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The chief object of this treatise is to present to the reader the subject of Military Law as accepted at the present time in our Army; but we are met at the very outset with a difficulty arising from the confounding of this subject with another, entirely different,—Martial Law. For a long number of years all military jurisdiction was generally termed “Martial Law," and it was not until about the commencement of the present century that a distinction between Military and Martial law was recognized. This distinction is now universally conceded, but we still find the British Parliament passing an annual vote for the “administration " not of Military but “ of Martial Law," and each succeeding government has appointed, under patent from the Crown, a "judge martial” paid out of this vote, who wholly disclaims having any other knowledge of “ Martial Law” than such as every educated gentleman may possess, or anything whatever to do with any other than “Military Law.” 1 In our own country, also, we find noted jurists using these terms interchangeably, speaking of Martial when they mean Military law, and

· Clode's Military and Martial Law, p. 157.

the reverse. All this has tended and still tends to a confusion from which we must free ourselves before proceeding to the main object of the text.

In the United States especially is the difference between these two subjects marked. The jurisdiction under the two is derived from different constitutional grants ; is exercised by different courts; and is applicable, as a rule to a different class of persons. Military law relates to the government and discipline of the military forces of a state, while Martial law has for its object something entirely different.

To understand Martial Law fully we must distinguish between it as a foreign or international fact, and the same thing as a domestic or municipal fact.'

1st. As a Foreign Fact. When a belligerent occupies the territory of an enemy, he has a right by international law to govern it. The political law, so far as the nature of the case demands, is suspended, and military authority supersedes it. If any local courts or authority continue to subsist, it is only through the permission of the commander.

The rule, in this country, is that all civil and penal law shall continue to take its usual course in the enemy's places and territories so occupied, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provincial, or local character, cease, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader.?

When General Scott occupied Mexico he required the magistrates of the country, municipal or judicial, to continue to administer the laws of the country among their

I VIII. Opinions Att'y Genl. p 369. ? G. 0. 100, 1863, § 6.

countrymen, but in subjection to the military power. Offenses of Mexicans against soldiers, or of soldiers against Mexicans or against each other, not provided for in the articles of war, were to be tried by military commissions."

We have said, in cases of this kind, that military authority is substituted. By this is meant the military authority of the commander, with the sanction of his sovereign : and, in our armies, his authority under the direction of the President with the express or implied sanction of Congress. This authority must, however, be exercised in accordance with the laws and usages of war.

Such government is without doubt a form of Martial Law, but the term Military Government would seem a better one for cases of this kind.s

20. As a Domestic Fact. Under this heading two cases present themselves :

(a) Cases of insurrection or rebellion within states or districts occupied by rebels, treated as belligerents.

In this event, such states stand, during the war, almost exactly on the same footing as foreign states, and the rules applicable for their government are the same as those just given.

(6) Cases 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.

This is what the minority of the court in Milligan's case termed Martial Law Proper, and, in free governments like the United States, is the most difficult of exact definition. A single case will illustrate. In 1864, Mr. Milligan, a citizen of Indiana, was arrested and tried by a military commission for “ inciting insurrection,” “ viola

1 G. 0. 20, Feb. 19, 1847. G. O. 287, Sept. 17, 1847. · Ex-parte Milligan, 4 Howard, 142. 3 This was the term used by the minority Judges in Ex-parte Milligan.

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