that of judging when the exigency has arisen, belong exclusively to Congress. But the rebellion or invasion may demand such suspension during a recess of the national legislature, and, by the laws of war, the executive has then the right to assume the power for the public safety. The relation between the proclamation of martial law and the suspension of the writ of habeas corpus, is extremely intimate; although it is but one of its consequences, and by no means the largest or gravest, since, according to every definition of martial law, it suspends, for the time being, all the laws of the land, and substitutes in their place no law, that is, the mere will of the military commander.

Definition. Martial law, then, is that military rule and authority which exists in time of war, and is conferred by the laws of war, in relation to persons and things under and within the scope of active military operations in carrying on the war, and which extinguishes or suspends civil rights, and the remedies founded upon them, for the time being, so far as it may appear to be necessary in order to the full accomplishment of the purpose of the war, the party who exercises it being liable in an action for any abuse of the authority thus conferred. It is the application of military government-the government of force-to persons and property within the scope of it, according to the laws and usages of war, to the exclusion of the municipal government, in all respects where the latter would impair the efficiency of military law or military action.*

How executed. In carrying on war in a portion of country occupied or threatened to be attacked by an

*North American Review, October, 1861.

enemy, whether within or without the territory of the United States, crimes and military offences are fre quently committed, which are not triable or punishable by courts-martial, and which are not within the jurisdiction of any existing civil courts. Such cases, however, must be investigated, and the guilty parties punished. The good of society and the safety of the army, imperiously demand this. They must, therefore, be taken cognizance of by the military power; but, except in cases of extreme urgency, a military commander should not himself attempt to decide upon the guilt or innocence of individuals. On the contrary, it is the usage and custom of war, among all civilized nations, to refer such cases to a duly constituted military tribunal, composed of reliable officers, who, acting under the solemnity of an oath, and the responsibility always attached to a court of record, will examine witnesses, determine the guilt or innocence of the parties accused, and fix the punishment. This is usually done by courtsmartial; but in our country, these courts have a very limited jurisdiction, both in regard to persons and offences. Many classes of persons cannot be arraigned before such courts for any offence whatever, and many crimes committed, even by military officers, enlisted men or camp retainers, cannot be tried under the "rules and articles of war." Military commissions must be resorted to for such cases, and these commissions should be ordered by the same authority, be constituted in a similar manner, and their proceedings be conducted according to the same general rules as courts-martial, in order to prevent abuses which might otherwise arise. Civil offences cognizable by civil courts, whenever

such loyal courts exist, will not be tried by a military commission. It should therefore be stated in every application for a commission, whether or not there is any loyal civil court to which the civil offence charged can be referred for trial. It must be observed, however, that many offences which in time of peace are civil offences, become in time of war military offences, and are to be tried by a military tribunal, even in places where civil tribunals exist.*

* G. O., No. 1. Head-quarters, department of Missouri, January 1st, 1862.

CHAPTER II.

CONSTITUTION AND COMPOSITION OF
COURTS-MARTIAL.

IN conformity with the authority conveyed by the rules and articles of war, certain officers, therein specified, are empowered to convene general, regimental, and gar. rison courts-martial; the composition of the several courts, whatever their jurisdiction, being distinctly stated and defined.

General Courts-Martial may be appointed by any general officer commanding an army, or colonel commanding a separate department,* and in time of war by a commander of a division or separate brigade. This, of course, includes the President of the United States, who is, by the constitution, the commander-in-chief of the army and navy, and, therefore, the first general of the confederacy; though this power is first given to him in terms by the act of May 29th, 1830, in the case when a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer of the army of the United States under his command. When the division or brigade commander shall be the accuser or prosecutor, the court shall be appointed by the next higher commander.

* 65th article of war.

Act approved Dec. 24th, 1861.

Regimental Courts-Martial may be appointed by every officer commanding a regiment or corps; and Garrison Courts-Martial by all officers commanding any of the garrisons, forts, barracks, or other places where the troops consist of different corps.*

The Warrant for the assembling of a court-martial is issued in the form of an order, by the officer specially empowered by the law. The English "Mutiny Act," from which our articles of war are mainly derived, provides for the delegation of this power to inferiors, by those who have the right of appointing courts-martial, but as no such power is authorized by our laws, the practice formerly in vogue has been very properly prohibited. And, indeed, the practical operation of the acts, above cited, of May 29th, 1830, and December 24th, 1861, would of no effect were such a course of proprove cedure recognized. It has therefore been decided that he alone, to whom the law has given the authority to act in such cases, must appoint the court; and that no right to delegate such authority can be exercised without the express sanction of law.†

A general court-martial having expressed a doubt as to the regularity of the order by which it was convened, on the ground that the secretary of war was not competent to render such an order, the question was duly considered by the secretary and president, and the result was, that they entertained no doubt of the perfect regularity of the order. Their decision embodied the following considerations: Although the President cannot delegate his powers, he need not in all cases exercise them in proper person. In the language of Mr. Wirt,

* 66th article of war.

+ Captain McK's. case, August, 1845.