MARTIAL LAW. That military rule and authority which exists in time of war, and is conferred by the laws of war, in relation to persons and things under and within the scope of active military operations, in car rying on the war, and which extinguishes or suspends civil rights and the remedies found ed upon them, for the time being, so far as it may appear to be necessary in order tli the full accomplishment of the purposes of the war. Prof. Joel Parker, in N. A. Rev., Oct 1861.
Martial law is not mentioned by that name in the constitution or statutes of the United. States; practically the essence of martial law is the suspension of the privilege of habeas corpus, and the two have been practically regarded as the same thing. See 1 Halleck, Int. L. 549 ; HABEAS CORPUS.
The instructions for the government of the United States army, 1863, define martial law as "simply military authority exercised in accordance with the laws and usages of war." It is proclaimed by the presence of a hostile army, and is the immediate and di rect effect of occupation or conquest ; sus pending the civil and criminal law and the domestic government of the occupied place.
It supersedes all civil proceedings which conflict with it ; Benet, Mil. Law ; but does not necessarily supersede all such proceed ings.
It extends, at least, to the camp, environs, and near field of military operations ; Luther v. Borden, 7 How. (U. S.) 83, 12 L. Ed. 581; Johnson v. Duncan, 3 Mart. 0. S. (La.) 530, 6 Am. Dec. 675 ; 6 Am. Arch. 186 ; and see, also, 2 H. Bla. 165 ; 1 Term 549 ; 1 Knapp, P. C. 316; Mitchell v. Harmony, 13 How. (U. S.) 115, 14 L. Ed. 75 ; but not extend to a neutral country ; People v. McLeod, -1 Hill (N. Y.) 377, 37 Am. Dec. 328 ; People v. McLeod, 25 Wend. (N. Y.) 483, 512, n., 37 Am. Dec. 328. Nor in time of insurrection can it be applied to citizens in states in which the courts are open and their process unobstructed ; Ex parte Milligan, 4 Wall. (U. S.) 2, 18 L. Ed. 281. It is founded on par amount necessity, and imposed by a military chief ; 1 Kent 377, n. For any excess or abuse of the authority, the officer ordering and the person committing the act are liable as trespassers ; • Mitchell v. Harmony, 13
How. (U. S.) 115, 14 L. Ed. 75 ; 1 Cowp. 180.
Martial law must be distinguished from inilaary law. The latter is a rule of gov ernment for persons in military service only, but the former, when in force, is indiscrim inately applied to all persons whatsoever ; De Hart, Mil. Law 17.
This distinction has not been observed and is not observed in the definition of Prof. Par ker, above quoted. Sir F. Pollock, in a let ter to the London Times, reprinted in 64 Alb. L. J. 207, and in 18 L. Q. R. 152, after pointing out that "martial law," in the ear lier books, down to the end of the 17th cen tury, if not later, is what is now called "mil itary law"—the rules of the governance of armies in the field and other persons within their lines or included in the region of their active operations—points out that it is the duty of all lawful men to defend the state against the king's enemies whenever and wherever there is a state of war within the realm and, in doing so, to do various acts which would otherwise be trespasses. This duty is not specifically vested in military of ficers; its exercise requires to be justified ou every occasion by the necessity of the case, which is a quetion, after the restora tion of peace, for the ordinary courts of justice ; and, as in every common-law justi fication, the burden of proof is on the person justifying. He gives the following as his conclusions; Martial law, as distinct from military law, is the justification by the com mon law of acts done by necessity for the defence of the commonwealth when there is war within the realm. Such acts are not necessarily acts of force and restraint. They may be preventive as well as punitive The justification of any particular act done in a state of war is ultimately examinable in the ordinary courts, and the question of whether there was a state of war at a given time and place is a question of fact. There may be a state of war at any place where aid and comfort can be effectually given to the enemy, having regard to the modern con ditions of warfare and means of communi cation.