, or for ordinary trespass, as when, in the Dorr rebellion in Rhode Island, a company of militia invaded a woman’s house.[1] The constitutional principle against the quartering of soldiers upon private dwellings, and the limitations to the military power caused by the strict confinement of the use of the army to cases of invasion or insurrection, have been added by American constitutions.  But most important of all is the supremacy of the common law; the grudging permission of military law even to the army themselves only by a temporary vote; for in England, the Mutiny Act must be passed annually, and in the United States, appropriations for the army and navy may not last over two years.  It is these statutes alone that make possible the very government of the army, the enforcement of the contract of enlistment, and the condign punishment of deserters.

[Footnote 1:  Martin v.  Mott, 12 Wheaton, 19.]

For example, let us remember the Boston Massacre.  Ten years before the Revolution, some turbulent men, mostly negroes, started a riot against British soldiers on what is now State Street (then King Street), and under the orders of the commanding officer the soldiers fired, and two or three men were killed.  Yet although the colonies were already under military occupation, and their courts and legislatures more than unpopular with the home government, these British soldiers were tried for manslaughter and murder, not in England, but in the ordinary common-law courts of the Colony of Massachusetts.  James Otis defended them and they were acquitted.  The fact that a monument to Crispus Attocks, the negro, now stands on Boston Common, and that ten or twelve years later the British flag was expelled from Boston to seek refuge in New York, does not modify the significance of the incident.  Some years since in a Pennsylvania strike a small company of militia, being attacked by a mob, were ordered to fire.  They did so, and killed one of the striking rioters.  It was found out which private had fired the fatal shot; he was indicted and tried for murder; and it was ruled that the order of the commanding officer was no defence.

These principles, we should be reminded, are fundamental; in our own country in time of peace, or even in time of war, except in hostile territory, there is no such thing as martial law; and no such thing as military law, except for the army itself, and then only by the sufferance of a biennial vote, which vote also limits the duration of existence of the regular army; besides which, all our State constitutions and the Declaration of Independence have a general provision against standing armies.  The proclamations of military officers, of mayors of cities, or even State governors, declaring martial law, or suspending the writ of habeas corpus,