MARTIAL LAW. 



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the military coae by military tribunals, and govern- 

 ing the citizen by martial law, which is, in tact, no 

 law, but arbitrary will, by referring to Sections 30 

 and 38 of the act of Congress of March 3d, 1863. 



Such is military law. What is called martial law, 

 is applied to the citizen, by subjecting him to the 

 government of the military in certain exigencies. 

 " Martial law is the law of war, that depends on the 

 just but arbitrary power and pleasure of the king, 

 for, though he doth not make any laws but by the 

 common consent in parliament, yet in time of war, 

 by reason of the necessity of it, to guard against 

 dangers that often arise, he useth absolute power ; so 

 that his word is law. However opposed to other au- 

 thorities, this expresses what is distinctly meant, 

 both in England and in this country, by martial law." 

 New Am. Cyclop., tit. Martial Law. The question 

 now arises, when and where can the citizen be sub- 

 jected to martial law? He cannot, certainly, with- 

 out an act of Congress be subjected to that law ex- 

 cept upon necessity occasioned by force, actually 

 existing or immediately threatened, at the time and 

 place where martial law is exercised. Whether, by 

 act of Congress, martial law could be declared 

 throughout the United States, we need not inquire. 

 See De Hart, Mil. L., p. 17. 



Martial law is the law of force, and is employed 

 under two general conditions : 



1. In a part, or the whole, of a foreign country, 

 when, being "at war with such country, our army 

 may invade it, and expel the governing power from 

 a part or the whole of it. 



2. When force may expel the civil authority from 

 a part or the whole of our own territory ; or, perhaps 

 it may be said, martial law is exercised in our coun- 

 try, the military being on the spot to execute it, 

 where no civil authority exists. But where the civil 

 authority exists, the Constitution is imperative that 

 it shall be paramount to the military. The right to 

 govern by martial law does not grow out of the mere 

 fact that we have an army ; for we have that at all 

 times, in peace as well as in war. The right to gov- 

 ern Indianapolis by martial law does not arise upon 

 the mere fact that soldiers are stationed in the city, 

 or are often marched through it ; for soldiers are sta- 

 tioned at different points, and marched from place to 

 place in the country at all times, in peace as well as 

 in war. Yet, in ordinary times, surely the officers 

 commanding them do not claim to govern the citi- 

 zens, not connected with the army, by martial law. 



The right, in the military officer, to govern by 

 martial law, as we have said, arises upon the fact of 

 existing, or immediately impending force, at a given 

 place and time, against legal authority, which the 

 civil authority is incompetent to overcome ; and it is 

 exercised precisely upon the principle on which self- 

 defence justifies the use of force by individuals. 

 Robbers and burglars, and in some cases, rioters may 

 be resisted and even slain, in self-defence, by private 

 individuals. That is, there are cases where force 

 must be resisted by force, instead of waiting for the 

 civil authorities. This is the doctrine of Rutherforth, 

 in his Institutes of Natural Law. See Book 1, chap. 

 19; Book 2, chap. 9. This is the doctrine expressed 

 by the maxim, "inter arma silent leges." 



"When the courts of justice be open, and the 

 judges and ministers of the same may by law protect 

 men from wrong and violence, and distribute justice 

 to all, it is said to be time of peace. So when 

 by invasion, insurrection, rebellion or such like, tho 

 peaceable course of justice is disturbed and stopped, 

 so as the courts be as it were shut up, et silent inter 

 arma leges, then it is said to be time of war." Coke 

 upon Littleton, as quoted in Law. Wheat. Int. Law, 

 p. 525. 



There is another maxim sometimes quoted in con- 

 nection with the above from Cicero, which deserves 

 a moment's notice: Salus papuli supremo, lex the 



ood of the individual must yield to that of the pub- 

 c. This maxim, also, is acted upon only locally and 



temporarily. Broom says of it: "Hence there are 

 many cases in which individuals sustain an injury 

 for which the law gives no action ; as when private 

 houses are . pulled down, or bulwarks raised on pri- 

 vate property, for the preservation and defence of the 

 kingdom against the king's enemies. The civil law 

 writers indeed say, that those who suffer have a right 

 to resort to the public for satisfaction, but no one 

 ever thought that the common law gave an action 

 against the individual who .pulled down the house or 

 raised the bulwark, and the reason is that a man may 

 justify committing the private injury for the public 

 good, as for instance, the pulling down of a house, 

 if necessary, in order to arrest the progress of a fire." 

 Broom's Maxims, p. 1. See the subject of this 

 maxim well discussed in 2 Kent, 338, et seq. 



These two maxims, and their application, illustrate 

 and define martial law, under absolute governments ; 

 and, for the purposes of the case at bar, we shall 

 concede the right to exercise that law, as thus defin- 

 ed and applied under our Government, limited, as all 

 its departments are, by a constitution. It is the law 

 of force, applied to govern persons and places whence 

 the civil law is expelled ; its officers rendered unable 

 to execute it, by forcible resistance. This right, 

 thus temporarily and locally to exercise martial law, 

 in case of necessity, is the war power of the Gov- 

 ernor of a State and of the President of the United 

 States, and it is all the war power that either pos- 

 sesses by virtue of which he can assume to govern 

 independently of the civil law; and this war power 

 each executive usually exerts through his subordi- 

 nate military officers. 



This may be further illustrated by examples. 



During the administration of Governor Wright, as 

 the Executive of this State, it was alleged that a re- 

 bellion existed in Clay county that the officers of 

 the civil law were overpowered by force. Governor 

 Wright, as commander-in-chief of the military pow- 

 er of the State, sent a military force to the county, 

 the commander of which, as the representative of 

 the Executive, would, if necessary, govern that lo- 

 cality by the war power, till the civil law could re- 

 sume its sway; but because there was forcible resist- 

 ance to law in Clay county, did that fact authorize 

 Governor Wright to overthrow the civil authorities 

 in the whole State, and assume unlimited arbitrary 

 power, to be exercised through military officers? 



During the administration of Washington, as Pres- 

 ident of the United States, a rebellion occurred in 

 Western Pennsylvania, on account of the excise 

 law; the civil power was overcome in that portion 

 of the State. General Washington sent thither a 

 military force, and, within the limits of the territory 

 from which the rebels had expelled the civil power, 

 and for just the time necessary to restore the ascend- 

 ency of that power, Washington, by his generals, 

 might have found it necessary to govern by the war 

 power. So Washington understood this question, 

 and he instructed his officers accordingly. See Ir- 

 ving' s Life of Washington, vol. 5, ch. 25. 



Rhode Island presents a different example, but 

 strictly within the same principle ; an example where 

 the rebellion was not local, but throughout the en- 

 tire State, and called into exercise the war power of 

 a Governor of the State. Rhode Island was govern- 

 ed upon a royal charter granted by King Charles the 

 Second. The people petitioned for a convention to 

 form a new and more democratic constitution. The 

 legislature, year after year, denied the petition. The 

 people finally took the subject into their own hands, 

 called a convention, formed a new constitution, and 

 were proceeding, a great majority of the people en- 

 gaging in the undertaking, in 1842, to overthrow, en- 

 tirely to extinguish the old government, and put the 

 new one into operation in its place. Force was re- 

 sorted to on both sides. The contest was not local, 

 but extended to every foot of territory in the State. 

 The legislature of the old government passed an act 

 authorizing the Governor of that government to en- 



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