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Martial Law

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MARTIAL LAW is a series of regu lations made to preserve order and disci pline in the army, and enforced by the prompt decisions of courts-martial : this is generally however called military law. During the existence of a rebellion, when, in consequence of the ordinary processes of general law becoming ineffectual for the security of life and property in any province or state, the legislature has ap pointed that a military force shall be employed to suppress the disorders and secure the offenders; and when the trial of the latter takes place according to the practice of military courts, that province or state is said to be subject to martial law.

On the occurrence of such an event in any part of the British dominions, the two houses of parliament, jointly with the crown, determine that a temporary suspension of the Habeas Corpus Act shall take place. This measure is, of course, adopted only in cases of great emergency, on account of the abuses to which it may give rise ; and the necessity of it and the time of its duration are always stated in the provisions of the decree. The act by which martial law was declared in Ireland during the Re bellion in 1798 may be seen in Tytler's Essay on Military Law, Appendix, No. 6. In merely local tumults the military commander is called upon to act with his troops only when the civil authorities have failed in preserving peace; and the responsibility of employing soldiers on such occasions falls entirely upon the magistrate. The military officer must then effect by force what by other means could not be effected ; aud, for the con sequences, the officer can be answerable only to a military court or to the parlia ment of the nation.

The constitution of this country per mits a military law for the government of the army, even in times of internal tranquillity, to co-exist with the general law of the land. But the former applies to military persons only ; among these its jurisdiction comprehends all matters relating to the discipline of the army, to the cognizance of which the civil courts are not competent—as disobedience of orders, cowardice, &c. ; and extends to such crimes as desertion, mutiny, and holding correspondence with the enemy. On the other hand, every citizen who is not engaged in the military profession is subject to the general laws of the land alone, and is free from all the restraints which, by the necessity of preserving dis cipline, are imposed on the soldier : he is his own master, he can dispose of his time at pleasure, and the peculiar regu lations of the military service are, to him, as though they did not exist.

This distinction between the two classes of persons with respect to military law is clearly expressed in the Mutiny Act,' as it is called, which was first passed in the reign of William III. It is there stated that the subjects of this realm cannot be punished in any other manner than con formably to the common laws of the country. But an exception is imme diately made in the case of military per sons ; and there follow several enactments for the purpose of bringing soldiers who shall mutiny, excite sedition, or desert from the service, to a more exemplary and speedy punishment than the usual forms of law will allow.

Immediately after the Norman con quest of this country the military law consisted in the obligation imposed on the vassals of the crown to follow the king to the field, under penalty of a pecuniary fine or the forfeiture of their land. But

the first known record concerning the regulation of the army is believed to be i that which was made in the reign of King John ; and this relates chiefly to the purchase of provisions at the sales held for supplying the army with neces saries. The ordonnances of Richard H. and of Henry V., and the statutes of Henry VIII.. contain many useful rules for the government and discipline of the army. They prescribe obedience to the king and the commanders ; they award punishments for gaming, theft, and other crimes ; for raising false alarms in the camp, and for the seizure of religious persons. They also contain regulations concerning the disposal of prisoners taken in battle, and concerning the stakes, fascines, ladders, and other materials for military operations, with which the sol diers were to provide themselves. (Grose, vol. ii.) The early kings of this country do not appear to have exercised, generally, a discretionary power over the army ; for a statute of Edward I. states that the king had power to punish soldiers only according to the laws of the realm. The court of high constable and high marshal of England had for many years an ex clusive jurisdiction in all military affairs, and this was sometimes extended over the civil courts. But the power of that court was restrained by a statute in the reign of Richard II. (1386), and it sub sequently expired. From the time of Henry VII. till the reign of Charles I. the enactment of laws for the govern ment of the army depended on the king alone.

The excesses which, during the last mentioned reign, were committed by the undisciplined army which that ill-advised prince quartered on such of the people as had refused to lend money to the crown for raising them, led to the promulgation of a martial law, by which power was given to the magistrates to arrest and execute the persons guilty of murders, robberies, and other crimes, as in time of war. The petition of right abolished martial law for a time in this country, but it was subsequently restored by the parliament, and several ordinances of great severity were during the inter regnum enacted respecting the mainte nance of discipline. In the beginning of the reign of James II., after the rebellion of the Duke of Monmouth, several exe cutions took place by martial law ; and this may be said to have been the last occasion on which the law was exercised in Great Britain. At the time of the Re volution the present regular code was established for the government of the army; and this, under the name of the Mutiny Act, has ever since been annu ally renewed by The Romans, in time of danger to the state, were accustomed to suspend the law by conferring unlimited power upon the consuls by the formula, " Videant consules ne quid respublica detrimenti capiat" (Sallustius, Catil. c. 29). In the case of Catiline's conspiracy many of the conspirators were seized and put to death without a regular trial.

(Grose, Military Antiquities; Tytler's Essay on Military Law, by Charles James ; Samuel, Historical Account of the British Army ; Major Adye, Treatise on Military Law ; Major-General C. J. Napier, Remarks on Military Law.) [COURT-MARTI