military rule no matter how direly in
disorder the homeland might be. His-
tory bears out that today's popular
understanding of the term "martial law"
is totally at variance with the intended
meaning of 1776. "Martial Law" in 1776
referred to the strict summary rules and
procedures employed by the "Courts-
Martial" for the discipline of naval and
land forces. Article 32 declared in effect
that while an enlisted man, by entering
the armed service of state or country,
subjected himself, for the sake of neces-
sary military autonomy, to the juris-
diction of the military courts, no civilian
could be denied the guaranteed due
process of a civil forum. The "martial
law" of 1776 is the "military law" of
1966.
Fifteen years after the adoption of
this Article, Maryland ratified the Fifth
Amendment to the United States' Con-
stitution which provided that a person
could be convicted for a serious crime
only after grand jury indictment, "except
in cases arising in the land or naval
forces, or in the Militia, when in actual
service in time of war or public dan-
ger."4 On the floor of the Convention
of 1864, it was urged by Delegate
Daniel Clarke that the implied reference
of Article 32 to Maryland's navy and
other practical unrealities be amended.5
His suggested amendment adopted the
language of the Fifth Amendment to the
4 Amendment V to the United States Con-
stitution reads in part:
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury, except in cases arising . . .," etc.
5 "I do not know how a regular soldier can
be in the service of the State. It is only the
United States that can keep a regular stand-
ing army. . . . The State of Maryland has no
mariners and marines." 1 debates of the
maryland constitutional convention of
1864, at 361 (R. Bayly ed. 1864).
298
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Constitution of the United States,6
which Delegate Clarke, and apparently
the Convention, assumed to embody the
"right doctrine" of Article 32. Fifty
years later, Judge Alfred S. Niles
commented in his work on Maryland
Constitutional Law that Article 32
"contains substantially, if not absolutely,
the same provisions in regard to Mary-
land as are contained in reference to the
federal government in the first clause of
the Fifth Amendment."7
In the 1864 Convention Delegate
George Peter of Montgomery County
also took issue with the language of the
Article, but only to reinforce what he
believed to be its intended guarantee:
"I hold it to be well-substantiated
law, that under all circumstances,
excepting the case of direct-interfer-
ence upon the part of a citizen with
military affairs, he is entitled to a fair
and impartial trial .... [It is] one of
our rights that we are entitled to be
tried by the laws under which we
live."8
The passing flurry created by Dele-
gates Clarke and Peter is the only
recorded instance of controversy over
Article 32 in Maryland conventions.
These delegates dissented from the con-
stitutional grammar, while assuming and
G Daniel Clarke's suggested amendment at
the 1864 Maryland Constitutional Convention
was,
"[N]o person shall be held to answer for
any charge or crime before a Court Martial
or Military tribunal, except in cases arising
in the land and naval forces of the United
States, or in the militia of the State when
in actual service in time of war or public
danger. Id. at 360.
7 A. niles, maryland constitutional
law 51-52 (1915).
8 Ibid. Mr. Peter wanted "shall" substituted
for "ought" in the Article.
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