Year: 1862

considerable diversity of opinion prevails IN
regard TO martial law, its character, extent and
instrumeuaIities. Many persons suppose that
military law is martial law. This is an error.
The former Is a code Of Jaws prescribed for the
governments of the army. 1t relates exclusively
to persons attached to the military service. and
does not in its operations, embrace those en-
gagged in ordinary civil employments.


Martial law, on the contrary, embraces every
description of persons within the city or district
over which It has been established. 1t is not
deGuel and asccrtsined by enactments and judi
cia decisions, as iu the case Of military law, but
springs from tue win and Judgment of the com
mandaut whose duty it is TO enforce it. 1t
superceies the ordinary instrumentslities of
courts, such as judges, juries and sherifs. 1t
may even suspend, for the time being, the great
writ Of ha5sls r0pus In Other e.glis, mar
taI law may be said to be 40 law at all, but
rather the lral of the military coumandant,
regulated. it is true, by an enlightened regard
for the general welfare. It's true intent and ain
Is to place all power as well as all the resources
Of the district. I'm the hands of the military
authorities, To be used and welded against the
public enemy.


ItwiI thus be seen that the object had in
view is the public veal, and that If we are re-
strained of amy portion of our accustomed rights
It IS done for aur own good, as well as for the
general safety. This consideration alone should
reconcile as to any inconveniences that may re-
suit from the establishment of martial law


It's proper TO remark, however, that in the
execution of martial law, great prudence Is to be
exercised Chief Justice TANEY holds that
no more force can be used than is necessary
and if the power be used for oppression, or any
wiIfuI injury be done to person or property, the
party by whom or whose order # is done, viii
be responsi5lo TO the injured person.


1 review of the legal authorities would seem
10 conduct to the conclusion, that q military
officer cannot declare martial law except over
his own camp and its euvirOns, aud the near
field of his military operations. Such was the
opinion of Judge WOODBURY., who said:


Ny impression is, that q state Of war,
whether foreign or domestic, may exist, in the
great peril 0t which il Is competent, under It's
rights aud ora principles Of national law, for the
commanding officer of troops, under the con-
trolling government, TO eT end certain nights of
war not only over his camp, but its enviTOns
and the near field of his military operations, but
no further or wider


The best opinion would seem to be lhal in
time Of war, the government, by act of Con
gTess, may place the country under martial law
in a limited and mitigated sense though there
has been much controversy upon the ruurHrruH
OF the power. So, also in the language of
Judge Wo DBURY, the commanding officer of
troops may extend certain rights of war, not
only over bis camp but its euvirons and the
near-ield Of his military operations" Beyond
this. neither the government nor the military
commander can properly 60.


Nothing but imminent peril to the army,
arising from the near presence of the enemy,
can authorize the commander to suspend OF ar
rest the execution OF ordinary civil process. In
this as in other respects the safety of the army
will be the ruling motive of the military com
mauder.


There are but two instances In which martial
law was rasorted TO under the cld government
The first was IN New Orleans, IN 1914 when
Gen. JACKSON took the authority, against the
opinion of EDWARD LIVINGSTON, one of the
ablest ig1ists of his day, to place that city un
der martial law. The second was iu 1872, and
occurred In Rhode Island during whist is known
as the Don Rebellion