MILITARY LAW.) BiamoRApsy.—Morgan and Baty, War, its Conduct and Legal Re In the United States, martial law, as distinguished from mili tary law, is the temporary government and control, under a body of principles or doctrines, by the military authorities, of a Territory or a State in which, by reason of war, or overwhelming public disturbance, the Territory or State is unable to preserve order or enforce its law. (In re Kemp, 16 Wis. 3o9, 368, and Ex parte Milligan, 1866, 4 Wallace 2.) Its authority depends upon a state of complete insurrection and terminates when the insurrection ends, or a reasonable time thereafter. (In re Moyer, 85 Pac. Boon v. Aetna Insurance Company, 4o Conn. 575, 584.) Martial law is not provided for in the U.S. Constitution, except by infer ence, but is rather a means of preserving the Constitution. It is the law of necessity and asserts itself.
Where the civil courts are open and able to exercise their func tions, with the aid of the military if necessary, there can be no exercise of martial law. (But see State Ex Rel. Mays v. Brown, 45
L.R.A., N.S. 996.) When martial law prevails martial-law courts, provost courts, military commissions or other courts of the mili tary commands may punish those guilty of acts which obstruct the military in its enforcement of order. This authority ends with the cessation of hostilities. Martial law may be exercised in time of war only, and within the theatre of war, and where the civil courts are wholly unable to exercise their functions. It found its use in the United States in New Orleans in 1815, in the border States in 1861-65, and during the World War. The use of the military forces to aid the civil power has its justification in law, while mar tial law finds its justification in necessity.
BIBLIOGRAPHY.—Hare, American Constitutional Law; "Lieber's Jus tification of Martial Law Theory," North American Review (1896) ; Winthrop, Military Law and Precedents; Birkhimer, Military Govern ment and Martial Law; W. E. Hall, International Law. (F. W. HA.)