Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1862-10-29
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From the Richmond Examiner
THE ABROGATION OF MARTIAL LAW In
THE CONPEDERACY.

IHE CUNFEUERAC1.
9lsToRY OF MARTIAL LAw-ACTIoN OF CONGRESS
DOES MARTIAL LAW EXIST IN ANY FORM IN THE CON-
fEDERACY2
The prominence which has been given to the sub
ect of martial law in the action Of Congress and va
rious forms of discussion has introduced 1t to pub
lie attention as one of the most important and IN
teresting topics of the day. We propose to reca-
pitulate the action of Congress in this matter, and
accompany it with sketch of some other features
of history and public opinion which properly be.
long to the interest of the subject.
HISTORY OF MARITAL LAW.
Martial law was part Of the ancient common law
of England but its pristine vigor has long since
been paralyzed in that country by the progress Of
liberty. In the beginning it was the law admins
tered in the courts held by the Lord High Ccnsts.
bic, or by the Earl Marshal of England, and his
subordinates, the Provost Marshas and Lieuten-
ants of counties. The law itself was comIsonly de-
scrbed by reference to the jurisdiction Of the court
of the Marshal. That jurisdiction embraced matters
of war and chivalry and contracts made beyond sea
concerning arms Beyond these subjects the juris-
diction of the Marshars court was disputed, and,
indeed, was forbidden by statute in the 18th year
of the reign of Richard II.
The methods of procedure in these courts were
summary, excluding the guarded modes OF trial oo-
served in the ordinary civil tribunals In the ad-
Indication of questions arising in the army, they
proceeded upon the axiom that the power OF the
King was absolute over the army in the tielo and
the life of every person attached to the army IN
time of war. This power was not controlled by
any law. The King Gt is said) might put to death,
at will, any soldier in the field His commands
were law to the army and to the courts of the mar
shals. Thus, in effect absolute power, admins
tered by military courts in summary proceedings
constituted martial law.
No authority to extend martial law over persons
not connected with the army incident to militia
~ command But such authority was claimed to
belong to the King, at least in times of war and IN
surrection, as political no less than as military
power of the crown But, whether, according to
the ancient common law, it was prerogative of
the King to cause martial law to be put in force in
time of peace, to the army; TO extend it,
at any time over civilians; these and other ques-
lions of like nature long and severely contest
ed. Usually. the preenSions and practices OF arb-
trary monarchs in turbulent times were IN contrast
with the unheeded opinions Of courts and urists.-
But it was generally admitted by those who con-
dc,nned as well as those who invoked its exercise,
that martial law, whenever and wherever it could
lawfully prevail, had the effect to institute the arb
trary power and the jurisdiction of courts martial
During the reign Of Charles |, the Parliament, by
of the people of England, and, among other grey-
ances, denounced the abuse of martial law alleging
that persons not connected with the army Tin COM
mon with soldiers) had been tried by the Of
martial law under commissions from the crown !;
and affirming that this was unlawful. After the
long struggles which marked the 18th century, the
Bill of Rights and the subsequent practice of Par
lament placed the rights of the subject, in this re-
gard, on still frmer and palmer ground.
The ancient martial law, as applicable to the
army, has been superseded in England and in this
country by that which We now call military law
asystem of regulations enacted by the Legislature
for the government of the military forces.
ACTION OF CONGRESS WITH REFERENCE TO MAR
TIAL LAW.
The action of the Confederate Congress on the
subject of martial law, was preaced by much
discussion and diverted by so many propositions
that the public mind has been left in some state o
confusion as to what was done or intended by thai
body.
In both branches of Congress the conclusion
seems to have been made with equal unanimity
that martial law in its ancient of arbitrary
suspension OF all the laws and civil Jurisdictions
could not exist within the Confederate States. III,
only questions before Congress- appear to have beer
to what extent modern "mllitary" law, which hat
superseded martial law, as it was understood il
England centuries ago, might be put in force, an
how far a secondary and extraordinary application
might be made of it to citizens not in the army
These were the real points Of the discussion i
Congress.
A familiar principle in this discussion that
NECESSITY; it was argued that military com
mander might do any act when it became necessar
for the safety Of his army, and that therefore, tn
declaration Of martial law might be justified on tn
theory of sacrificing certain rights to the publ
S,fu no full of ic yrhi
to have captivated number Of weak minds, is cas-
ly exposed. 1t is true that military commando
may do acts, which, in certain circumstances al
unlawful, when there is an authority and duty d
volved upon him, which can not be performed will
ont the commission OF such acts. Bat in every cas-
he must show the authority of the law and the n
cesSity Of the occasion. \ commanding Gener
may exert many unusual powers at or Il
place occupied by his force. But if, by any sue
exercise of power, citizen may be injured, the of
must Justify the particular act causing the I'M,
ry, by showing that this very act was necessaril
or properly incident to the authority and duty d
VOWED upon him by the laws. This, of course, is
power very different from that claimed under ma
tial law. In every instance of the exercise of SUE
power, the officer assumes the hazard of respons
blity according to known principles of law.
We annex copy of the resolutions passed
the Senate with reference to the subject of marti
law; wncn, although they were not passed by Il
House, after being embodied by it in bill, on a
count of precedence of other business at the close
the session, may be taken as indicative of the sen
Of Congress:
JOINT RESOLUTIONS RELATIVE TO PROVOST MARSHAL
LIST. Re'olred by the Congress of the Contsdera
States Of America, That no officer of the COME
crate government is by law empowered to vest Pr
vost Marshals with any authority whaterer opsr G
1sens Of the Confederate States, not belonging to
land CT naval forces thereof, or Nth general pol
Foosrs and duties for the preservation of the pea
and good order Of any city, town or municipal d
trict in any State of this Confederacy and any su
exercise OF authority is illegal and void
mat no officer of the Confederate Governme
has Constitutional or other lawful authority to lin
or restrict or In any manner to control the exerc
of the jurisdiction OF the civil judicial tribunals
the States Of this Confederacy, vested in them
the Constitution and laws of the States respecti
ly, and all orders of any such officer. tending to
strict or control or interfere with the fnll and n
NAL exercise of the jurisdiction of such civil in
eial tribunals are illegal and void. -
Sd. That the military law Of the Confader
States is, BY the Constitution and the epactme
Of Congress, limited to the land and naval for,
and the militia when in actual service, and to 81
other persons as are within the lines of any ar,
army corps, division or brigade of the army Of
Confederate States: and no officer of thu Hon