MARTTA T. LAW (ante) must be distinguished from both military law and military government. The last denotes the rule of a conquered or insurrectionary district by military authority, while military law is that branch of the law which regards military discipline and the government of persons employed in the military service. Martial law, says Kent, supersedes and suspends the civil law, but military law is superadded and subordinate to the civil law. As good a definition as any of martial law, which is in its nature somewhat indefinite, is that given by prof. Joel A. Parker, in the North American Retii3W, Oct., 1861. "It is," he says, " that military rule and authority which exists in time of war, and is conferred by the laws of war, m relation to persons and things under and -svithin the scope of active military operations, in carrying on the war; and which extinguishes or suspends civil rights and the remedies founded on them, for the time being, so far as it may appear to be necessary, in order to the full accomplish ment of the purposes of war." It will be seen that martial law is in the highest degree arbitrary and capable of abuse. It may be decreed at will by competcnt military author ity, and the only rule as to the propriety of its being established is the test of necessity. The duke of Wellington, from his place in the English house of lords, deprecated its employment, except under the most urgent pressure, and then only with great modifi cations.
In a celebrated Ceylon case the late lord chief-justice Cockburn was very reluctant to admit that civil law could be superseded by court-martial, except where, as in India, the military government was absolute; but in the same case Blackburn, J., laid down the dictum universally accepted in the TJnited States, that martial law is derived from statutory provisions and founded on paramount necessity. Thus the question as to its
nature is closely connected with the manner of its exercise, and this again with the responsibility for such exercise. As to its extent, we may refer to a decision of the U. S. supreme court in the case of _Neal Dow v. Bradida Jokns(m, October term, 1879. It was held: that an officer of the United States, while in service in an enemy's country, was not liable to an action in civil courts for acts done in pursuance of a superior's orders; and when any portion of an enemy's country was in the military possession of the United States, the municipal laws were to be continued in force and administered through the ordinary channels for the protection and benefit of the inhabitants and others not in military service, but not for the protection or control of army officers or soldiers. In the supreme court of Missouri it has been held that the act of congress making the order or authority of the president a good defense for acts done or left undone during the rebellion, is unconstitutional (64 Mo., 564). Where an inferior con federate officer, under the orders of his superior, destroyed large quantities of spirits to preserve the discipline of his command, the courts of Mississippi held that such order was no defense in an actios for damages brought after the close of the war.
The whole subject of the relations of the civil and military authorities in time of war, and especialiy the constitutionality of acts passed distinctly as war measures, is of great interest, and,while much may be res juthicata, there are many points not yet clearly determined.