Year: 1861

The existence Of an army renders neces-
sary laws for its regulation and tribunals for
their enforcement, coequal in extent ofjuris-
diction with the territory occupied by the
army, and the persons of whom it is com
posed. In the Articles of War; contained in
the act for the organization of the Army of
the United States, provision is made for such
tribunals and the several oGenses over which
they have jurisdiction are defined. The wei.
fare of the army, and the preservation of its
loyalty and efficiency, is the basis and pri-
mary reason of all military jurisdiction, and,
as general rule, all its powers have bear.
ing upon that end. An English standard
authority upon this subject says;


Martial law is a series of regulations
made to preserve order and discipline in the
army, and enforced by the prompt decisions
of Courts. martial"


This is precisely what it is in the United
States, as it appears in the Act of Congress
to which we have referred. There are, how.
ever, circumstances under which the juris-
dictions Of Courts-martial are somewhat ex-
tended. The author above quoted re-
marks


"Duripg the existence of a rebellion,
when, in consequence of the ordinary pro-
cesses of the law becoming Intellectual for
the security of life and property in any prov
ince or State, the Legislature has appointed
that military force shall be employed to
suppress the disorders and secure the of
tenders; and when the trial Of the latter
takes place according to the practice of mill
tary courts, that province or State is said to
be subject to Martial law"


A place is under martial law, therefore,
VIXEN, in consequence of a rebellion, the or
dinary process of the law for the security of
life and property have become Intellectual,
and military tribunal has been established
to supply the deficiency. The province or
territory within the jurisdiction of this
Court martial is said to be under martial
law.


. The principal Office of the Court-martial,
in the exercise Of its extraordinary power, is
to aid the civil courts of the land in the pro
lection of life and property, or to supply
their place in case they are incapable to of
ficiate. So far from being empowered to
make new laws, create new offenses, estab.
lish new rules Of right, or WELD any new
authority over the persons, property or con-
duct of men, they simply stand in the place
of substitutes or subsidiaries to the ordinary
courts of justice--acting perhaps by different
and more summary forms of proceeding, but
not for the purpose of arriving at different
conclusion.


There is one case-and 90 far as we know
L,I1 -.
jurisdictionoutsi the material of the army,
and at the same time of that of the civil
courts. This is in the case of spies. All enc
mics taken whiting the lines of the army are
presumed to be spies, and, under the laws of
the United States, may be tried by Court
martial, and shot. Over this ofense, its
jurisdiction is exclusive.


We have taken this small amount of pains
to show the Gazette what we have been able
to learn upon the subject of martial law, for
this reason; The Gazette has appeared to
think that to proclaim martial law is an
act Of great vigor and severity; being not
only equivalent to the abolition of all civil
rights-placing the persons and interests of
all individuals within its reach entirely at
the mercy of the military jurisdiction, but to
the establishment of entirely new rules of
right and Of conduct, the creation of new
crimes, and the subjection of every thing that
civil institutions are intended to protect to
the mere will of an irresponsible despotism.
Not only so, but the Gazette has manifested
desire to have this despotism set at work,
to see mon seized and ground down under it,
their persons subjected to punishment, and
their property confscated. We do not ad-
mire this disposition in the Gazette
The extension of martial law or the juris-
diction of military courts beyond the limits
prescribed by the statute is matter of very
doubtful eZpediency, and it is far safer to
discourage than to recommend it. Several
of the great lights of the English law have
spoken against the practice, and the learned
Sir Matthew Hale went so far as to affirm
that even in respect to the army, it was q
thing rather Of suAerence than of right.


"But the martial law-said he-is in re.
slity not a law, but something INDUCED
rather than allowed as a law, ard it relates
only to members of the army, being never





ought to be ordered and governed by tht
laws to which they are subject though it bt
in time of war;"


We are, therefore, warranted in saying:


Martial law is in contemplation of thr
statute only for the government of the army
and punishment of spies.


1t should only be extended beyond thi
line in cases of great and palpable necessity
and then only for the protection Of life ant
property.


1t creates no new ofenBes, nor does it es
tablish any new rules of right and wrong, o
give any new powers over persons or prop
erty.


1t confeIs upon no man arbitrary and IRE
sponsible authority of any kind, and whose
ever shall exercise such authority in th
name of martial law is an usurper and
traitor against the government, and deserve
to be punished accordingly.


The experience of modern times has taugh
the danger of permitting, under pretens
of necessity, the exercise of any species Q
arbitrary and irresponsible power. Englisl
and French history is full of accounts of tn
wrongs that have been practiced by SOY
ereigns and their subordinates upon the pee
pie, under pretense of military necessity
and the effect of such practices in Englan