Martial law exists wherever the militant arm of the government is called into service to suppress disorder. When a governor calls out the militia for this purpose in a district affected by a strike, it is a declaration of qualified martial law. It is qualified in that it only extends to the preservation of peace, and not to the ascertainment of private rights or other functions of government. The ordinary civil officers who preserve order are subordinated to the military arm, which is governed military law, and as to which there is no limit but the necessities of the situation. In this respect there is no differ ence between a public war and domestic in surrection. The paramount law of self de fence has established the rule that whatever force is necessary is lawfpl ; Com. v. Short all, 206 Pa. 165, 55 Atl. 952, 98 Am. St. Rep. 759, 65 L. R. A. 193, with a full note of his torical value.
In case of insurrection and rebellion, the governor or military officer in command may suspend the writ of habeas corpus and dis regard it if issued; the proclamation of the governor declaring a county in a state of rebellion and calling United States military forces to his aid, puts in force martial law therein ; In re Boyle, 6 Idaho 609, 57 Pac. 706, 45 L. R. A. 832, 96 Am. St. Rep. 286.
A military officer called to aid the civil authorities has no power to act independent ly of them. The military, in such case, are armed police only, subject to the absolute control of the magistrates and other civil officers. The colonel of a regiment, as a colonel, has no more a public office than any soldier or member of a sheriff's posse ; State v. Coit, 8 Ohio'S. & 0. P. Dec. 62; 85 Pa. 462.
In the leading case of King v. Pinney; 8 B. & Ad. 947, it was held that a magistrate, who called upon soldiers to suppress a riot, was not bound to go with them in person.
See as to martial law, 18 L. Q. R. p. 11,7, by Holdsworth ; p. 133, by Richards; p. 152, by Sir F. Pollock ; Dicey on the Con stitution.
In the report of a committee appointed by the Prime Minister in 1893, of which Lord Bowen and Mr. Robert B. (now Lord Chan
cellor) Haldane were two of the three mem bers, it was said : "Officers and soldiers are under no special privileges and subject to no special responsibilities as regards this princi ple of the law. A soldier, for the purpose of establishing civil order, is only a citizen arm ed in a particular manner. He cannot, be cause he is a soldier, excuse himself if with out necessity he takes human life." In Steph. Dig. Crim. Law, this position is taken : "In all cases in which force is used against the person of another, both the per son who orders such force to be used and the person using that force is responsible for its use, and neither of them is justified by the circumstance that he acts in obedience to or ders given him by a civil or military su perior; but the fact that he did so act, and the fact that the order was apparently law ful, are in all cases relevant to the question whether he believed, in good faith and on reasonable grounds, in the existence of a state of facts which would have justified what he did apart from such orders, or which might justify his superior officer in giving such orders." In a note, the author states that such acts as shooting peaceable people wantonly, or a child of four years old intentionally, even in a riot, •would be murder in a soldier as well as in his officer, could not be doubted ;. a soldier is bound to disobey an order in such case. This princi ple is "essential to the maintenance of the supremacy of the common law over military force." • See Benet ; Hopwood, Mil. and Mart. Law ; Hall, Int. Law ; 1 Hale, Pl. Cr. 347; Mc Arth. Courts Mart. 34 ; 29 L. Mag. & Rev. 24 ; Tytl. Courts Mart. 11, 58, 105; Hough, Mil. Courts 349 ; O'Brien, Mil. Law 26; 3 Web ster, Works 459; Story, Const. § 1342 ; 8 Opin. Atty. Gen. 365 ; Com. v. Blodgett, 12 Mete. (Mass.) 56; Johnson v. Duncan, 3 Mart 0. S. (La.) 531, 6 Am. Dec. 675 ; Luther v. Borden, 7 How. (U. S.) 12 L.
Ed. 581 ; MILITARY LAW.