DOMESTIC DISTURBANCES 229 "c. It is hereby emphasized that, for the present, the troops under your command can be used only to protect federal property and agencies or property in federal possession. They may not assist in executing United States judicial process, in enforcing federal law, or in forcibly putting down the insurrection as such until after failure on the part of the rioters to comply within the specified time with the directions contained in the President's proclamation. Then, and in that event only, you are authorized and hereby directed to proceed immediately against the rioters in such way as in your discretion and best judgment will most promptly and effectually put an end to the insurrection." CHAPTER V Martial Law SECTION I.-General Survey Situations. Paragraphs 1-10 _11-20 II.-Employment of Federal Troops in Martial Law Definition SECTION I General Survey General use of the term True meaning of the term Necessity for considering martial law Occasion for its exercise Limitations upon its exercise Martial law as exercised by the British Martial law as declared by General Jackson at New Orleans 1. DEFINITION.-Martial Law may be briefly defined as military rule exercised at home, in an emergency justifying it, by the United States or a State over its own citizens or subjects in situations where they are not legally enemies. (See also Chap. III, Sec. I, par. 2.) 2. GENERAL USE OF THE TERM.-a. The term "martial law" is a misnomer. "Martial rule" or "military rule" would be much more nearly accurate terms. The statement by Wellington in the House of Lords that martial law is no law at all, but is merely the will of the commander of an armed force, has been universally accepted. Even for the purpose of expressing the idea of military rule, however, no term has been more loosely used, both by the courts and textwriters, than has the term "martial law." Until recently it was used, as it still is in England, to signify the military government which a belligerent exercises in territory of the enemy under the law of war, and courts and publicists frequently still use the term in that sense. b. The distinction between military government and martial law has already been pointed out. The term "military government" is now fairly well understood by the officers of our Army, but the term "martial law," as above indicated, is still so loosely used as to cause much confusion in thought. It is frequently employed to denote any form of exercise of authority by the military over the civil public. Its use in that broad sense, however, would erroneously include all occasions where the military is employed under the authority of a statute. When so employed, the military is nothing more than a superior police force. It does not operate under martial law. It is not called out to supersede civil authority but to maintain or restore it. 3. TRUE MEANING OF THE TERM.-a. The best recent authorities employ the term "martial law" in the sense of denoting a situation where, civil authority being ineffective, the State or National government, through its military forces, controls the civil population without authority of written law, as necessity may require. This brushes away confusion and enables us to determine rather definitely the responsibility of the military. It includes those cases where, upon invasion of our territory by an enemy, the local commander, as a means of national defense and safety, exercises martial rule in the theater of invasion (as did General Jackson at New Orleans), or in case of civil war where the President or local commander exercises it in territory more or less disaffected and in close proximity to the theater of hostilities (as with the case in the border States of New Mexico, Kentucky, and Maryland during the Civil War). b. There have been numerous instances of the exercise of martial law by State governments in districts where civil authority was powerless to preserve order. In fact, the States have had, and will continue to have, much more frequent occasion for the exercise of martial law than the 282 MILITARY AID TO THE CIVIL POWER United States, the reason being that the preservation of domestic order in our country is primarily a State function. c. Martial law is nothing more than the exercise by a government of the right of self-defense. It was said by the Supreme Court of the United States in the case of Luther vs. Borden (7 How. 45) that: 66 unquestionably, a state may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of the Union as to any other government. The State itself must determine what degree of force the crisis demands." d. It has been said that even if martial law were forbidden by the Constitution or by statute it would break through and assert itself when necessity required-and it would. It is not a part of the Constitution, but is rather a power to preserve the Constitution when constitutional methods prove inadequate to that end. It is the law of necessity. Manifestly it cannot be instituted at the caprice of an executive or a military commander. It cannot, strictly speaking, be created by declaration. As has been said by good authority, it proclaims itself. A declaration of martial law is an announcement of a fact rather than the creation of that fact. A declaration is nevertheless proper as informing the public of the intentions of the government, and is useful by way of advising the public as to the behavior which the government will require. 4. NECESSITY FOR CONSIDERING MARTIAL LAW.Martial law and military government have been closely associated in our discussion of the distinction between them. The latter has been considered in detail in a preceding chapter (see Chapter III), so it is logical that the former should now be taken up for somewhat detailed examination. This is advisable more from a logical standpoint than it is from the standpoint of the practical importance of the subject, however, for it is a fact that martial law may be relegated to the background and almost forgotten so far as the suppression of most internal disorders by federal military force in our country is concerned. For this reason the subject of martial law was not included in the preceding chapter on Domestic Disturbances. Another reason why it has been deemed best to treat the subject in a separate chapter is that, since federal forces employed in the suppression of internal disorders would, in the great majority of cases, be operating under statutory authority, not martial law, such separate arrangement tends to correct any impression that heretofore may have been entertained to the effect that federal troops led forth to suppress local disturbances would ipso facto be operating under martial law. 5. OCCASION FOR ITS EXERCISE.-a. It is a principle governing the exercise of martial law that is not to be inaugurated precipitately or inconsiderately, and that it is to be continued only so long as the public exigency which brought about the necessity for its exercise shall prevail. When the exigency shall have ceased, or within a reasonable time thereafter, the status may, indeed must, be deemed to have lapsed, after which it cannot lawfully be further continued or enforced. b. The situation close to the fighting in the immediate theater of active military operations is usually such that practically no rule is known or can be exercised except military rule in accordance with military necessity and the will of the commander. It will make very little practical difference in such a case whether the activities are on hostile or friendly soil, for there is very little government other than strictly military rule that it will be practicable to set up and exercise. If a government should be set up and exercised, however, it will be either military government or martial law, depending upon whether it is located on hostile or friendly territory. If the former, it is military government; if the latter, it is martial law. The difference in the manner of exercising the government will be considered in a subsequent section. (See Sec. II, pars. 13 et seq. of this chapter.) c. The Supreme Court of the United States has said in the Milligan Case (4 Wall. 127) that martial law is "con |