The Exercise of Martial Law

THE EXERCISE OF MARTIAL LAW Cockburn, C. J., was unquestionably right in holding (see his observations in the Queen v. Nelson, Finlasson's edition, p. 66) that the Petition of Right condemned the exercise of martial law against the subject "under any circumstances," whether in "war" or in "peace," and even as against soldiers except in the case of armies in time of war. The promoters of the Petition of Right were solely concerned to assert the supremacy of the common law. Even a rebel, they argued, taken with arms in his hands, had a right to be tried by the ordinary common law courts. If he could not be so tried, the law was then altogether suspended. They did not trouble themselves with the question with which modern lawyers are so greatly vexed, namely as to whether there could exist a kind of qualified "state of war" under which the courts might still be sitting, but in circumstances of military indulgence such as would bind them not to interfere. This modern view has helped to give a colour of legality to martial law which would have been incomprehensible to the Stuart generation, denying, as they did, the very existence of the thing except within the de terminate limits of military law.

Early Views.

The 17th century view as to the position of the ordinary courts was clear and unequivocal. It was that if the civilian situation was such that the courts were able to sit at all, the judges were free to examine every arbitrary act of the military on its merits. If the civil situation was so "warlike"—the term "war," in connection with martial law, does not mean war in the international sense, but war in the sense of rebellion or civil strife, as in the Statute of Treasons where it is declared to be treason for a subject to "levy war" against the king in his realm—that the courts could not sit, the king's writ did not run, and the sheriffs and ministers of justice could not levy execution, then such facts constituted a state of war (cf. Coke, Institutes I.,

249 b). But the existence of such facts must be proved to the satisfaction of the courts, if and when they were able to sit. The courts could thus, either at the time or after, decide whether the military measures taken to suppress the civilian commotion ex ceeded the necessity of the case, in precisely the same way as the courts always decide how far civilians and police are justified in using force to encounter and suppress force. The mere fact that the military, for the more instant suppression of the disturbances or the rebellion, have "tried" the rebels by court-martial in no way implies that those "trials" are lawful or that any law has been administered. A trial by martial "law" is a purely executive act. It is for this reason that the civil courts have no jurisdiction to review the "judgments" of such bodies by way of appeal—the memorandum of their proceedings is not the record of a court of justice (cf. A. G. v. Van Reenen [19o4], A.C. ii7). The so-called courts-martial, convened to try civilians under martial law, cannot, as two law officers long ago pointed out (see Forsyth, Cases and Opinions in Constitutional Law, p. 555), be properly described as courts at all. The way to seek relief from a sentence of such a tribunal is not by writ of prohibition or by appeal, but by an application for a writ of Habeas Corpus (cf. Lord Sumner in the recent Irish case Re Clifford and O'Sullivan [1921], 2 A.C. 57o).