Year: 1861

Professor Parsons of the Cambridge Law
School, thus defines Martial Law


Practically, the very essence and substanc,
OF martial law is, in England and the United


States, the suspension Of the right to the wri
of habeas corpus. While any person who is ar.
rested by any authority can have this writ, and
be brought by it before Il civil tribunal, whose
Judgment determines conclusivey whether he
shall be held as q prisoner or 90 at large, it is
obvious that the civil law prevails over either
military or martial law. And it is equally OBJ
vlous, that no person can be etiectualy subject
ed to martial law, that is, to an arrest and tria
| by military men, and punishment by them, un-
less the wit of habeas corpus is suspended, for
the time, at least, and as to this person. On
the other hand, when the habeas corpus is nre-
vous| y suspended, there is nothing to interfere
with or prevent the exercise Of martial law. Ii
may indeed be said that, for all practical consid-
erations, martial law and the Suspension of the
right to habeas corpus are one and the same
thing


The same able jurist, in treating of the legal
right of the Federal army to deal with the in
stitution of Slavery in rebellious State, after
stating that the slaves might be seized and used
in military labors, goes on to say:


1" The second way is to receive and harbor all
runaway slaves. And the third is but a step
further in the same direction, although it may
seem to be a wide step it is to liberate them,
not, as it were, passivcly, but by proclamation,
or other active measures. AS matter Of law, |
have not the least doubt of the right Of an in
vading army to do this. 1t would, regarded as
a mere question Of law, stand on the footing Of
a destruction Of private property in an enemy S
country. And like that it would be an un-
questionable right ; but, if the usages of war
were to govern it, it would be right to be exer-
cised only as u military necessity, and for the
purpose of weakening the enemy, and lessenlng
his means of attack or resistance. And the ex.
istcnce Of this necessity must be determined by
the commanding officer, or by the supreme
authority at home in view of all the circum-
between two slave States, say Georgia and
South Carolina, and Georgia should invade
South Carolina, have no doubt that the inva
ding forces might and would claim and possess
a right to exercise these means of weakening
their enemy if they thought proper.


The fourth way of dealing with slaves would
be to put weapons into their hands and ncte
them to armed insurrection. If any such
right as this can ever exist, it can only spring
from the EXTREMIST necessity, and from con-
dition of things which it would be difficult and
painful to imagine. With my understanding
of an armed servile insurrecion must be, may
illustrate my view of the law thus. An army
which invested city that was supplied with
water by a stream flowing into it, would have
a military right to cut off the stream, and 50
reduce the city to submission. Bat it would
have no right, military or other, to poison the
waters. There seems to me, as matter of law.
good test for this. The commander of an in
vading army might certainly, as a military ne
cessity, liberate the slaves, and make any use of
them which he could make Of his own soldiers !;
but nothing morc.'