What is martial law?
[From the Memphis Appeal.]
A considerable diversity of opinion prevails in regard to martial law, his character, extent, and instrumentalities.
Many persons suppose that military law is martial law. This is an error.
The former is a code of laws prescribed for the government of the army.
It relates exclusively to persons attached to the military service, and does not, in its operations, embrace those engaged in ordinary civil employment.
Martial law, on the contrary, embraces every description of persons within the city or district over which it had been established.
It is not defined and ascertained by enactments and judicial decisions, as in the case of military law, but springs from the will and judgment of the commandant whose duty it is to enforce it. It supercedes the ordinary instrumentalities of courts, such, as judges, juries, and sheriffs.
It may even suspend, for the time being, the great writ of
habeas corpus. In other words, martial law may be said to be no law at all, but rather the will of the military commandant, regulated, it is true, by an enlightened regard for the general welfare.
Its true intent and aim is to place all power, as well as all resources of the district, in the hands of the military authorities, to be used and wielded against the public enemy.
It will thus be seen that the object had in view is the public weal, and that if we are restrained of any portion of our accustomed rights, it is done for our own good, as well as for the general safety.
This consideration alone should reconcile as to any inconveniences that may result from the establishment of martial law.
It is 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 willful injury be done to person or property, the party by whom or whose order it is done, will be responsible to the injured person."
A review of the legal authorities would seem to conduct to the conclusion, that a military officer cannot declare martial law except over his own camp and its environs, and the near field of his military operations.
Such was the opinion of
Judge Woodbury, who said:
‘
"My impression is, that a state of war, whether foreign or domestic, may enlist in the great peril of which it is competent under its rights and on principles of national law, for the
commanding officer of troops, under the controlling government to extend certain right of war not only over his camp, but its environs, and the near field of his military operations, but no further or wider."
’
The best opinion would seem to be that in time of war, the
Government, by act of Congress, may place the country under martial law in a limited and mitigated sense; though there has been much controversy upon the limitation of the power.
So also, in the language of
Judge Woodbury, the
commanding officer of troops may "extend certain rights of war, not only over his camp, but the environs and the near field of his military operations." Beyond this, neither the
Government nor the
military commander can properly go.
Nothing but imminent peril to the army, arising from the near presence of the army, can authorize the commander to suspend or arrest 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 commander.
There are but two instances in which martial law was resorted to under the old Government.
The first was in New Orleans, in 1862, when
Gen. Jackson took the authority, against the opinion of
Edward Livingston, one of the ablest jurists of his day to place that city under martial law. The second was in 1862, and occurred in
Rhode Island during what is known as the Dorr rebellion.
