MARTIAL LAW ; COURT-MARTIAL; MILITARY JURISDICTION.
The law is found in the acts of congress, particularly the Articles of war, the Army Regulations and in the customary Military Law ; Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236.
The act of 1806 consists of three sections, the first section containing one hundred and one articles, which describe very minutely the various military offences, the punish ments which may be inflicted, the manner of summoning and the organization of courts martial. These articles are called the ar ticles of war. Their provisions extend to the militia mustered into the United States serv ice, and to marines when serving with the army. They have been changed from time to time. Reference must be had to the stat utes and the Army Regulations, The military law of England was con tained in the Mutiny Act, which has been passed annually from April 12, 1689, to 1879, when the Mutiny Act was consolidated with the articles of war, and this act was amend ed in 1881 by the Army Act (see MUTINY Aar), and the additional articles of war made and established by the sovereign. 2 Steph. Com. 589.
In addition, there are in both countries various usages which constitute an unwrit ten military law, which applies to those cases where there are no express provisions. Mar tin v. Mott, 12 Wheat. (U. S.) 19, 6 L. Ed. 537; Ben5t, Mil. Law 3.
"Martial law [that is, military law] is the will of the general who commands the army. It can be indulged only in cases of necessity and ceases when the necessity ends. When called in question, the necessity must be af firmatively shown by the power seeking to exercise it." In re Eagan, 6 Parker, Cr. R. (N. Y.) 675, id., 5 Blatchf. 319, Fed. Cas. No. 4,303 (a case arising in 1865 in South Caro lina).
When the territory of the states which were making war against the national gov ernment was in the military occupation of the United States, military tribunals under the statute and under the laws of war had exclusive jurisdiction to try and punish of fences of every grade committed there by persons in the military service. Officers and soldiers of the army were not subject to the laws of the enemy nor amenable to its tribunals for offences committed by them during the war. They were answerable only
to their own government, and only by its laws, as enforced by its armies, could they be punished; unless superseded by the com mander of the forces of occupation, the laws of the state, as between the inhabitants, re main in force and the courts continue to ex ercise their jurisdiction ; Coleman v. Ten nessee, 97 U. S. 509, 24 L. Ed. 1118.
Where actual war is raging, acts done by the military authorities are not justiciable by the ordinary tribunals ; the military tri bunals are alone competent to deal with such questions. The fact that for some purposes some tribunals had been permitted to pursue their ordinary course is. not conclusive that war is not raging. Neither an application for summary release from extraordinary ar rest nor an action for anything done as an extraordinary act of necessity will be enter tained by the ordinary courts during the con tinuance of a state of war in the jurisdiction, when the court is satisfied that a responsible officer acting in good faith is prepared to justify the act complained of ; [1902] A. C. 109.
A soldier in time of peace is subject to the civil authority and may be arrested and detained for violation of municipal ordi nances, and if his punishment tends to inter fere with his military duties, any unfair dls •crimination against him, or departure from the strict requirements of the law, or any unusual punishment may justify his release on habeas corpus ; Ex parte Schlaffer, 154 Fed. 921.
Where a soldier on a military reservation had been convicted of an offence, and at tempted to escape and was killed by a ser geant, it was held that if the act was in com pliance with his supposed duties as a soldier and in good faith, without malice, the ser geant was protected ; U. S. v. Clark, 31 Fed. 710.
If a sergeant of the guard when he shoots a prisoner has reasonable ground to believe and does believe that the act was necessary to the suppression of a mutiny, he is jus tified ; and he is not bound to weigh with scrupulous nicety the amount of force neces sary to suppress disorder. The exercise of a reasonable discretion is all that is required; U. S. v. Carr, 1 Woods 480, Fed. Cas. No. 14, 732.
See MILITIA ; ARTICLES OF WAR; COITET MARTIAL; MARTIAL LAW.