Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1864-02-01

citizens by arbitrary will. See the ARTICLES of
War; for the government of soldiers, enacted
by Congress, in Bnghtly's Dig. p 49, We may
further illustrate the distinction between govern
ing and Furnishing those subject to the military
codci by military tribunals, and governing the
citizen BY martial law, which is, in fact no law,
but arbitrary viii, by extracting couple of sec
tons from the act of Congress of March 3, 1868.
Section 80, of that net, reads thus:
"That in times of war instruction, or re-
bellion; murder, assault and battery with intent
to kill, manslaughter, mayhem, wounding by
shooting, or stabbing with an intent to commit
murder, robbery, arson, burglary, rape, assault
and battery with intent to commit a rape and
larceny, shall be punishable by the sentence of
general court-martial or military commission,
toen committed by persons ,cho are an the military
sercice Of the United States and subject TO the Art
cles Of Var; and the punishments for which
offenses shall never be less than those inflicted
by the laws of the State, Territory or District
in which they may have been committed"
Section SO, of the same act is as follows:
That all persons who in time of war or of
rebellion against the supreme authority of the
United States, shall be found lurking or acting
as spies in or about any of the Notifications.
posts, quarters, or encampments of any of the
armies of the United States, or elsewhere, shall
be tried by general court-martial military
commission. and shall, upon conviction, suffer
DEATH"
Such is military laU. What is called martial
law we again repeat, is applied to the citizen, by
subjecting him 10 the government of the military,
in certain exgencies. MARTIAL law is the law of
war, that depends on the just but arbitrary pow
er and pleasure of the king, for, though he
doth not make any laws but by the common
consent in parliament, yet in time of war, by
reason of the necessity of it, 20 guard against
dangers that often arise, he useth absolute pow
err; so that his word is law. However opposed
to other authorities, this expresses what is dis
tinctly meant, both in England and in this coun-
try, by martial law" New Am. Cyclop., tit.
Martial Law. The question now arises, when
and where can the citizen be subjected to martial
| law! He cannot certainly without an act of
Congress, be subjected to that law except upon
aecessity-occasioned by force, actually existing
or Immediately threatened, at the time and place
where martial law is exercised Whether, by act
of Congress, martial law could be declared
| throughout the United States, we need not in
quire. Sec De Hart, Mil. L., p. II.
| Martial lac is the law of force, and is employ
ed under two general conditions:
l. In part, or the WHOLE of foreign coun-
| try, when, being at war with such country, our
army may invade it, and expel the governing
power from part or the whole of it.
2. When force may expel the civil authority
from part or the whole of our own territory; or,
perhaps, it may be said, martial law is exercised
in our country, the military being onthe spot to
Execute it, where no civil authority exists But
where the civil authority exists the Constitution
| is imperative that it shall be paramount TO the
military. The right TO govern by martial law
does not grow out of the mere fact that we have
an army; for we have that at all times, in peace
| as well as in The Int to govern Indianap-
| oils by martial law does not arise upon the mere
fact that soldiers are stationed in the CITY, or arc
often marched through it; for soldiers are sta
toned at different points, and marched from
place 10 place in the country at all times, in
peace as well rs IN war. Yet in ordinary times
surely the officers commanding them do not
claim TO govern the citizens, not connected with
the army, by martial law.
| The right, in the military officer to govern by
martial law, as we have said arises upon the fact
of existing, or Immediately impending force, at
| given place, and time, against legal authority
which the civil authority is incompetent to over
come; and it is exercised precisely upon the prn-
ciple>on which selfdefense justifes the use of
force by individuals. Robbers and burglars, and,
in some cases, rioters may be resisted and even
slain, in selfdefensc, by private individuals.
That Is, there are cases where force must be re-
sisted by force, instead of waiting for the civil
authorities. This is the doctrine of Ruthcrforth,
in his Institutes of Natural Law. Sec Book /,
chap. 10; Book ?, chap. 9. This is the doctrine
expressed by the maxim, 'inter arRd silent Ie1es !"
cumstances. 1t was first laid down by Cicero,
so far we have been able to ascertain, in his
Grafton for Milo. The facts of that case are thus
stated: Milo was on his way TO Lanuvium.
Ciodius met him ON the road. Milo was in his
carriage with his wife, and was accompanied by a
numerous retinue, among whom some
giadiators. Clodius was on horseback, with
about thirty armed men. Tae followers of each
began to fight, and when the tumult had become
general, Clodius was slain, probably by Milo
himself. Milo was prosecuted for murder. Cicero
prepared Grafton in his defense, in which he
asserts that the right of selfdefense when we are
attacked by force is a principle and necessity of
na,ure-that we cannot in such cases, incur the
hazard of waiting for the law TO protectyus-that
in such circumstances it may be laid down as a
maxim, 'infer silent teges y that is that in
the midst of actual force, for anna is used as
meaning force. the law is silent. Rutherforth
uses the word force sgnifying arms. He saws
contention by force, whether By individuals or
governments, Is war. See uJi Supra. But be-
cause Milo had right to defend himself when
and where he was attacked without invoking
law in short, because the laws were silent for ON
hour in the midst of the combat between Milo
and Clodius, it was not contcntled that all law
was suspended throughout the Roman Empire
during the pleasure of the Executive power.
This corresponds with Lord Coke's idea OF
Cicero's maxim. He says
=" When the courts of Justice be open, and the
+ Judges and ministers of the same may by law
protect men from wrong and violence, and dis
tribute justice to all, it is said to be time OF
peace. SO when BY Invasion instruction, re-
bcllion or such like, the peaceable course of jus
tice j. disturbed and stopped, the courts be
as i; were shut up Il silent inter leges drma then
F it Is said to be time of war;" Coke upon Little
ton, as quoted in Law. Wheat. Int Law, D. 525.
There Is another maxim sometimes quoted in
connection with the above from Cicero. which
/, deserves a moments notice. .Sairs popuE SIT
prenlG ler-shc good of the individual must Weld
to tina. of the pablo This maxim, also. is acted
upon only locally and tenn 2orarily Broom saws
f of it: Hence there are many in which in
dIviduals sustain an injury for which the law
gives action; as when private houses arc
pulled down, or bulwarks raised on private prop
erty for the preservation and defense of the king
dom against the kings enemies. The civil law
writers indeed say, that those who suffer have a
right to resort to the public for a satisfaction but
no one ever thought that the common law gave
an action against the individual who pulled down
the house or raised the bulwark, and the reason
is that man may Justify committing the private
injury for the public good, as for instance, the
pulling down of house. II necessary, in order to
arrest the progress of fire." Broom's Maxims,
! p. l. See the subject of this maxim well dis
cussed in 2 Kent, 1913, ct seq. rt
These two maxims, and their application
illustrate and define martial law, under absolute
T governments and for the purposes of the case
at bar, shall concede the right to exercise
that law, as thus defined and applied under our
government limited, as all its departments are
BY a constitution. 1t is the law of force, applied
to govern persons and places where the civil law
is expelled; its officers rendered unable to exc
cute it, by forcible resistance. This right, thus
temporarily and locally TO exercise martial Ia W,