This supersedes, as far as may be deemed expedient, the local law, Chap. II. and continues until the war or rebellion is terminated, and a regular civil authority is instituted (m). Martial law is founded on paramount necessity. It is the will of the Martial law is commander of the forces. In the proper sense it is not law at all (n). by necessity. only justified It is merely a cessation from necessity of all municipal law, and what necessity requires it justifies (o). Under it, a man in actual armed resistance may be put to death on the spot by anyone acting under the orders of competent authority; or, if arrested, may be tried in any manner which such authority shall direct. But if there be an abuse of the power so given, and acts are done under it, not bona fide to suppress rebellion and in self-defence, but to gratify malice or in the caprice of tyranny, then for such acts the party doing them is responsible (p). Sir James Sir James Mackintosh has said on this subject, "The only principle Opinion of on which the law of England tolerates what is called 'martial law' is Mackintosh. necessity. Its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity, in which alone it rests, for a single minute, it becomes instantly a mere exercise of lawless violence. When foreign invasion or civil war renders it impossible for courts of law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military, which is the only remaining force in the community. "While the laws are silenced by the noise of arms, the rulers of the armed force must punish as equitably as they can those crimes which threaten their own safety and that of society, but no longer; every moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime. If argument be not enough on this subject-if, indeed, the mere statement be not the evidence of its own truth-I appeal to the highest and most venerable authority known to our law." He then quotes Sir Matthew Hale, and cites the case of the Duke of Lancaster, who was executed when taken prisoner at the battle of Boroughbridge, 1322 (g), and proceeds : "No other doctrine has ever been maintained in this country since the solemn parliamentary condemnation of the usurpation of Charles I., which he was himself compelled to sanction in the Petition of Right" (r). If in foreign invasion or civil war the courts of law are actually closed, and it is then impossible to administer criminal justice according (m) Argument in Ex parte Milligan, 4 Wallace, pp. 141, 142. (n) Speech of Duke of Wellington, 1st April, 1851. Field, International Code (2nd ed.), p. 478. (0) Forsyth, Cases and Opinions on Constitutional Law, p. 201. (p) Ibid. p. 214. Finlason on Martial Law (London, 1867). (9) Hale, Pleas of the Crown, pp. 499, 500. Hume, Hist. of England, vol. i. p. 159. (r) Mackintosh's Miscellaneous Works, p. 734 (London, 1851). Part IV. Martial law during the American civil war. Milligan's case. Martial law in France. Geoffroy's case. to law, then, on the theatre of actual military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course, and where actual war is raging, acts done by the military authorities are not justiciable by the ordinary tribunals (s). As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule ought to never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It should also be confined to the locality of actual war or insurrection; but the fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed is not conclusive that war is not raging (t). In October, 1864, during the civil war, Lambdin P. Milligan, a citizen of the United States, and an inhabitant of Indiana, was arrested, while at home, by order of the Federal general commanding the military district of Indiana. Though not a military person, he was sent to Indianapolis, and brought before a military commission sitting there, tried on certain charges of conspiring against the government, found guilty, and sentenced to be hanged. The question, which was brought before the Supreme Court, was whether the military commission had jurisdiction legally to try and sentence him. In Indiana the Federal authority was not opposed by force, and its courts were always open to hear criminal accusations and redress grievances. But a powerful secret association, which plotted insurrection and armed co-operation with the rebels, existed in the State. On the question as to whether, under such circumstances, Congress had power to appoint a military commission to try and condemn citizens, not being military personsthat is, whether martial law could be proclaimed-the judges of the Supreme Court differed. But they were unanimous in holding that, as this power had not been distinctly exercised, Milligan, being a citizen not connected with the military service, could not be tried, convicted, and sentenced otherwise than by the ordinary courts of law (u). A somewhat similar case was decided in France in 1832. A royal order, dated the 6th of June, 1832, had put Paris in a state of siege, and under it military commissions were appointed, which tried and convicted several persons. One Geoffroy was declared guilty of an attack with intent to subvert the government, and was condemned to death. He appealed to the Court of Cassation. This Court held that Geoffroy not being a military person, or subject to military authority, the military commission had no jurisdiction over him, and its sentence (8) Ex parte Marais, (1902) A. C. 109. (t) Ex parte Milligan, 4 Wallace, 127. See also Smith v. Shaw, 12 Johnson, 257; McConnell v. Hampden, Ibid. 234; Luther v. Borden, 7 Howard, 42; Ex parte Marais, supra. (u) Ex parte Milligan, 4 Wallace, 5 142. was accordingly annulled (v). Martial law has on several occasions Chap. II. been proclaimed in Ireland and in some of the British colonies for the suppression of disturbances. But it has not been put in force in In England. England against civilians (x). $347. enemy's when lawful. The exceptions to these general mitigations of the Ravaging the extreme rights of war, considered