MARTIAL LAW

The exercise of government and control by military authorities over the civilian population of a designated territory.

Martial law is an extreme and rare measure used to control society during war or periods of civil unrest or chaos. According to the Supreme Court, the term martial law carries no precise meaning (Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 [1946]). However, most declarations of martial law have some common features. Generally, the institution of martial law contemplates some use of military force. To a varying extent, depending on the martial law order, government military personnel have the authority to make and enforce civil and criminal laws. Certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus may be suspended (this writ allows persons who are unlawfully imprisoned to gain freedom through a court proceeding).

In the United States, martial law has been instituted on the national level only once, during the Civil War, and on a regional level only once, during world war ii. Otherwise, it has been limited to the states. Uprisings, political protests, labor strikes, and riots have, at various times, caused several state governors to declare some measure of martial law.

Martial law on the national level may be declared by Congress or the president. Under Article I, Section 8, Clause 15, of the Constitution, Congress has the power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions." Article II, Section 2, Clause 1, of the Constitution declares that "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Neither constitutional provision includes a direct reference to martial law. However, the Supreme Court has interpreted both to allow the declaration of martial law by the president or Congress. On the state level, a governor may declare martial law within her or his own state. The power to do so usually is granted in the state constitution.

Congress has never declared martial law. However, at the outset of the Civil War, in July 1861, Congress ratified most of the martial law measures declared by President abraham lincoln. Its martial law declaration gave the Union military forces the authority to arrest persons and conduct trials. However, Congress initially refused to ratify Lincoln's suspension of the writ of habeas corpus. This refusal created friction between Congress and the president and raised the question of whether unilateral suspension of the writ under martial law was within the president's power. The Supreme Court reviewed the issue and ruled in Ex parte Merryman, 17 F. Cas. 144 (1861) (No. 487), that only Congress had the power to suspend the writ of habeas corpus. After Congress approved Lincoln's suspension of the writ in 1863, Union forces were authorized to arrest and detain Confederate soldiers and sympathizers, but only until they could be tried by a court of law.

The martial law declared by Lincoln during the Civil War spawned another legal challenge, this one to the military courts: ex parte milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866). Lamdin Milligan, a civilian resident of Indiana, was arrested on October 5, 1864, by the Union military forces. Milligan was charged with five offenses: conspiring against the United States, affording aid and comfort to rebels, inciting insurrection, engaging in disloyal practices, and violating the laws of war. Milligan was tried, found guilty, and sentenced to prison by a military court.

Although the habeas corpus petition had been suspended, the Supreme Court accepted Milligan's petition for a writ of habeas corpus. The Supreme Court held that neither the president nor Congress could give federal military forces the power to try a civilian who lived in a state that had federal courts. Milligan firmly established the right of the U.S. Supreme Court to review the propriety of martial law declarations.

The next large-scale martial law declaration took place 80 years later. On December 7, 1941, the day that Japanese warplanes bombed Pearl Harbor in what was then the territory of Hawaii, Governor Joseph B. Poindexter, of Hawaii, declared martial law on the Hawaiian Islands. The governor also suspended the writ of habeas corpus. The commanding general of the Hawaiian military assumed the position of military governor. All courts were closed by order of the military governor, and the military was authorized to arrest, try, and convict persons. Under Poindexter's martial law order, approved by the president, the military courts were given the power to decide cases without following the rules of evidence of the courts of law, and were not limited by sentencing laws in determining penalties.

In February 1942 the Department of War appointed General John L. DeWitt to carry out martial law in California, Oregon, Washington, and the southern part of Arizona. In March 1942 DeWitt announced that the entire Pacific Coast of the United States would be subject to additional martial law measures. Later that month he declared that all alien Japanese, Germans, and Italians, and all persons of Japanese descent, on the Pacific Coast were to remain inside their home between 8:00 p.m. and 6:00 a.m..

