Year: 1861

Sir mathew Hale remarks that Martial Law is


in truth and reality no law, but sometimes INDUCED /
rather than allowed rs a law" The booksconoin DO


instruction on the subject The law dlction-


aries define it as an arbitrary kind Of law or rule,


sometimes established in aplaco ordisriCt occupied
or controlled by an armed force, bywhich the civ


il authority is temporarily surrendered or suspen-


ded but none Of the writer's on law have veutur-
ed to enter on any discussion or explanation Of its
scope or effect The simple definition Of law in
general-tha it is rule of action-seems at once


to indicate that the expression martial law i. not


strictly correct name for the state Of affairs which


exists where it is declared. 1t is distinct in all


respect. from military law, which is the code es


tablished by Government for theregnlation Of its


sodery. Thus in the statutes Of the United


States are to be found complete series Of rules


for the guidance Of the army and navy, These


provide for the most minute circumstances which


are likely to occur in times peace or oiwar and


are understood us prevailing in every camp and


governing all persons in the military or naval ser


vice Of the country. They do not operate to force


the officers and soldiers of the Government from


obligations to the civil law, but where an olensc


has been committed of which the courts Of law


and the coarts-martia have alike jurisdiction the


latter take precedence iu judging the offender,


and their Judgment frees him from the operation


Of the ordinary processes Of criminal prosecution


These statutes dinct the formation Of courts-mar


tisl regulate all the mnutn Of trial, the forms Of


oath to be administered, the rights Of the accused


and tho punishment which may be decroed,


1t may be imagined that a declaration Of martial


law would operate to extend the operation of the


military law over all the residents Of certain dis


trict and require an exercise of the same forms
and ceremonies in the trial of offenders who were


not connected with the army as with those who
were in the service But this is not the case by
, any means. Martial law knows no law, 1t is the
result Of necessity, and when declared, it must
I necessarily operate to place the superior officer
a who commands in the district or who shall have


found il Unnecessary to declare its existence at once
b in the position Of an absolute governor lie is
Immediately responsible to no one for the exercise
Q of bis powers, except his military Superiors.--
o Should ho in governing the country which he
!, thus seizes upon, or in which he declares martial
, law, do anything unbecoming an officer or e1er
else tyranica power to the injury Of private cit
zsns, he is responsible to court-martial under the
0 military law, and would be judged by his fellow
+ soldiers, lie s thus placed in position Of re-


markable delicacy, He is an autocrat and his


orders must be obeyed on tho instant We dc
Il not perceive any doubt that he has power Of life
!, and DEATH that he may confscate property, imprls
on citizens, and shoot or hang offenders without
/, form Of trial, on the motion of his own will But
for all this he is responsible to the Judgment o
n his companions in arms, and may be himself treC
"a and condemned when the opportunity arrives.


of How far martial law in this country would b,
N recognized as protecting the soldier who admins
= ters it from subsequent prosecutions by citizens
NJ after the restoration Of peace is one of the quea
N tions which must remain undecided for the pre-
he sent. The trial and acquittal ofa soldier by


court martial would be a bar to his indictment an
le conviction in criminal court forever after bu
es would not be bar TO a civil action, brought by
ts citizen WHOM he had imprisoned, or punished, Th
be question is whether he could defend hmselfn in sue
I'd an action BY showing that. be was on officer