Academic journal article Northwestern University Law Review

Originalism and a Forgotten Conflict over Martial Law

Academic journal article Northwestern University Law Review

Originalism and a Forgotten Conflict over Martial Law

Article excerpt


Ex parte Milligan made famous the notion that civilians should be tried by ordinary courts when those remained open, even when hostilities were ongoing.1 There has been much discussion of this claim, from the perspective of the Civil War context2 as well as from the vantage point of original meaning.3 It has implications for a number of interpretive debates about the inclusion-whether explicit or implicit-of emergency powers within the U.S. Constitution and the meaning of the Suspension Clause.4 This Symposium Essay takes a basically unknown controversy in 1750s New York as a window into the complexity of the relationship between habeas corpus and martial law in the colonial context as well as the divergent visions of common law already emerging between British imperial forces and local American interpreters.5 Through demonstrating the contested quality of common law both independently and as modified by English statutes within the British settler empire of eighteenth-century North America, this episode highlights the significance of the imperial setting for understanding the original meaning of the Constitution.

In the late 1750s, Abraham Yates, who later became renowned as an Antifederalist, was serving as a sheriff in upstate New York.6 He was appointed by Acting Governor James De Lancey and seemed to be holding office without particular controversy until the 1756 arrival of John Campbell, the Scottish fourth earl of Loudoun, as commander of the British forces in America.7 Lord Loudoun (John Campbell)-who had enjoyed an extensive military career in Flanders as well as parts of Britain8-was viewed as a less than successful leader.9 He was, nevertheless, appointed to coordinate efforts in America against the French and the Indians during the Seven Y ears War.10 Loudoun's prolific correspondence upon arriving in America demonstrates the skepticism with which he was met in many quarters and his varying efforts to overcome the reservations of people and legislatures in several colonies.11

In 1757, Loudoun's forces took up residence in Albany, where Yates was serving. Conflict quickly ensued when Loudoun's troops broke into the jail, over which Yates presided, to imprison a local farmer accused of harassing members of the military.12 Yates refused to relinquish the keys to the jail and got the courts in New York City to issue a writ of habeas corpus, at which point he sent the accused there to be heard.13 These acts of resistance ignited a firestorm. They incurred the immediate wrath of Lord Loudoun, who contended that his authority superseded the force of civilian law, claiming that he had frequently heard British Lord Chancellor Hardwicke declare that, when a military occupation proved necessary, military power trumped civilian control.14 On the other side, and in subsequent correspondence with Governor De Lancey and others, Yates adduced a string of authorities from English law to support the notion that habeas corpus could not be suspended under these circumstances.15

This conflict is a particularly fruitful one to study in order to gain access to the disparate perspectives of civil and military officers, and British and colonial personnel. Yates himself kept a detailed journal/copybook from 1754 to 1758,16 and Lord Loudoun's stint in America yielded more than one hundred boxes of materials, including memorandum books and many letters.17 The temporal scope of the New York Public Library's Yates collection makes it possible to follow the ideas generated during the 1750s through Yates's stance in the period of constitutional formation.

The episode detailed here represents the crystallization of a conflict over martial law and its status within colonial jurisdictions. It emerged from a largely forgotten moment in the genealogy of martial law. Writing in the aftermath of the American Civil War, Francis Lieber and his son, Norman Lieber, penned a treatise on martial law that was only recently rediscovered and has now been edited by Professors John Witt and Will Smiley. …

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