Abraham Lincoln Papers: Incoming and Contextual Documents Document mal0924800

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Military Law is a system of regulations for the
government of the armies in the service of the U.S.
authorized by the Act of Congress of 10 AP. 1806 and
known as the Articles of War. And Naval Law is
a similar system for the government of the Navy
under the Act of Congress of 28 April 1800-
But Martial Law is quite a distinct
thing, and is founded on paramount necessity,
and proclaimed by a Military Chief-
1 Kent [ ] 370- notes-

By Constitution Act: 1 See 9 " the privilege of the
writ of habeus corpus shall not be suspended,
unless when in cases pf rebellion or invasion
the public safety may require it-
I would deem, as the power is given
to Congress to suspend the writ of Habeus Corpus
in cases of rebellion or invasion, that
the right to judge whether the exigency had
arisen, must exclusively belong to that body-
2 Story on Con. 197- Martin vs [Mott] 19-1 [Ken?]
[Con?].

Martial Law is the law of war that depends
upon the just but arbitrary power of pleasure of the
king or his lieutentants for though the King
doth not make any laws, but by common consent
& in Parliament, yet in time of war
by reason of the necessity of it, to guard

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against dangers that often arise, he
useth absolute power, so that his word is
a law- This power is now (in England)
however, regulated by Act of Parliament-
[ ] Tornbee's Law Dic. 536

Bouvier 2 Law Dict. 11 defines Martial Law to
be a code established for the government of the
army and navy of the United States- Its
principle rules are to be found in the
Articles of War-

Martial law as formerly exercised at the
discretion of the crown, and too often made
subservient to bad purposes, justly became
obnoxious to the people, and not only the propriety
but the legality of its being executed in times
of peace has been absolutely denied
Hale (Hist, C.L. bl. 2) declares Martial Law
to be in reality now law, but something indulged
rather than allowed as law; that the necessity
of order and discipline is the only thing which
can countenance it, and therefore it ought
not to be permitted in time of peace when
the King's courts are open [?]
12 Petersdorffe, Ab. 588
Blackstone 1 bal. 413 (Shars. Ed) says Martial Law
which is built on no settled principles, but is
entirely arbitrary in its decisions, is as Sir N.
Hale observes, in truth [?] reality, no law, but

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something indulged, rather than allowed as
law. The necessity or order & discipline in an
army is the only thing which can give it
countenance and therefore it ought not to be
permitted in time of peace when the Kings
courts are open &c. And it is laid down
(3 Jno 52) that if a Lieutenant or other
that hath commission of martial
authority, doth in time of peace hang or
otherwise execute any man by color of
martial law, this is murder, for it is
against Magna Charta.
Chiffy in his note on this passage pronounces
this censure by no means merited
at the present day. He refers to military law
Warren in a note to same passage says
"There is a great distinction though often
lost sight of between Military & Martial Laws
;the former affecting the troops or forces
only to which its terms expressly apply
equally in peace & war by previously defined
regulations; the latter extending to all the
inhabitants of the district, where it is in
force, being wholly arbitrary and emanating
entirely from a state of intestine commotion
or actual war.

By the 5th amendment to Constitution
it is declared no person shall be held to
answer for a capital or otherwise infamous

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infamous crime, unless on a presentment or
indictment of a grand jury except in
cases arising in the land or naval forces
or in the militia when in actual service
in time of war or public danger.
Quere, whether the President can declare
martial law to the extent of allowing an
infraction of this provision.

The Government of a State, by its legislature
has the power to protect itself from destruction
by armed rebellion, by declaring martial
law, and the Legislature is the sole judge
of the existence of the necessary exigency
Luther vs Borden 7 Howard 1 -

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Martial Law
Mr Coffey's notes
19. Apl 1861

Martial Law -
See an elaborate opinion of Mr
Atty Genl Cushing of Feb 3. 1857.
Opinion of Atty Genl. vol 8. p 365

Please add this to the brief handed in
this morning.
E Bates
20 Apr/61

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