Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-02-26
Martial LaW--British and American Au-
fh0rities Oh the subject.

criticism by northern sythpalnlZefS Win
southern treason, upon every act OF the
government calculated to cripple the re.
belion, may induce you to give place to
On examination into the precedents and au-
tho ties upon this subject.
Martial Law, is to be carefully distin.
gulshed from Military Law, which exists
for the government OF the forces in peace
as well as in war.
Martial Law is the suspension for the
time being of all constitutions and civil
laws the closing of common law courts,
and the foreible Inauguration of a new,
temporary, arbitrary system OF administer
ing justice and is only to be justified 6y
ths overwhelming aaecessity Of The case.
propose first to examine this subject
upon English authorities; and then refer
TO the American doctrine as to the right
to proclaim martial law.
1t may be promised that martial law In
England as completely violates and sus-
ponds the Magma Charta as our own con-
stitution.
Section 80, provides:
"No freeman shall be taken or imprisoned dis
seized or outlawed or banished in any way de-
stroyed, will 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
tor more than one hundred end seventy
years, contains the following declaration :
"Whereas may be forejudged of life or
limb, or subjected to any kind of Judgment by mar
tia law, or in any other manner than by the judg-
pnntn Mt IA opo1o l,,,r. 80
established laws Of this realm, etc.,
1t is impossible to conceive Of any doc
trine, more irradicably craven upon the
constitution and civil policy of England.
than this right Of habeas corpus, and ex.
enption of The subject from the operation
Of martial law.
but Notwithstanding this clear provis-
ion of the Magma ChUrtG, as often rs it is
necessary, martial law is proclaimed. In
the riots Of 1850, after the mob had insul-
TED majority OF parliament, and the res
ldence or the chlet Justice, the King In
council issued his proclamation
g We have therefore issued the most direct and
chectual orders to all our officers, by Immediate
exertion Of their utmost force, to suppress the
same"
Alter which the Adjutant General is
sued orders To the army as follows:
6 In obedience to order OF the King in coun-
ell the mltary are to act without awaiting the di
rection of the civil magistrate and to use force for
dispensing the Illegal and tumutuous assemblies
OF the people,"
In the subsequent debates in parlja
ment, the Conduct OF the King was an
proved. Lord Mansfield and Lord Thur
low denied that 1t WAS a prerCgative of
The hIng to declare martial law, or 10 use
the military to suppress riots; but thew
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 q wear
without any legislative action, and after
that, the Irish parliament sanctioned the
act. In loOl, after the union, this sub
Ject camo 10 be discussed in parliament :;
and bill was Introduced to continue mar
tlal law in Ireland. la this debate. both
those who approved and those who op-
posed The bllI conceded the right of the
executive government to prCclaiu martial
law, when necessary.
Sheridan, opposing the bill said:
"In case Of rebellion or invasion his majesty
has, by virtue of his prerogatye, right to martial
law
Lord Castlereagh, for the bill said:
6 perfectly understand that the prerogative of
the crown authorizes those acting under its au-
thority to exercise martial law, maintain that it
is constitutional mode for the executive govern
ment to exercise martial law in the instance
and to come to parliament for indemnity after
wards; and is preferable to applying to parliament
first.
The only circumstance in mind is whether if
the necessity exists this is the proper remedy2 If
it be So ought not to take alarm at a departure
from principle, aCbjch IS necessary for the preseY-
cation Cf Tie constitution uSeJ.'
Sir l.. Parsons, opposing the bill said:
" lie thought the measures unnecessary. The
executive government could resort to martial law
IL 1t eedS necessary TO suppress re0elLi0n."
Mr.. Gray, opposing said:
sit better that the executive government
should resort to what has been called (te thought
not hgdHy) its preTogdtiCe of proclaiming martial
law. That qCuS no preT0gItiUe Of the cr02Cn, but
rather an act OF power, sanctioned 6y necessity,
marital tar bang suspension OF the &ingS peace.
But IT Was better that martial law should proceed
IRON the executive government, in urgent mo-
ments, than be the work OF the legislature every
slight pretence."
In the rebellion in Ceylon, in lS4S, the
Governor proclaimed martial law, and
tried and executed many rebels.
His conduct was severely criticised in
England upon tie ground that 1t s0as an
necessary and in an able review in the
Quarterly, VOL, So, page 1877, it is said:
.'We shall! define martial law to be the laao o.
necessity or dctense. The night which governor
of colony has to proclaim martial law over his
subjects may be said TO bear close analogy TO the
right which an individual, in absence of legal pro.
lection, has to Stay assaiant. 1t both cases the
evils must be grave In both cases all regular
means of defence must be exhausted or beyonC
reach before the aggreved party resorts to extrem
tiles. 1t both cases the burden of proof lies OF
him who has ventured such an expedient an,
If he fails to vindicate himself he is Iiabl" se
were punishment"
Halam, l, Oonst. Hist, p. $40, says:
"There may indeed be times of pressing danger
when the conservation of Ill. demands a sacrific,
of the legal rights of a few there NAV be circum
stances that not only justify bat compel the TEN
porary abandonment of constitutional forms
has been used for all governments, during actua
rebellion, to proclaim martial law, or the susnen
sion of civil jurisdiction. And this anomaly,
must admit, is very far rom being less indispensa
BILE at such unhappy seasons, in countries wher,
the ordinary mode of trial is by jury, than whe r
the right of decision rests in the judge.
In a very able article in the 45th vol.
Lond. Law Mag, P. 20S, the writer says
To preserve the constitution from destructio,
py tyranny the subject appeals TO force and arm
in case; to preserve the constitution from de
struction by rios, rebellion or instruction, tn,
executive appeals to force and in the other
Each case, it appears to US, is equally inc&pab
from the nature of it, of being limited defined,
- even stated a pri0rt; the circumstances in which
Geither right may arise cannot be told ueceSSit
alone must determine. But though the difficult,
OF defining martial law-or, what is much the sam,
thiug-of stating where the right of proclaimin!
1t arises, be 1nsupportable, there is, We conceive
little dlthcuLty about explaining generally martha
law to consist in the suspension OF all other laws
and of the rights springing out of them and the ap
pleati0n of force to the summary execution o
whatever measures prudence and foresight, TEN
pered by humanity and natural equity, ma1 dictGt
as indispensable for the Sdfey Of the state and tn