Martial Law

Martial Law in the United States

Introduction

Martial Law, in the United States, conduct in part or in whole of government in domestic territory by military agencies, with the consequent supersession of some or all civil agencies.

Martial law derives its justification from the need, when civil authority is inadequate, to use military force to suppress insurrection, riot, or disorder, or to deal with public calamity. Inasmuch as martial law is called forth by necessity, the extent and degree to which it may be employed and may supersede civil authority also are measured by necessity. In the U.S., the military force that is used may be furnished by either the federal or state government. Martial law in the U.S. is not a statutory body of law as is military law, which is the system of rules governing military personnel at all times. Although the U.S. Constitution and statutes set forth certain situations in which federal military force may be used to quell disorder, martial law is essentially a branch of the common law.(Source: “Martial Law,” Microsoft® Encarta® Online Encyclopedia 2000)

Martial Law and the Courts

The civil courts have the ultimate responsibility for determining the limits of martial law and whether or not those limits have been overstepped in particular cases. Yet for many years it was believed that the acts of the military were not subject to review by the civil courts, and that, once martial law was proclaimed, civil law was superseded and civilians became triable by military commissions. In part this belief was based on a statement by the U.S. Supreme Court in the case Moyer v. Peabody, which was decided in 1909. The court stated, “… the Governor’s proclamation that a state of insurrection existed is conclusive of the fact.” Numerous state courts adopted this view and refused to hear cases involving martial law. In 1932, however, the Supreme Court in Sterling v. Constantin held as follows: “What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Following that decision both state and federal courts have enjoined the use of military force where no justification was shown to exist.

Martial law in the U.S. may or may not involve the suspension of the privilege of the writ of habeas corpus. In many instances, the privilege of the writ has not been suspended, and judicial inquiry into the cause of a detention by the military has been held pursuant to a writ. In most such instances, however, the petitioner has been remanded to military custody by the court on a showing that the facts warranted detention. Inasmuch as martial law depends for its validity on necessity, a proclamation of martial law is not a prerequisite.(Source: “Martial Law,” Microsoft® Encarta® Online Encyclopedia 2000)

History

See History of Martial law in the U.S..

Martial Law Definition

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 carrying on the war, and which extinguishes or suspends civil rights and the remedies founded upon them, for the time being, so far as it may appear to be necessary in order to the full accomplishment of the purposes of the war. Prof. Joel Parker, in N. A. Rev., Oct., 1861. It depends on the just but arbitrary power and pleasure of the king, who may not make laws without the consent of parliament, yet in time of war, by reason of the necessity of it, to guard against dangers that often arise, he uses absolute power; so that. hiS’ word is law. 21 Ind. 377. ‘ The phrases, “martial law” and “military law,” are sometimes carelessly used as meaning the same thing, but there is a broad distinction between them. Acting under constitutional authority, congress has passed divers acts prescribing the rules and articles of war, which constitute the military law, but apply only to persons in the military or naval service of the government. Martial law, when once established, applies alike to citizens and soldiers. In a proper sense it is not law, but merely the will of the military commander, who is responsible to his government or superior officer. Hale’s Hist. C. L. 54. War being simply an appeal to force, necessarily suspends and displaces the ordinary laws, and martial law prevails as an inavoidable necessity to restrain disloyal acts and preserve the authority of the government. This is true not only in the actual field of military operations, but also in remote districts where the inhabitants may be so far in sympathy with the public enemy as to obstruct the administration of the laws by the civil tribunals and render resort to military power necessary. But -Wfhere the civil courts, in the midst of loyal communities, are exercising their ordinary jurisdiction, the appeal to the military arm or to martial law is needless. 44 111. 159,

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Legal Issue for Attorneys

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 carrying on the war, and which extinguishes or suspends civil rights and the remedies founded upon them, for the time being, so far as it may appear to be necessary in order to the full accomplishment of the purposes of the war. Prof. Joel Parker, in N. A. Rev., Oct., 1861. It depends on the just but arbitrary power and pleasure of the king, who may not make laws without the consent of parliament, yet in time of war, by reason of the necessity of it, to guard against dangers that often arise, he uses absolute power; so that. hiS’ word is law. 21 Ind. 377. ‘ The phrases, “martial law” and “military law,” are sometimes carelessly used as meaning the same thing, but there is a broad distinction between them. Acting under constitutional authority, congress has passed divers acts prescribing the rules and articles of war, which constitute the military law, but apply only to persons in the military or naval service of the government. Martial law, when once established, applies alike to citizens and soldiers. In a proper sense it is not law, but merely the will of the military commander, who is responsible to his government or superior officer. Hale’s Hist. C. L. 54. War being simply an appeal to force, necessarily suspends and displaces the ordinary laws, and martial law prevails as an inavoidable necessity to restrain disloyal acts and preserve the authority of the government. This is true not only in the actual field of military operations, but also in remote districts where the inhabitants may be so far in sympathy with the public enemy as to obstruct the administration of the laws by the civil tribunals and render resort to military power necessary. But -Wfhere the civil courts, in the midst of loyal communities, are exercising their ordinary jurisdiction, the appeal to the military arm or to martial law is needless. 44 111. 159,

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This definition of Martial Law Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..

Martial Law

Introduction to Martial Law

Martial Law, in the United States, conduct in part or in whole of government in domestic territory by military agencies, with the consequent supersession of some or all civil agencies.

Martial law derives its justification from the need, when civil authority is inadequate, to use military force to suppress insurrection, riot, or disorder, or to deal with public calamity. Inasmuch as martial law is called forth by necessity, the extent and degree to which it may be employed and may supersede civil authority also are measured by necessity. In the U.S., the military force that is used may be furnished by either the federal or state government. Martial law in the U.S. is not a statutory body of law as is military law, which is the system of rules governing military personnel at all times. Although the U.S. Constitution and statutes set forth certain situations in which federal military force may be used to quell disorder, martial law is essentially a branch of the common law.” (1)

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