These martial law measures were challenged by criminal defendants shortly after they were put in force. In Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946), the Supreme Court held that the military tribunals established under martial law in Hawaii did not have jurisdiction over common criminal cases because the Hawaiian Organic Act (31 Stat. 141 [48 U.S.C.A. § 532]) did not authorize the governor to close the courts of law when they were capable of functioning. In Duncan the Court ordered the release of two prisoners who had been tried and convicted of embezzlement and assault by military courts.

In other cases the High Court was more tolerant of civil rights deprivations under martial law. In Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), the Court upheld a curfew placed on Japanese Americans during the war, on the ground of military necessity, and in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), the Court justified the random internment (imprisonment) of more than 110,000 Japanese Americans during the war.

At least one governor has used martial law to enforce state agency regulations. In 1931 Governor Ross S. Sterling, of Texas, sent Texas national guard troops into east Texas oil fields to force compliance with limits on the production of oil and an increase in the minimum number of acres required between oil wells. The regulations had been drawn up by the Texas Railroad Commission with the approval of the Texas Legislature, but similar regulations had been enjoined (stopped) by a federal court just four months earlier. In 1932 the Supreme Court invalidated Sterling's use of martial law, holding that it violated the constitutional due process rights of the property owners (Sterling v. Constantin, 287 U.S. 378, 53 S. Ct. 190, 77 L. Ed. 375 [1932]).

Another governor declared martial law in response to an assassination and rumors of political corruption. In June 1954 Albert Patterson, a nominee for state attorney general in Alabama, was shot to death on a street in Phenix City. Alabama governor Gordon Persons declared martial law in Phenix City and dispatched General Walter J. ("Crack") Hanna and the Alabama National Guard to take over the city. Hanna appointed a military mayor, and the troops took control of the county courthouse and city hall. The troops physically removed certain officials from the courthouse and city hall, seized gambling equipment, and revoked liquor licenses.

Martial law usually is used to try to restore and maintain peace during civil unrest. It does not always yield the desired results. In May 1970, for example, Ohio governor James Rhodes declared limited martial law by sending in National Guard troops to contain a Kent State University protest against the vietnam war. Four protestors were shot and killed by the troops. In a case brought by their survivors, the Supreme Court held that the governor and other state officials could be sued if they acted beyond the scope of state laws and the federal Constitution (Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 [1974]).

Martial law is generally an act of last resort. Courts will uphold a decision to use troops only if it is necessary and proper.

further readings

Currie, David P. 1987. "The Constitution in the Supreme Court: The Second World War, 1941–1946." Catholic University Law Review 37.

Davies, Kirk L. 2000. "The Imposition of Martial Law in the United States." Air Force Law Review (spring): 67.

Finder, Joseph. 1999. High Crimes. New York: Avon Books.

Garner, Anthony J. 1975. Hawaii under Army Rule. Honolulu, HI: Honolulu Univ. Press.

Houston, Jeanne Wakatsuki and James D. Houston. 1974. Farewell to Manzanar: A True Story. New York: Bantam.

Koh, Harold Hongju. 1994. "America's Offshore Refugee Camps." University of Richmond Law Review 29.

McCleskey, Robert A. 1994. "Maybe Oil and Water Should Mix—At Least in Texas Law: An Analysis of Current Problems with Texas Ground Water Law and How Established Oil and Gas Law Could Provide Appropriate Solutions." Texas Wesleyan Law Review 1.

Mello, Michael A., and Donna Duffy. 1991. "Suspending Justice: The Unconstitutionality of the Proposed Six-month Time Limit on the Filing of Habeas Corpus Petitions by State Death Row Inmates." New York University Law Review 18.

Rumore, Samuel A., Jr. 1996. "Building Alabama's Courthouses: Russell County Courthouse." Alabama Lawyer 57.

Scheiber, Harry N., and Jane L. Scheiber. 1997. "Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawai'i, 1941-1946." The University of Hawaii Law Review 19 (fall): 477–648.

Tateishi, John. 1984. And Justice for All. New York: Random House.

cross-references

Habeas Corpus; Japanese American Evacuation Cases; Kent State Student Killings; Military Law; Military Occupation; Militia; National Guard.

