Year: 1861

only in war, or in condition of things re-
quiring armies and military action. While
it exists it 'extcnds to all the inhabitants
of the district where it is in fvce, whether
they are military or non-military. And it
is ''wholly arbitrary"


! AS to its origin and authority, it may
indeed be said to rest upon universal prac-
as well as upon irresistible necessity. Like
war itself, it can be justified only by neces-
sity but is justified by adequate necessity.
We can no more imagine sovereign State
with no power to resort to martial law, when
it becomes necessary, than of State which
has no power to carry on war of any kind
Or use military means in selfdefence. And
the right of determining when the necessity
for martial law exists, and of then declaring
it, or enforcing or applying it, either by
proclaiming it as in force over certain dis
trict or territory, Or in any other way, re-
sides obviously with the governing power Of
every State.


! There is one distinction, however, which
should be made. At home, even in actual
war, only the supreme power can declare or
exercise martial law and this it can do at
once, or conditionally, or by instructing any
of its military servants to do it, on such
terms as it may choose to prescribe. But
an army which leaves home and invades a
country, which has placed itself in a hostile
attitude, carries with it martial law, which
right resides then with the officer in COM
mand of the invading force, Or of the dis
trict invaded.


The principles and extent of operation
Of martial law are wholly and perhaps neces-
arily underlined. It may be compared in
this respect, with things utterly different
from it in other particulars, and resembling
it only in growing out of necessity. For
example, the power of a legislative body in
England and in this country to judge of and
protect its own rights, and the power Of a
judicial court to punish for contempt, are
powers almost incapable of exact definition,
but universally acknowledged. The Duke
of Wellington defined martial law as ''the
will of the COMMANDMENTS chief" but there
are principles and usages which qualify this
in some degree. Thus it is generally, al
though not universally, exercised through
courts martial and it is sometimes said,
and may be a general although certainly
not precisely accurate rule, that martial
law only brings all persons within the reach
of the ''articles of war"


- Practically. the very essence and SUBJ
stance of martil law is, in England and the
United States, the suspension Of the right
to the writ of habeas corpus. While any
person who is arrested by any authority can
have this writ, and be brought by it before
a civil tribunal, whose judgment determines
conclusively whether he shall be held as
prisoner or go at large, it is obvious that
the civil law prevails over either military or
martial law. And it is equally obvious that.
no person can be eAectually subjected to
martial law, that is to an arrest and trial by
military men, and punishment by them,
unless the writ CT habeas corpus is suspend
ed, for the time at least, and as to this per-
son. On the other hand, when the habeas
corpus is previously suspended, there is
nothing to interfere with or prevent the ex-
ercise of martial law. It may, indeed, be
said that, for all practical considerations,
martial law and the suspension of the right
to habeas corpus are one and the same thing.


Hew do these general remarks apply to
this country? First, the obvious, unques-
tionable, and universal need of power
somewhere to exercise martial law when an
adequate necessity exists, is as certain in
this as in all other organized nations But
we have also something in our National Con-
stitution about it. Not under the word and
name of martial law, but under that other
phrase which we have seen to be it's equiva-
lent-the suspenion of the right of habeas
corpus.


The Constitution of the United States,
art. ], sec. 8, n. 2, provides that the pri-
vllege of the writ of habeas corpus shall not
be suspended unless when, in cases of rebel
lion or invasion, the public safety may re-
quire it." And many Of the State constitu-
tions have similar provisions A fair in fer
ence from this is that the right to habeas
corpus may be suspended or, what is the
same thing martial law may be declared
and exercised Gin cases of rebellion or inva-
sion, when the public safety may require it.


The first and most important question
is, who may decide when the exigency oc-
ours, and who may, if it occurs, declare
martial law. On this point I have myself
no doubt. The clause on this subject is
contained in the first article of the Constitu-
ton, and this article relates principally to
Congress. Nor can there be any doubt that
Congress may, when the necessity occurs,
suspend the right to the writ of habcas cor
pus, or, which is the same thing, declare or
authorize martial law. The question is has
the President this power? The Constitu-
ton does not expressly give this power to
any department of Government, nor does it
expressly reserve it to Congress, although,
in the same article, it does make this express
reservation as to some Of the provisions con-
tanned in the article. This may be mere
accidental omission, but it seems to me more
reasonable and more consonant with the
principles of legal Interpretation to- infer
from it an absence of intention to confne it
to Congress. And [ am confirmed in this
opinion by the nature Of the case.


The very instances specified as those in
which the right to habeas corpus may be