Abraham Lincoln - American Memory

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to what is said by Sir Mathew Hale, in his History of the Common
Law, concerning martial law, wherein he limits it, as the gentleman
has seemed by the whole drift of his argument desirous of doing, and
says that it is "not in truth and in reality law, but something in-
dulged rather than allowed as a law—the necessity of government,
order, and discipline in an army," Mr. Cushing makes this just criti-
cism : "This proposition is a mere composite blunder, a total mis-
apprehension of the matter. It confounds martial law and law mili-
tary: it ascribes to the former the uses of the latter ; it erroneously
assumes that the government of a body of troops is a necessity more
than of a body of civilians or citizens. It confounds and confuses all
the relations of the subject, and is an apt illustration of the incom-
pleteness of the notions of the common-law jurists of England in re-
gard to matters not comprehended in that limited branch of legal
science. * * * Military law, it is now perfectly understood in
England, is a branch of the law of the land, applicable only to certain
acts of a particular class of persons and administered by special
tribunals ; but neither in that nor in any other respect essentially
differing as to foundation in constitutional reason from admiralty,
ecclesiastical, or indeed chancery and common law. * * *
It is the system of rules for the government of the army and navy
established by successive acts of Parliament. * * * *
Martial law, as exercised in any country by the commander of a
foreign army, is an element of the jus belli.
" It is incidental to the state of solemn war, and appertains to the
law of nations. Thus, while the armies of the United
States occupied different provinces of the Mexican republic, the
respective commanders were not limited in authority by any local
law. They allowed, or rather required, the magistrates of the coun-
try, municipal or judicial, to continue to administer the laws of the
country among their countrymen ; but in subjection, always, to the
military power, which acted summarily and according to discretion,
when the belligerent interests of the conqueror required it, and
which exercised jurisdiction, either summarily or by means of mili-
tary commissions for the protection or the punishment of citizens of
the United States in Mexico."—Opinions of Attorneys General, vol.
viii, 3G6-369.
Mr. Cushing says, "That, it would seem, was one of the forms of
martial law f but he adds, that such an example of martial law ad-
ministered by a foreign army in the enemy's country "does not en-