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The following article was written for the CRIMSON by Zacharlah Chafee Jr., professor of law.


In the discussion yesterday of the validity of Governor Quinn's proolamalion, it was stated that, although martial law seriously restricts liberty, the Executive must be able to declare it in order to handle emergencies which cannot be taken care of in the courts.

These emergency powers of the President and State Governors are kept within bounds by our constitutions. The founders had a strong dislike for martial law. They had become only too familiar with it at the hands of the British troops.

Consequently, the Rhode Island Constitution (Article 1, section 18) says: "The military shall be held in strict subordination to the civil authority. And the law martial shall be used and exercised in such cases only as occasion shall necessarily require."

Although the United States Constitution contains no such express limitation on martial law, the general provision, "No person shall . . . be deprived of life, liberty, or property, without due process of law", was held by the United States Supreme Court in the great case of Ex-Parto Milligan to make it, impossible for an earlier Governor of Rhode Island (General Burnside) to establish martial law, even during the Civil War, in a region (Indiana) which was not invaded by the enemy but completely free from disorder and in which the civil courts were quietly sitting.

These constitutional provisions allow a state governor a wide range of discretion, first, in deciding that the emergency exists which justifies martial law, and second in choosing the means to enforce order.

Thus Chief Justice Hughes said five years ago (287 U. S. at 399): "The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to made immediate decisions, the power itself would be useless."

Consequently, state and federal courts have been very reluctant to upset declarations of martial law by state governors Judges, wisely recognize that the particular decisions about emergencies must usually be left to the Executive who wields the sword, without any control or advice from sedentary scholars on the benches.

But there are limits. This wide discretion of a governor to meet crises cannot be made the excuse for the subjection of American citizens to military rule, when there is no emergency. For example, there are probably more gangsters per thousand people in Chicago than in Narragansett Park, but the governor of Illinois can not properly put Chicago under martial law tomorrow. Martial law would otherwise be an easy route to dictatorship.

Chief Justice Hughes goes on to say "It does not follow from the fact that the Executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts otherwise available, is conclusively supported by mere executive flat.

The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." He then quotes Chief Justicee Taney, "It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified."

Both sides of the issue were admirably stated by Mr. Justice Holmes in connection with the establishment of martial law during the great 1904 strike of the United Mine Workers in Colorado (212 U. S. at 85): "No doubt there are cases where the expert on the sport may be called upon to justify his conduct later in court, notwithstanding the fact that he had gole command at the time and acted to the best of his knowledge.

That is the position of the captain of a ship. But, even in that case, great weight is given to his determination, and the matter is to be judged on the facts as they appeared then, and not merely in the light of the event."

So far as I know, there is no precedent for the power of a governor to establish martial law in times of peace when there has been no rioting, no great disaster like a fire, flood, or earthquake, and no acts of violence except a few of the kind that are ordinarily handled without difficulty by prosecutions for assault and battery.

Indeed, the United States Supreme Court, in the case where Chief Justice Hughes was quoted above, unanimously denied the power of the Governor of Texas to establish martial law in an oil field for the purpose of carrying out a conservation policy entrusted by the Texas legislature to an administrative body resembling the Rhode Island Racing Commission, when the governor thought that the orders of the Texas commission were not sufficiently vigorous and also feared that those orders would be upset by the courts.

Therefore, if the proclamation of martial law by Governor Quinn ever gets before a state or federal court for review, it will be necessary for the Governor to convince this court that an emergency really existed in Narragansett Park with which the courts of Rhode Island could not cope.

Is there any such state of terrorism in, and about Narragansett Park resembling that which was present in the mining districts of Colorado and Pennsylvania, any such disorganization of life as overwhelmed the Ohio Valley last spring?

Hundreds of motorists speed without molestation along a by-pass of U. S. Route 1 right across the territory in insurrection and within a few yards of the grandstand. While races are taking place, thousands of unarmed men and women throng into the park, none of them apparently frightened by the prospect of meeting the things and public enemies of whom the Governor speaks.

As for the threat of assassination, the Governor will have to make it plain that he cannot like President Roosevelt raly upon secret service men to protect him against such a danger.

My casual glances at Narragansett Park as an occasional spectator recall the Court's description of the Texas oil field in the case just mentioned: "Not only was there never any actual riot, tumult, or insurrection, which would create a state of war . . . , but . . . , if all of the (threatened) conditions had come to pass, they would have resulted merely in breaches of the peace to be suppressed by the militia as a civil force, and not at all in a condition constituting, or even remotely resembling, a state of war."

In short, it is not enough for the Governor to say that there is an insurrection at Narragansett Park. He must satisfy the judges, if he ever gets before them, that there was an insurrection.

Very likely Narragansett Park is a center of demoralization in the life of Rhode Island, but cannot this be met by a repeal of the statute creating legalized gambring? The court will ask whether the thugs of which the Governor complains were much more humerous at this track than at all race-tracks. It will ask whether the disorders feared by the Governor could not have been easily prevented by a court injunction stopping the track as a public nuisance.

Apparently the only substantial force that has occurred at Narragansett is the force exerted by the soldiers sent in by Governor Quinn. Apparently the only war in Rhode Island is the war of words between the pent-house and the State House. If there has been no more disorder and violence at this race-track than what Boston newspapers have reported, then the odds against the legality of the Governor's action are longer odds than these wagered on any horse that ever ran at Narragansett Park.

But how can the validity of Governor Quinn's martial law predlamation come before any court for review? This final question presented by the race-track controversy must be deferred until tomorrow for consideration

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