delivered the. Opinion of the Court.
In our country the army derives its existence from the civil government; and it can he controlled, increased, diminished, or abolished by that government, either in time of war or of peace. While it .exists it is as amenable to the government as is any other creature or authority emanating therefrom. “ The Congress shall have power, * ' * to constitute tribunals inferior to the Supreme. Court," * * to raise and support armies, * * to. provide and maintain a navy, * * to make rules for the government and regulation of the land and "naval forces.” (Constitution, Art. 1, sec. 8.) Martial law and military law are by no means the same thing. When'a military chieftain, in time of war, or in some . great emergency, proclaims martial law, he may limit’its t operation to a very narrow range, or he may make him- . self a dictator whose ' word is law, save in' so far as ’ international law and civilization require him to respect and enforce other laws. What martial law is or may -be depends so milch upon the discretion of the commander *148who proclaims it, that a description of its exercise in one instance, would rarely descrihe.it in any other.
Military law, however, is as clearly defined, a system of laws as are the statute and common -laws, or the statute and civil laws, prevailing in any State of the Union. Military law consists of the Articles of War enacted by Congress; the Regulations and Instructions sanctioned by the President; the orders of commanding officers; and certain usages or customs constituting the unwritten or common law of the army. These, taken together, are the law military of the land. This law applies only: to the army. Martial law has a wider scope, and applies as well to the inhabitants of the country or district over which it is -proclaimed. ’ Martial law has a wider scope, and applies as well to the inhabitants of the country or district over which it is proclaimed. Martial law now exists nowhere in the United States, while military law must exist-so long as we.have an army.
Congress has not only exercised its power “ to raise and support armies,” but also “ to constitue tribunals inferior to the Supreme Court,” — among which are courts martial. And the judgment of courts martial, when acting within their jurisdiction, are as valid as are those of the civil courts. Neither can overrule nor assume the jurisdiction of the other. In time of war all offences committed by soldiers, are cognizable by courts martial or military commissions. If the civil courts, in time of war, try and punish such offenders, it is because they are permitted to do so as a matter of comity or-expediency. The civil authorities have no right, in time of war, to demand the surrender.to them, for punishment, of a soldier who has committed an offence. Not so, however,, in time of peace. The Thirty-third Article of War provides as follows:
“ When any commissioned officer or soldier shall be accused of a capital crime, or of having used violence or committed an offence against the person or property of any citizen of. any of the United States, such as is punishable by the known laws of the land, the commanding *149officer and officers of every regiment, troop, or company to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer or officers shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrate, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers so offending shall be cashiered.”
This is the only provision of law requiring a military commander to deliver over to the civil authorities, for trial and punishment, an officer or soldier who is charged with crime. And it will be observed that this requires such surrender only when the person demanded is charged with an offence “ such as is punishable by the known laws of the landN If a soldier were to rob a mail bag in the postoffice here, then the word “ land,” in this statute, would mean the United States; if he were to commit highway robbery here, then it would mean the Territory of Utah — tiie former being an offence against the Federal, the latter an offence against a Territorial law. “ Known laws of the land,” are not the by-laws or ordinances of a city. But they are, when Federal laws, those laws of which the Federal courts, in all parts of the Republic, are bound to take judicial notice. They are, when State or Territorial laws, those laws, whether written or unwritten, of which the courts of the State or Territory are bound to take judicial notice. They are the statutes enacted by the law-making power, and the unwritten laws of the land. The ordinance of • Salt Lake City forbidding drunkenness and disorderly conduct is not such a law. It was not enacted by the law*150making power of the land. It is neither a Federal nor a Territorial law. Courts cannot take judicial notice of its existence. It must be proved like any matter of fact.
' It is clear, therefore,'that the civil authorities of Salt Lake city would have had no right to demand, the surrender to them of the soldier Bright, to be tried for the offence charged, and it is equally clear that had they made such demand, the Commandant of Camp Douglas would have had no right to deliver him over to them. It follows, of course, that the- trial and' sentence of Bright, by the Justice of. the Peace, were illegal, null and Void. He was, therefore, rightfully discharged by habeas corpus.
But we assume, from, the Record, that- Bright, when off duty, and in the city, was guilty of violating the .ordinance ihrbidding drunkenness and disorderly conduct. Was this wrong remediless ? Was this soldier, on leaving the camp and entering .the city, at once .superior to all control, save his perhaps uncontrollable appetite? By no means. It was the .right, and it may be found to be the duty, of the Commandant of Camp Douglas, to station a Provost guard in the city, to arrest any soldier who shall vii late any city ordinance. It cannot be permitted that a, soldier, because .he cannot be tried by a city court for violating a city-ordinance; a soldier who may have little If any*self control, shall be, .while in the city, above control.
If there was no Provost guard in the city, as the Court presumes there, was not, and if Bright was guilty of. drunkenness and disorderly. conduct, as the Court presumes he was, then it was right and lawful for Ihe .police authorities to take him into custody and restrain .him. Further than that, however, they had no right to go. To try him. and enter judgment of fine or imprisonment against him, was'not lawful. Instead of doing this, instead...of waiting for the prisoner to be discharged .from his illegal sentence by the writ of habeas corpus, the .police authorities ought to have surrendered him to the military authorities without controversy or resistance. *151Instead of doing so, however, they not only opposed his discharge hy habeas corpus, but: have appealed from the judgment discharging him. - If: instead of seeking a civil remedy, Col. Morrow had released the soldier by force, military law, which is as valid as any other, human law, and more summary than most remedies,..would have fully justified him.
But isa soldier to escape'trial and punishment for violating the ordinance' of. Salt Lake City, forbidding drunkenness and disorderly conduct ? By no means. It is the duty of the Commandant of Camp Douglas, whenever such offence is brought to his notice,' to see that the law military, is enforced against him. ' The offence is only cognizable by a court martial, and the civil courts can no more'assume the jurisdiction of that court, than it can assume the jurisdiction of the civil courts.
We have therefore reached the following conclusions:
1st. That a soldier of the National army can be demanded by and surrendered to the.civil authorities, to be tried and punished by them, only when he is charged with an offence, in time of peace, “ such- as is punishable by the known laws of the land,” that is, by the laws of the United States, or of a State or Territory.
2d. That a city by-law or ordinance is not in this sense a law of the land; but that a soldier who, when off duty, violates the ordinance of Salt Lake City forbidding drunkenness and' disorderly conduct, may, in the absence ‘of a Provost guard, be arrested in the act and restrained by the civil authorities,, but may not be tried and punished .by them. , .. .
Bd. That in case of such arrest and restraint, it is the duty of the civil authorities to deliver over such sol;dier to the military authorities, on the demand of the Tatter; and the duty . of the , military. authorities to enforce against him rthe law military, forbidding such offence. .
4th.' That if the civil authorities, after arresting such offender,' refuse to deliver him over on such demand, or proceed to try and punish him, the military authorities may take him by force.
*1525th. That if, instead of resorting to force, the military authorities present a petition to a Federal Court or Judge of the Territory, the prisoner must be discharged from the custody of the civil authorities by the writ of habeas corpus.
The judgment appealed from must be affirmed.
Emerson, J., concurred.