Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1861-06-28
Martial Law-Its Rules OF Procedure.

foreign news, correspondence, sc.
Martial Law--Its Rules Of Procedure.
Martial Law is declared in Baltimore.
The question Is What is Martial Law2
Itis, l. Military law-laws for the regu-
lation of the army, prescribing its discipline
and organization, defining the duties of Off !
GERS and soldiers and providing for the pun |
isbment of the Odenses which they may COM |
NIT. These laws go with the army; but their |
operation is limited to the army and to the |
place of which, for the time being, it is in
actual occupancy.
But the point of the greatest interest to be
determined is: What is the effect Of de-
claration Of martial law upon the people and
citizens generally of the place over
which it is extended. Upon this branch
of the subject the precedents are few,
ard the learning not very precise. The gen.
eIal rule in Eugland, as laid down by De
Lolme, is that when the Sovereign looks to
his army for the security of his person and
authority, the same military laws by which
the army is TO be kept together, must be ex-
tended over the whole nation not in regard
to military duties and exercises, butcertainly
in regard to all that relates to the respect
due to the Sovereign and to his orders"
The declaration of martial law, which in
England is made by act Of Parliament, sub-
jects every offender against the national
sovereignty to prosecution before military
tribunal, and to punishment, on conviction,
according to the rules provided to create
and define its jurisdiction. But it does not
follow from this that the administrators
of martial law are therefore allowed to
transcend recognized principles of justice, or
to ibflict extreme and dispropOrtionate PEN
alties upon those whom they convict; for
says the same author; "All courts of a
military kind are under constant subordi-
nation to the ordinary courts oflaw. Officers
who have abused their private power, though
only in regard to their own soldiers, may be
called to account before ceurt of common
law, and compelled to make proper satisfac-
ton. Even any fragrant abuse of authority
committed by members of courts-martial
when sitting to judge their own people, and
determine upon cases entirely of military
kind, makes them liable to the animadversion
of the civil Judge. Te the above facts con-
cernipg the pre- eminence of the civil over
the military power at large, It is need
less to add, that all oflenses committed
by persons of the military profession,
in regard to individuals belonging to
the other classes of the people, are to be
determined upon by the civil judge. Any
use they may make of their force, unless ex-
pressly authorized and directed by the civil
magistrate, let the occasion be what it may,
makes them liable to be convicted of murder
for any life that may have been lost"
The suspension of the habeaS corpus, how
ever, which always attends the declaration
of martial law, cuts off all right of super
visory jurisdiction, to be exercised by the
civil, over the cases tried in the military tri-
bunals. The decision of the latter is final,
and its decree legitimate authority to the
Executive officer; but it is the court that is
holden responsible for the manner in which
it performs the duties which devOlve upOnit
by the declaration.
1t is probable that the general rules in re-
gard to martial law in England, being in
conformity with received ideas of common
right, may be considered as properly applica-
bic to the United States.
Whenever a place is invested by the army
with view to suppress a popular tumult
and enforce obedience to the Government,
thatplace is by force Of this proceeding, and,
whether or not there be a formal declara-
tioE, made subject to martial law; and all
effenses of reasonable character are liable
to punishment by military tribunal. In
respect to the proclamations, a proclama-
tion to suspend the ha6sas corpus is proc
lamation of martial law, and Vics versa.
But it does not follow, because the new
jurisdiction is established, that the functions
Of the old are suspended. The two may re-
main concurrent in their province, though
each is entirely Independent in its action.
The civil courts may try and convict under
the laws, without offense; though the gen.
eral presumption is, that the military is es.
tablished in consequence of forcible OBJ
structions to the civil jurisdiction.
Nor does it follow, because martial law is
proclaimed and courts martial organized, that
therefore arbitrary arrests and punishments
are authorized, new offenses created, or the
principles of justice disregarded. Treason
gains NO new definition under martial law;
nor are detentions, without probable cause,
any more excusable under the military than
under the civil jurisdiction. Arrests, trials
and punishments may, from the urgency of
the case, be more summary and less indul'
genee be allowed to pleas for mere delay;
but the rules Of evidence remain the same,
and the party must be fairly convicted upon
competent testimony, before the right &C.
crues to inAict the penalty.
1t is vulgar idea, of which dishonest use
is made, that declaration of martial law i
equivalent To a denial of common justice,
destruction of all the safeguards of society
and an installation in their place of thu
license of arbitrary and irresponsible power
1t is treated as il it were equivalent to tb
delivering over Of conquered city or prov
ince 10 the wGnton caprice of an unre
strained soldiery, and the initiative of
series of measures, the end of which will b
to establish despotiRn upon the ruins o
popular liberty and the Constitution. From
the foregoing it viii be seen how little dan
ger there is Of such fearful consequences.
is better, of course, to avoid the measure il
all cases, except where circumstances rende
ii necessary; but even the most stringent o
military inriadiefiona uudar fha rulaa unol