Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1863-02-25
Martial LaW..British and American Au.
thorities on the Sub; ect.

a
this subject, and the angry and untounded
criticism by northern sympathizers with
southern treason, upon every act of the
government calculated to cripple the re
hellion, may induce you to give place to
an examination into the precedents and au-
thorities upon this subject.
Martial Law, is to be carefully distin-
guished from Military Law, which exists
for the government CT the forces in peace
as well as in war.
Martial Law is the suspension tor the
time being of all constitutions and civil
laws: the closing of common law courts,
and the forcible Inauguration OF new,
Temporary. arbitrary system OF administer
ing Justice and is only to be justified by
the Overwhelming necessity Of the case.
/ propose first to examine this subject
upon English authorities and ther refer
to the American doctrine as to the right
to proclaim martial law.
It may be promised that martial law in
England as completely violates and sus-
ponds the Magma Charta as our own con-
st;tution.
Section SO, provides:
No freeman shall be taken imprisoned, dis
seized or outlawed or banished or in any way de-
stroyed, nor will We pass upon him. nor will We send
upon him, unless by the lawful judgment Of his
peers, or by the law Of the land"
The mutiny act of 1859, which has been
reenacted at every session OF Parliament
for more than one hundred and seventy
years, contains the following declaration:
"Whereas no man may be forejudged of life or
limb, or subjected to any kind of Judgment by mar
tfal law IN any other manner than by the judg-
ment OF his peers, and according to tb known and
established laws of this realm, etc."
lie is impossible to conceive of any doc
trine, more irradicably craven upon the
constitution and civil policy of England,
than this right of habeas corpals, and ex-
elnption of the subject from the operation
of martial law.
But Notwithstanding this clear provis-
ion of the Magma Chart3, as often as it is
necessary, martial law Is proclaimed. In
the riots OF 1850, after the mob had insul-
ted majority OF parliament, and the res
idence OF the chief Justice, the King in
council issued his proclamation
3. We have therefore issued the most direct and
effeetual orders to all officers, by immediate
exertion of their utmost force, to suppress the
same
After which the Adjutant General Is
sued ord"rs to the army as follows:
n
Gil, the military are to act without awaiting the d.
reetion of the civil magistrate. and force for
dispensing the illegal and tumultuous assemblies
of the people,"
In the subsequent debates in parlia-
ment, the conduct OF the King was ap-
proved. Lord Mansfield and Lord Thur
low denied that it was a prerogative of
the King to declare martial law, or to use
the military TO suppress riots; but they
defended the act on the ground of neces-
sity.
During the Irish Rebellion in 1898, Lord
Camden, Lord Lieutenant of Ireland, pro-
claimed martial law, which existed wear
without any Legislative action, and after
that, the Irish parliament sanctioned the
act. IN loUl, after the union, this sub
jet came TO be discussed in parliament
and bill was introduced to continue mar
tial law in Ireland. In this debate. both
those who approved and those who op-
posed The bill. conceded the right of the
executive government to proclaim martial
law, when necessary.
Sheridan, opposing the bill said:
% In case of rebellion invasion his majesty
has by virtue OF his prerogative right to martial
lew
Lord Castlereagh, for the bill said
81 perfectly understand that the prerogative of
the crown authorizes those acting under its au-
thoTity exercise martial law. maintain that it
is constitutional mode for the executive govern
ment to exercise martial law in the first instance
and to come to parliament for indemnity after
wards; and is preferable 70 applying to parliament
first.
= The only circumstance in mind is whe Their if
the necessity exists this is the proper remedy If
u De So we ought not 10 take alarm at departure
from principle, a0hscl IS necessary for the prese-
cation ef the constitution ttseLf.''
Sir l.. Parsons, opposing the bill said:
I" He thought the measures unnecessary. The
executive government could resort to martial law
4f Il S0dS accessory to suppress re6ellson.'
MIR. Gray, opposing said:
st was better that the executive government
should resort to what has been called (hs thought
not kegaLy) its prerogGfi0e of proclamipg martial
Law. That q0as no prerogatiUe Of the croaon, but
marital tdfo being suspension Of the kla1's peace
But it was better that martial law should proce
ments, than be the work OF the legislature every
slight pretence-''
In the rebellion in Ceylon, in 1S4S, the
Governor proclaimed martial law, and
tried and executed many rebels.
His conduct was severely criticised in
England upon the ground that it scas IN
necessary atssi in an able review in the
Quarterly, vol, 50, page 127, it is said
.sWe shalt define martial law to be the Iozc OF
necessity or defense. The right which a governor
of colony has to proclaim martial law over his
subjects may be said to bear a close analogy TO the
right which an individual, in absence of legal pro-
lection, has to slay assaant. 1t both cases the
evils must be grave In both cases all regular
means of defence mus. be exhausted or beyond
reach before the aggreved party resorts to extrem-
tiles. 1t both cases the burden of proof lies on
HIM who has yentured on such an expedenr and
if he fails TO vindicate himself, he is liable to Sc
yere punishment
Hallam, l, Const. Hist, p. $40, SAYS:
.There may indeed be times of pressing dnnger
when the conservation OF all, demands a sacrifice
of the legal rights OF a few there be cre UNI
stances that not only justify but compel tenn
po-ary abandonment of constitutional forms II
hGS been uSeo for al 0UerHGients during ua
rebellion, 70 proclaim martial law, the suspen.
sion OF civil juTisdi Ction. And this anomaly,
must admit is yery far from being less indispe
BILE at such unhappy seasons, in countries where
the ordinary mode of trial is by jury, than where
the right OF decision rests in the judge.
In very able article in the 45th vol.
Lond. Law Mag, p. 20S, the writer saws
To preserve the constitution from destruction
by tyranny the subject appeals to force and arms
in case 10 preserve the constit Gtion from d
struction by rIct, rebellion instruction the
executive appeals to force and in the other
Each case, is appears 10 US, is equally incSpable
from the nature of It, of being limited defined or
stated prt0ri,' The circumstances in which
either right may arise cannot be told necessity
alone must determine. But though the difficulty
OF defining martial law--or, what is much the same
thiug-of stating where the right OF proclaiminc