What is Martial Law?

Martial Law is simply military authority exercised in accordance with the laws and usages of war.

What is Military Jurisdiction (The First Viewpoint)?

Military jurisdiction is of two kinds:

1. That which is conferred and defined by statute; and
2. That which is derived from the common law of war.

Military offences under the statute law must be tried in the manner therein directed, but military offences which do not come within the statute must be tried and punished under the common law of war.

The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country.

In the armies of the United States the first is exercised by courts-martial, while cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial, are tried by military commissions.

The Second Viewpoint of Military Jurisdiction

In the case of ex parte Milligan (4 Wall., 2). Chief Justice Chase, in a dissenting opinion which did not affect the merits of the case under consideration, drew a distinction in military jurisdiction as follows:

There are under the Constitution three kinds of military jurisdiction:

• One to be exercised in both peace and war;
• Second to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion or civil war within States or districts occupied by rebels treated as belligerents; and
• Third, to be exercised in time of invasion or insurrection within the limits of the United States or during rebellion within the limits of States maintaining adhesion to the National Government when the public danger requires its exercise.

What is the Distinction Between the Three?

• The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces;
• The second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President with the express or implied sanction of Congress;
• The third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress can not be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

This distinction has never since been sustained by the Supreme Court, although military writers have made use of the term “military government” to designate the jurisdiction exercised over enemy territory by the military regarding, enemy territory to include that of a foreign state and also that part of the belligerent state that has been accorded recognition of belligerency, and “martial law” to designate the jurisdiction exercised by the military power over parts of the dominant state that is in rebellion or insurrection without being recognised as belligerents, or, in a word, treating “martial law” as a domestic fact. (Vide Military government and Martial law, Birkhimer p.21, 2nd ed.)

The term “martial law” as defined in the text conforms with that given in Great Britain, where the same distinction is made between “military law,” “martial law,” and “martial law in the home territory.” (Vide Law of War on Land, Holland. pp.14-17; vide also Jour. Nil. Ser. Inst., Vol. XV, article by Carbaugh.)

The Third Viewpoint of Military Jurisdiction

Vide Justification of Martial Law, by G. Norman Lieber, p.3, who says:

“Military jurisdiction is of four kinds, viz:

1. Military law, which is the legal system that regulates the government of the military establishment. Military law is a branch of municipal law, and in the United States derives its existence from specific constitutional grants.
2. The law of hostile occupation, or military government, as it is sometimes called; that is, military power exercised by a belligerent over the inhabitants and property of an enemy’s territory occupied by him. This belongs to the law of war, and, therefore, to the law of nations.
3. Martial law applied to the army; that is military power extended in time of war, insurrection, or rebellion over persons in the military service, as to obligations arising out of such emergency, and not falling within the domain of military law nor otherwise regulated by law. It is an application of the doctrine of necessity, founded on the right of national self-preservation.
4. Martial law at home, or as a domestic fact; by which is meant military power exercised in time of war, insurrection, or rebellion, in parts of the country retaining allegiance, and over persons and things not ordinarily subjected to it.”

Does Martial Law Extend to Property and Persons?

Martial law extends to property and to all persons in the occupied territory, whether they are subjects of the enemy or aliens to that government.

What About Individual Offenders?

Whenever feasible, martial law is carried out in cases of individual offenders by military courts; but sentences of death shall be executed only with the approval of the Chief Executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the commander of the occupying forces.

References

General Order 100 (1863) Articles 4, 7, and 12.

US Army. (1914) Rules of Land Warfare. Available from World Wide Web: http://www.loc.gov/rr/frd/Military_Law/pdf/rules_warfare-1914.pdf. [Accessed: 28 September, 2015].

Vide als infra Chaps. VIII and IX.