MARTIAL AND COMMON LAW The truth of the matter is that the term martial law is really an anachronism and legally means nothing at all. Martial law is simply, as Fitzjames Stephen put it, "the assumption by the officers of the Crown of absolute power exercised by military force for the suppression of an insurrection and the restoration of order and lawful authority." It should never be resorted to for punish ment except in so far as immediate punishment is necessary for suppression of the disturbance. The moment the disturbance is over, the prisoners should be handed over to the civil power. The very fact that it means the assumption of "absolute power" renders it subject to the control of the courts ab initio. A mere "proclama tion" of martial law by the Crown has, of itself, no legal validity whatsoever. A proclamation is not necessary to justify resort to martial law nor is the resort to martial law justified by it. It is all a question of fact. One must thus carefully distinguish be tween the prerogative of the Crown to declare war with a foreign country and the alleged prerogative—there is none—to declare the realm internally in a state of war, i.e., a state of rebellion. The former is absolute and binding on the courts (see PREROGA TIVE) who cannot question it ; the latter is not binding on the courts at all and they may, whenever the Crown proclaims a "state of war" within the country, go behind the proclamation and enquire (I) whether, as a question of fact, there is such a state of affairs and (2) whether the acts done by the authorities in putting down such war, if it exists, are justified. There can be no doubt about this, but it is still a matter of some dispute whether, once they are satisfied that a state of war exists, the courts, if sitting, can, during the actual continuance of disturbance, inter fere with the action of the military authorities.
In the famous Merais case, A.C. (1902) 109, the Council, discarding Coke's doctrine that the fact that the courts were still able to sit did not establish ipso facto the absence of the state of war, went on to lay down that the courts should not interfere with the discretion of the military authorities, e.g., by granting a writ of Habeas Corpus, to anyone detained by them, while war was actually raging, but that they might enquire afterwards into the validity of the acts done by the military. To the writer of this article, the distinction seems untenable. It amounts to the paradoxical contention that the common law is, for the time being, neither quick nor dead but merely passive ; the "necessity" of the moment is held to be too overwhelming to permit of a contem poraneous enquiry but not so overwhelming as to forbid a retro spective one ; "we cannot interfere now"—such appears to be the argument—f or, to do so, would be to assume responsibility for and lend countenance to the acts of the military authorities, but we reserve our right to do so afterwards." If this view is to pre
vail, it would make it possible for the military authorities to con tract and expand the geographical area of their martial law juris diction at will, with the common law courts merely looking on.
The older doctrine, which received statutory countenance in American cases (cf. Ex parte Milligan [1866], 4 Wallace 2, and the dissentient judgment of Mr. Justice Woodbury in Luther v. Borden 7 How. I), was that nothing short of the complete suppression of civil authority and the closing of the courts—in other words, such overwhelming necessity as silences the voice of justice altogether—could establish martial law. The view taken in the Marais case seems to proceed on the assumption that the judiciary exists by sufferance of the Executive; it goes very near i a repudiation of jurisdiction altogether, and in that respect is perilously like the discredited doctrine of "act of state." It is difficult, if one accepts the doctrine of the Marais case, to escape the conclusion in the American case of Luther v. Borden (although that case be turned on a different point) : "If this right [of inter ference] does not reside in the courts when the conflict is raging, and if the judicial power is, at that time, bound to follow the de cision of the political, it must equally be bound when the contest is over; it cannot, when peace is restored, punish, as offences and crimes, the acts which it before recognized and was bound to rec ognize as lawful." In other words, it seems more reasonable to hold that the common law persists throughout the disturbances and that the courts can interfere at any stage. Whether they should do so must depend on the merits of the particular case. They certainly should not interfere if, in the particular situation, their interference is calculated to hamper, delay and embarrass the military authorities in the suppressing of the rebellion, and thereby to prolong it. During the Irish disturbances of 1922, the Irish courts, however, followed and applied the doctrines of the Marais case (cf. Higgins v. Willis [1924], 2 Irish Rep.