as a contest of force, territory all grow out of the same original principle of natural law, which authorizes us to use against an enemy such a degree of violence, and such only, as may be necessary to secure the object of hostilities. The same general rule, which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If this be necessary, in order to accomplish the just ends of war, it may be lawfully done, but not otherwise. Thus, if the progress of an enemy cannot be stopped, nor our own frontier secured, or if the approaches to a town intended to be attacked cannot be made without laying waste the intermediate territory, the extreme case may justify a resort to measures not warranted by the ordinary purposes of war. If modern usage has sanctioned any other exceptions, they will be found in the right of reprisals, or vindictive retaliation. The whole international code is founded upon reciprocity. The rules it prescribes are observed by one nation, in confidence that they will be so by others. Where, then, the established usages of war are violated by an enemy, and there are no other means of restraining his excesses, retaliation may justly be resorted to by the suffering nation, in order to compel the enemy to return to the observance of the law which he has violated (y). (e) Forsyth, Cases and Opinions, p. 483. See on this subject Mr. Field's argument in McCardale's case, Ibid. p. 491. And his argument in Milligan's case, published separately, with an appendix (New York, 1866); also in 4 Wallace, 4. Phillipps v. Eyre, L. R. 6 Q. B. 1. Law Magazine, Nov. 1861, p. 170. (x) Forsyth, Cases and Opinions, p. 212. Sir A. Cockburn's charge to the grand jury in R. v. Nelson and Brand (arising out of the case of Governor (y) Vattel, liv. iii. ch. 8, § 142; ch. 9, Part IV. § 348. Discussions between the American and British governments upon this subject. $ 349. Answer of the United States. The last war between the United States and Great Britain was marked by a series of destructive measures on the part of the latter, directed against both persons and property hitherto deemed exempt from hostilities by the general usage of civilized nations. These measures were attempted to be justified, as acts of retaliation for similar excesses on the part of the American forces on the frontiers of Canada, in a letter addressed to Mr. Secretary Monroe, by Admiral Cochrane, commanding the British naval forces on the North American station, dated on board his flagship in the Patuxent river, on the 18th of August, 1814. In this communication it was stated that the British admiral, having been called upon by the governor-general of the Canadas to aid him in carrying into effect measures of retaliation against the inhabitants of the United States for the wanton destruction committed by their army in Upper Canada, it had become the duty of the admiral to issue to the naval forces under his command an order to destroy and lay waste such towns and districts on the coast as might be found assailable. In the answer of the American government to this communication, dated at Washington on the 6th of September, 1814, it was stated that it had seen, with the greatest surprise, that this system of devastation which had been practised by the British forces, so manifestly contrary to the usages of civilized warfare, was placed on the ground of retaliation. No sooner were the United States compelled to resort to war against Great Britain, than they resolved to wage it in a manner most consonant to the principles of humanity, and to those friendly relations which it was desirable to preserve between the two nations, after the restoration of peace. They perceived, however, with the deepest regret, that a spirit alike just and humane was neither cherished nor acted upon by the British government. Without dwelling on the deplorable cruelties committed by the Indian savages, in the British ranks and in British pay, at the river Raisin, which had never been disavowed or atoned for, the American government Chap. II. referred, as more particularly connected with the subject of the above communication, to the wanton desolation that was committed, in 1813, at Havre-de-Grace and Georgetown, in the Chesapeake Bay. These villages were burnt and ravaged by the British naval forces, to the ruin of their unarmed inhabitants, who saw with astonishment that they derived no protection to their property from the laws of war. During the same season, scenes of invasion and pillage, carried on under the same authority, were witnessed all along the shores of the Chesapeake, to an extent inflicting the most serious private distress, and under circumstances that justified the suspicion, that revenge and cupidity, rather than the manly motives that should dictate the hostility of a highminded foe, led to their perpetration. The late destruction of the houses of the government at Washington was another act which came necessarily into view. In the wars of modern Europe, no example of the kind, even among nations the most hostile to each other, could be traced. In the course of ten years past, the capitals of the principal powers of the European continent had been conquered, and occupied alternately by the victorious armies of each other, and no instance of such wanton. and unjustifiable destruction had been seen. They must go back to distant and barbarous ages, to find a parallel for the acts of which the American government complained. Although these acts of desolation invited, if they did not impose on that government the necessity of retaliation, yet in no instance had it been authorized. The burning of the village of Newark, in Upper Canada, posterior to the early outrages above enumerated, was not executed on the principle of retaliation. The village of Newark adjoined Fort George, and its destruction was justified, by the officers who ordered it, on the ground that it became necessary in the military operations there. The act, however, was disavowed by the American government. The burning which took |