MARTIAL LAW

MARTIAL LAW is most easily defined as the application of military force to control all or part of an area where civilian authority is ineffective or in defiance of higher authority. Martial law often applies to battle theaters where army commanders require control of civilian resources close to front lines. In this vein, Andrew Jackson imposed martial law in New Orleans in 1814. More recently, martial law has been used to support civilian authorities in times of natural disaster. Americans traditionally view martial law with great suspicion because of the power it grants to the army and its commanders. The Declaration of Independence condemned George III's use of the British army to "render the military independent of, and superior to, civil power." The Constitution's guarantee of the right of habeas corpus protects U.S. citizens from potential arbitrary excesses of martial law. Only the president can declare martial law on the federal level and only governors may do so on the state level.

Despite American ideals opposing martial law, presidents have used it to deal with crises since the founding of the nation. George Washington declared martial law to quell the Whiskey Rebellion in 1794. Washington set an important American precedent by ordering the army to turn the rebels over to civil courts for trial. By not making the rebels subject to military law, Washington established the ideal that martial law should be used to bolster, not supersede, legally constituted local powers.

In order to avoid the often-unpopular step of declaring martial law, authorities have frequently called out troops without a formal declaration. Several governors used this tactic during the late nineteenth century in order to deploy local militia and guard units to quell railroad and mining strikes. These incidents raised questions about the proper chain of command for local militia, with governors seeking to maintain control of their militia without federal interference. In 1877, the governors lost the struggle when the National Guard Act made local militia subject to federalization in the event of a national emergency, as declared by the president.

On other occasions, presidents have used martial law when local authorities appeared unwilling or unable to enforce the law. During the 1950s and 1960s, Presidents Dwight Eisenhower, John Kennedy, and Lyndon Johnson used federal troops or federalized National Guard troops to enforce civil rights laws against the will of state governors, most notably at Little Rock, Arkansas, in 1957, Oxford, Mississippi, in 1962, and Selma, Alabama, in 1965. In these cases, martial law effectively negated the power of recalcitrant local authority. In cases where local authority simply breaks down or cannot control an urban disturbance or natural disaster, martial law can be used to support local law enforcement.

Nevertheless, American suspicion of concentrated power has meant that martial law has only been declared thirty times, usually in localized areas and for brief time periods. Furthermore, the Supreme Court has limited the legal scale and scope of martial law. In the 1866 case Ex Parte Milligan, the court ruled that the military may not try civilians when civil courts are still functioning. In 1932, in Sterling v. Constantin, the Supreme Court asserted the right of judicial review over martial law.

Controversial uses of the military in domestic incidents, such as General Douglas MacArthur's 1932 eviction of the Bonus Army from Washington, D.C., have undermined the public's faith in martial law except in extraordinary circumstances. Excessive uses of martial law for purely political purposes have also tarnished the legitimacy of martial law. In 1935, the governor of arizona tried unsuccessfully to impose martial law in order to stop a federal project on federal land. Two years later, the governor of Rhode Island used martial law to enforce a ban on horse racing. To American sensitivities, these incidents did not warrant the drastic step of imposing martial law, whether at the state or federal level.

The regular military has normally been reluctant to participate in martial law situations. The army has not traditionally been trained to handle domestic disturbances, and it has not historically seen itself as a national police force. Moreover, declarations of martial law sometimes carry political overtones that the army prefers to avoid, as in the declaration of martial law by Indiana's Republican governor to head off a Copperhead movement in 1862 or the struggle in the wake of riots in Detroit in 1967 between President Johnson and Governor George Romney of Michigan, a potential Republican rival for the presidency in the 1968 election.

In practice, martial law in the United States usually involves the careful blending of military and civilian authorities. U.S. military authorities rarely completely take over situations, with the civil rights era being an important exception. More commonly, the military follows the Whiskey Rebellion model of deploying to support and assist local officials. This tradition fits in with perennial American fears of standing armies and concentrated power.

BIBLIOGRAPHY

Coakley, Robert. The Role of Federal Military Forces in DomesticDisorders, 1789–1878. Washington, D.C.: Center of Military History, 1988.

