![]() This opinion, however, must be read, as regards the British Empire, with the passage in the Petition of Right which is reproduced in the preamble of each annual Army Act, and asserts the illegality of martial law in time of peace in the following terms:-“No man shall be fore-judged or subjected in time of peace to any kind of punishment within this realm by martial law.” Therefore, whilst martial law is declared illegal in time of peace, it is indirectly declared lawful in time of war and intestinal commotion when the courts are closed, or when there is no time for their cumbrous action. 544), says, “Martial law originates either in the prerogative of the crown, as in Great Britain, or from the exigency of the occasion, as in other states: it is one of the rights of sovereignty, and is essential to the existence of a state, as is the right to declare or to carry on war.” Halleck in his work on International Law (i. Yet in reality it is part of common law which justifies acts done by necessity for the defence of the commonwealth when there is war. It is simply military authority exercised in accordance with the laws and usages of war, and is limited by military necessity. But such a proclamation, while invariably issued in order to give publicity to the suspension of ordinary law, does not invest the step with the force of law. It is declared, by a proclamation issued by the executive, that ordinary law is inadequate to cope with the circumstances, and provides exceptional means of arrest and punishment of persons who resist the government or aid the enemy. ![]() It is the exercise of the will of the military commander, who takes upon himself the responsibility of suspending ordinary law in order to ensure the safety of the state. But martial law is not a law in the proper sense of the term. The confusion arose from the fact that the marshal’s court administered military law before the introduction of articles of war, which were in their turn merged in the Army Act. ![]() It describes a suspension of ordinary law, rendered necessary by circumstances of war or rebellion. “Martial law” is an unfortunate term and in a sense a misnomer.
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