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CHAPTER XXI


JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO
MARTIAL LAW


Martial law is the exercise of military power. It is martial
rule at the will of the commanding military officer.

In time of war and at the seat of war martial rule is a
necessity, and under such conditions martial law may rightfully
be enforced by any sovereign as an incident of the war, whether
that is being waged with foreign or domestic enemies. The case
is different when, though war exists, an attempt is made to
enforce martial law at a place which is not the seat of war, nor
so near it as to make military rule necessary for military
success. Constitutional provisions may also affect the question.
Those affecting the United States contain limitations stricter
than those found in some of the State Constitutions. Ordinarily
no military officer can rightfully enforce martial law in a place
where the regular courts of his sovereign are open and in the
proper and unobstructed exercise of their jurisdiction.[Footnote:
_Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]