MARTIAL LAW. "Martial Law" is a much misunderstood term, the use of which has given rise to a great deal of speculation.
Definition.—Much of the confusion and doubt about its mean ing and the powers exercisable in its name would have been avoided if modern writers had been careful to confine the term to its original meaning as used by Hale and Coke, namely, the law applied to the army and nothing else, the law known as "military law." Modern writers have appropriated the term "martial law" to the assumption of arbitrary powers by the Executive, in time of civil disturbances, over civilians, and have then proceeded to read earlier authorities by the light of its rays. The result is to darken their counsel and beget a gross anachronism. Hale (His tory of the Common Law, pp. 36-42) says of martial laws that "the necessity of good order and discipline in the army is that only which can give these laws countenance." He accordingly held that it could not apply to civilians in any circumstances.
The term was used in the same sense as Hale uses it in the famous Petition of Right, which forbade martial law in time of peace. The "Petition" did not thereby, either expressly or im
pliedly, legalize it in time of war. The contemporary debates in the House of Commons show that the men of those days did not contemplate the legality of martial law, as applied to civilians, under any circumstances. In objecting to martial law they were objecting to commissions issued by the king to try civilians as though they were soldiers subject to military law and triable by court-martial. As for soldiers themselves, the contemporary view was that at common law, even they were not, in time of peace, subject to martial law, i.e., to military law, except by statute (a view which now finds countenance in the necessity of the annual Army Act), although in the field, in time of war, they were so subject. Or to put it another way, martial law was pure military law, and as such unknown to the common law, and only came into existence with the outbreak of war and even then was confined to troops.