agreeing to the underlying guarantee of
the Article. The suggested amendments
were rejected, but the assumed doctrine
was not controverted. It is reasonable
to conclude that in this brief interlude
in the 1864 debates, the proper purpose
of Article 32 is found to guarantee to
the civilian a civilian trial.
In the critical years of the 1770's,
colonial America hungered for more
than the rights of Englishmen, but the
first state constitutions, sparked from
the conflagration of July 4, 1776, not
only guaranteed new freedoms of speech
and religion but declared as well many
rights known to the colonials as former
subjects of the Crown.
The civilian's access to common law
trial was such a right. In the same
anxious days when Maryland wrote her
first constitution, sister states provided
"in convention assembled" that
"No person in any case be subject
to law-martial, or to any penalties or
pains, by virtue of that law, except
those employed in the army or navy
and except the militia in actual -serv-
ice."9
The civilian's right to common-law
trial has its roots in the reign of Richard
II. The court of the "constable and
marshal" had been ordained to deal
summarily with "contracts touching
deeds of arms and of war out of the
realm," but the people were anxious
lest the "marshal's law" encroach upon
their right to the "good laws" of old,
i.e., the common-law process. Statutory
enactments sought to curtail the as-
9 mass. const., dec. of rights, art. 28;
N.H. const, art. I, § 34; S.C. const, art. I,
§ 27. vt. const, art. I, §_ 17, added "but by
authority of the legislature."
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sumption of new powers by the mar-
shal.10
"The Kings of the realm, preparatory
vo an actual war, were used to impose
rules and orders for the due order of
their soldiers, together with certain pen-
alties on the offenders, and this was
called martial law."11 It was the exten-
sion of martial law to civilian insurgents
which brought unrest. The culminating
legislation was the 1628 Petition of
Rights1 2 which provided "that the afore-
said Commissions, for proceedings by
Martial Law. may be revoked and
annulled."
The so-called "Mutiny Act" of 1689
affirmed the principle that :
"no man can be forejudged of life
or limb, or subjected in time of peace
to any kind of punishment in this
realm by martial law . . . ; yet, neverthe-
less, it being requisite, for the retain-
ing of all the before-mentioned forces
and other persons subject to military
law ... in their duty, that an exact
discipline be observed," etc.13 (em-
phasis added ) .
As one writer has indicated,14 the
above statutory equivalence of "martial
law" and "military law" is noteworthy.
To Englishmen near the turn of the
Eighteenth Century, "martial law" had
108 Rich. 2, c.5 (1384); 13 Rich. 2, c.2
(1389); 1 Hen. 4, c.14 (1399).
11 M. hale, history of the common
law, quoted in W. birkhimer, military
government and martial law 372 (1914).
12 3 Chas. 1, c.l (1628).
13 Mutiny Act of 1689 quoted in Fairrnan,
infra, note 14, at 1258.
14 Fairman, The Law of Martial Rule and
the National Emergency, 55 harv. L. rev.
1253, 1258 (1942). At 1258, n.26, the author
comments "In several of our early state con-
stitutions, martial law is used in the same con-
notation." The Maryland Article is then cited.
299
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