Before I begin my discourses on Locke and constitutional government my wife suggested that I needed to write on the definitions of two terms: martial law and militia. I am going to discuss martial law first.
Currently, my wife and I are reading an “apocalyptic” book which deals with life after an electromagnetic pulse (EMP) takes out the power grid. I read many series of such books to my son Jarrod in the last years of his life. Through out this genre of books there is a consistent misunderstanding of marital law. Provisions for martial law are included in our State Constitutions, and has definite meaning. The martial law is a lawful power of government, and proper understanding of it and its lawful implementation is important.
Martial law is military law or law enforced by the military. Civil law and martial law always coexist continually. The normal condition is that civil law sits above martial law, and under normal conditions martial law applies only to members of the military while on duty. A member of the military who violates civil law is responsible to civil authorities. A member of the military who violates military law is responsible to military authorities. Civilians are generally not subject to military authority, unless there is no other option.
Under normal conditions, a civilian is never subject to military authorities, and a member of the military not on post nor on duty is not subject to military authorities unless they particularly violate military law. A member of the military might be apprehended by the civilian authorities can then be turned over to military authorities for military justice. Except on military property, civilian authorities are the first enforcers of law, though they could be logistically supported by military authorities.
Under martial law, military authorities are the first enforcers of law. But martial law is not the suspension of civil law. During a condition of martial law, if military authorities apprehend a civilian violating civil law, the standard protocol is to turn the offender over to civilian authorities. A civilian generally is not accountable to military law. However, the commander in the field is tasked with determining whether the individual is a combatant, spy, or civilian.
In either case, civilian law or military law, the accused has a right to trial by jury except in the most exigent circumstances of military law. The composition of the jury and method of selection varies between the two.
Extreme law enforcement techniques during times of civil unrest such as curfews are not martial law, because they are not being enforced by the military. When after the Boston Marathon bombing, people were ordered to stay in doors and the civilian police in riot gear, and with automatic weapons went through the neighborhoods looking the criminals; that was not martial law. The military was not involved. Even if the National Guard had been accompanying the police, if the police were command, it would not be martial law. However, search of private property without a warrant is unlawful. That is a separate issue.
Following are the Articles in the New Hampshire Bill of Rights pertaining to martial law:
- [Art.] 26. [Military Subject to Civil Power.] In all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power.
- [Art.] 34. [Martial Law Limited.] No person can, in any case, be subjected to law martial, or to any pains or penalties by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the Legislature.
Within the States martial law can only be declared by State authorities. In New Hampshire, the Constitution gives that power exclusively to Legislature. If the Legislature could not be convened, martial law could not be institute. Similar, to this is habeas corpus, the right to see the body, which is often used to ensure that a prisoner is alive and well treated. This too can only be suspended in New Hampshire by the Legislature and never for more than 90 days, or by the Congress during rebellion or invasion. There is no federal power to declare martial law in the States; however, martial law is the default on a battlefield, and only the government of the United States can declare war. The Congress could declare martial law in the territories. The President has no independent power to declare martial law except that he does have the power to direct the military, and so define the battlefields.
If the President or Congress were to declare martial law within a State, there must first be a declared war and some portions of that State recognized as an active battle field (like the coastal regions during W.W.II), or it is an implicit declaration of war upon the State.
Concepts such as martial law have long standing meanings. Using such terms incorrectly is at the least inflammatory. Always remember, if the civilian authorities are in command, it is not martial law. It is only martial law when the military is in command of civilians. If the civilian authorities are using dictatorial authority without benefit of law or contrary to law, it is tyranny, but not martial law.