| Martial Law definition from 1700s
A definition of MARTIAL LAW taken from 1743 English law dictionary based on one originally complied by Giles Jacob. Quote:
MARTIAL LAW, Is the law of war, that depends upon the just but arbitrary power and pleasure of the King, or his lieutenant; for tho' the King doth not make any laws but by common consent in parliament, yet in time of war, by reason of the necessity of it to guard against dangers that often arise, he useth absolute power, so that his word is a law. Smith de. Repub. Angl. lib 2.c..4.
But the Martial Law, (according to Chief Justice Hale,) is in reality, not a law, but something indulged rather than allowed as a law; and it relates only to the members of the army, being never intended to be executed on others, who ought to be ordered and governed by the laws to which they are subject, tho' it be a time of war. Hale's Hist. L. 39. And the exercise of Martial Law, whereby any person might lose his life or member, or liberty, may not be permitted, in time of peace; when the King's courts are open for are persons to receive justice. Ibid. 40. Alien enemies invading the kingdom, &c. shall be dealt with and executed by Martial Law. H.P.C. 10, 15, Also soldiers are punished for desertion, &.c. in a court Marial by various statutes. See Law of arms.
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LAW OF ARMS, (les armorum) Is that law which gives precepts how to proclaim war, make and observe leagues and treaties, to assault and encounter and enemy, and punish offenders in the camp, &c. The law and judgement of arms are necessary between to strange princes of equal power, who have no other method of determining their controversies, because they have no superior or ordinary judge, but are supreme and publick persons; and by the law of arms, Kings obtain their rights, rebels are reduced to obedience, and peace is established; but when the law of arms and war do rule, the civil laws are of little or no force. Treat. Laws 57. It is a kind of law among all nations, that in case of solemn war, the prince that conquers gains a right of dominion, as well as property over the things and persons he has subdued; and it is for this reason, because both parties have appealed to the highest tribunal that can be, viz. the trial by arms and war; wherein the Great Judge and Sovereign of the world, in a more especial manner, seems to decide the controversy. Hale's Hist. L. 73, 74. Common things concerning arms and war, are under the cognizance of the Constable and Marshal of England.
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Last edited by allodial; 05-16-2009 at 03:41 PM.
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05-16-2009, 03:25 PM
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