A CLARIFICATION OF MARTIAL LAW AND MILITARY RULE
A CLARIFICATION OF
MARTIAL LAW AND MILITARY RULE*
SUMMARY
I. The original Purpose of Article 32
of the Maryland Declaration of Rights,
unaltered to the present day, was to
assure that a civilian would be tried
only in a state or federal forum and not
by the military tribunal (a court-
martial) .
II. Military rule over a civilian com-
munity in time of domestic disorder,
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today popularly termed "martial law",
varies in its delegated duties according
to the necessity of the moment. While
the governor may impose military rule in
accordance with his statutory duties,
there are considerations of constitutional
limitation which must be considered,
particularly the Due Process clause of
the United States Constitution.
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I. THE MEANING OF "MARTIAL LAW" IN ARTICLE 32 OF THE MARYLAND
DECLARATION OF RIGHTS: THE ARTICLE'S PURPOSE
Article 32 is a direct, undiminished
legacy of the Convention of 1776.2 No
succeeding convention has altered its
vintage "Maryland language." The
courts have not interpreted the Article,
nor have Maryland's attorneys general
put an official gloss upon its passages.
The original purpose of Article 32 is,
therefore, decisive, and our search for
its meaning must be historical.
Befogging the question is the contem-
porary popular meaning of "martial
law" which may be said to be the rule
by military forces over a civilian com-
munity when domestic disorder has
gone beyond the control of the custom-
ary officers of the peace. We will avoid
confusion by terming such armed con-
trol "military rule."
1 This article was prepared for the Commis-
sion by Albert R. Snyder, a research assistant
for the Commission; A.B., 1963, Holy Cross
College; LL.B., 1967, University of Maryland.
2 The Chronology of Article 32 of the
Maryland Declaration of Rights in the con-
vention debates:
1776: Article 29, p. 297 ;
1851: Article 29, p. 201;
1 864 : Article 3 1, pp. 360-362 ;
1867: Article 32, p. 141 ; perlman 152.
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While military rule is explicitly provi-
ded for in neither federal nor state
constitutions, the United States
Supreme Court from an early day
recognized that
"[UJnquestionably, a State may use
its military power to put down an
armed insurrection, too strong to be
controlled by the civil authority. The
power is essential to the very existence
of every government, essential to the
preservation of order and free instruc-
tions, and is necessary to the States
of this Union as to any other govern-
ment."3
Military rule is born of necessity, and
its extraordinary measures are reconciled
with the democratic process in that
unlawful, belligerent force must be met
with military force so that the climate
of domestic order may be restored. Mili-
tary rule is permitted only until the civil
authority is once again able to function.
The significant question remains
whether, in the face of this principle of
a state's self-preservation, Article 32 was
intended to prohibit the imposition of
:! Luther v. Borden, 48 U.S. (7 How.) 1,
45 (1849).
297
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