Higham, Robin, ed. Bayonets in the Streets: The Use of Troops inCivil Disturbances. 2d ed. Manhattan, Kans.: Sunflower Press, 1989.

Neely, Mark, Jr. The Fate of Liberty: Abraham Lincoln and CivilLiberties. New York: Oxford University Press, 1991.

Michael S.Neiberg

See alsoMilitary Law ; Ex Parte Milligan ; National Guard .

Martial Law, sometimes defined as merely the will of the commanding general or whatever is necessary to preserve governmental authority, is the temporary control by military authorities of the civilian population in a particular area. Its application is generally to battle zones during war or areas of great or potentially great public disturbance in peacetime.

Americans rejected martial law in the Declaration of Independence, indicting George III for having put colonial Massachusetts under control of the British army. The U.S. Constitution limited the federal government's application of martial law by the provision in Article I, section 9, concerning the right of habeas corpus.

After 1798, the new government differentiated between military law and martial law. The former are the rules that govern members of the armed forces. The latter is the mechanism under which the military governs civilians. Martial law by federal authorities was viewed as permissible only under extraordinary circumstances which, as with suspension of habeas corpus, presumed congressional authorization.

Martial law was imposed by U.S. forces briefly on New Orleans during the War of 1812 and on areas of Mexico occupied by the U.S. Army during the Mexican War. But it became a major issue in the Civil War, when President Abraham Lincoln and the Union army used it in various states to restrain behavior by civilians both in the war zones and eventually in areas far removed from battle such as Ohio and Indiana. This virtual independence of military courts from supervision by civilian courts raised troubling questions; after the war, the U.S. Supreme Court in Ex Parte Milligan (1866) severely limited its application by the federal government and precluded it where civil courts functioned. Although martial law has been declared by state governors for areas hit by natural disasters or extensive violence, the federal government, with the exception of the treatment of the Japanese Americans on the West Coast in World War II, has seldom used martial law in the United States in the twentieth century.
[See also Civil‐Military Relations: Civilian Control of the Military; Civil‐Military Relations: Military Government and Occupation; Japanese‐American Internment Cases; Justice, Military: Military Courts; Merryman, Ex Parte; Supreme Court; War, and the Military.]

Bibliography

James E. Sefton , The U.S. Army and Reconstruction, 1967.
Robin Higham, ed., Bayonets in the Streets: The Use of Troops in Civil Disturbances, 1969.
Robert W. Coakley , The Role of Federal Military Forces in Domestic Disorders, 1789–1878, 1988.
Paul L. Murphy, ed., The Bill of Rights and American Legal History, 1990.
Mark E. Neely, Jr. , The Fate of Liberty: Abraham Lincoln and Civil Liberties, 1991.
Clayton D. Laurie , The Role of Federal Military Forces in Domestic Disorders, 1879–1945, 1993.

Paul L. Murphy

martial law. The term has been used in two senses which may cause confusion:

1. The rules which apply to military discipline and related matters. The discipline exercised over the army, particularly a standing army, required special rules and special measures. These rules are now more accurately called military law.

2. The rules and discipline which exist at times of public emergency, and displace the ordinary principles of the law. This notion has been of greater constitutional importance. A proclamation of martial law would therefore suspend or alter the usual operation of the law and people may be punished and, on occasion, even executed by order of special tribunals set up in this way. This was one of the grievances objected to in the petition of right and the Bill of Rights.

The prevailing legal opinion is that there is no such thing as ‘martial law’ except in so far as the crown must have certain powers to act in the case of emergency, e. g. to put down a rebellion. This is not a special code of law but rather an example of the principle of necessity.

Maureen Mulholland

Martial Law ★½ 1990 (R)

A film solely for martial arts fans. Two cops use their hands, feet, and other body parts to fight crime. 90m/C VHS . Chad McQueen, Cynthia Rothrock, David Carradine, Andy McCutcheon; D: S.E. Cohen; W: Richard Brandes.