Also one must consider here the
relative priority of the various constitu-
tional provisions. The governor is em-
powered by Article 8 to suppress insur-
rection, and yet it may be that certain
civil disorders cannot be put down
without ignoring some present laws.
One may argue that "suspension of the
laws" is not forbidden in the instance
when a governor acts reasonably to
overcome a danger to the community
with which the ordinary civil powers
cannot cope. The courts before have
used such a principle of necessity and
self-preservation to carve out an excep-
tion to a seemingly absolute constitu-
tional prohibition. One example is the
"clear and present danger" doctrine
exception to the First Amendment's
guarantee of free speech.
Furthermore, Article 9 itself intends
that the "execution of Laws" shall not
be suspended. This is an added indi-
cation that a limited military rule used
to execute the laws is proper when the
situation requires it, even though some
laws for a period are held in abeyance.
Civil violence, according to its severity,
may necessitate immediate action by the
militia to enforce the law of domestic
order; force must meet force and the
rioter in the streets may not seek shelter
for his deeds in Article 9.
As one writer has analyzed :
"The basic principle of [military
rule] ... is nothing more than an
ancient principle of the common law,
namely, that force to whatever extent
is reasonably necessary may be used
to repress unlawful force."28
Article 44 of the Declaration of Rights
provides :
"That the provisions of the Con-
28 F. wiener, A practical manual of
martial law 15 (1940).
302
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stitution of the United States, and
of this State, apply, as well in time
of war, as in time of peace, and any
departure therefrom, under the plea
of necessity, or any other plea, is sub-
versive of good Government, and
tends to anarchy and despotism."
Article 44 is a creature of the 1867
Constitution and arose apparently from
Civil War transgressions of personal
rights. It embodies what Judge Niles
termed "little more than a ... point of
view from which the court is expected
to look at any particular concrete ques-
tion."29 The only statement from the
Court of Appeals upon the "point of
view" of Article 44 appears in the con-
currence of three members to a depres-
sion-days decision holding that an equity
court could not deny enforcement to a
mortgage agreement solely because the
price seemed insufficient. Article 44 was
said to recognize that "it is in times of
emergency, stress, and violence that we
need the whole strength of an un-
broken constitution to save us from
destruction."30
It is therefore suggested that the
present purpose of the Article is, at
heart, to guarantee due process and
other constitutional rights such as free-
dom of contract during the season of
depression and violence as well as in
days of bounty and order.
Reference should be made to the sub-
sequent discussion of the United States
Supreme Court position that the courts
will review a justification for military
rule to determine whether it squares
with the principle of due process. Arti-
cle 44 seems not to prohibit military
rule, but only to preserve constitutional
rights during its continuance.
29 niles, supra at 7.
30Kenly v. Building Assn., 166 Md. 182,
194 (1934).
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