E. MILITARY RULE, A VARYING CON-
CEPT; SOME EXAMPLES OF A GOV-
ERNOR'S USE OF THE MILITIA;
CONSIDERATIONS OF STATE AND
FEDERAL DUE PROCESS
It has been said that "the battles of
words which have been waged over (the
meaning of martial law) seem to have
been almost as sanguinary as the
struggles leading to the actual declara-
tion of martial law."31 (To avoid the
linguistic problem, the popular "martial
law" has been termed "military rule" in
this paper. )
One may find his way through a
maze of misused vocabulary if he will
understand that all military rule is
"qualified, in the sense that its scope
and extent are limited by the scope and
extent of the necessity calling it forth."32
A situation may require the governor
only to call up the militia for in terrorem
effect and thus cause insurgents to back
down; it may so escalate that military
patrol is necessary; or circumstances
could be so dangerously volatile that the
military must take over the local police
duties and, in the extreme instance, all
functions of local government.
Use of the militia is also limited to
the infected geographical area. For this
reason a proclamation by the governor,
although not legally required, is useful
in establishing what local duties the
militia has been ordered to carry out
and also over what factory, street, town,
city, county, or larger area the military
authorities are to prevail.
Military rule, of course, is also limited
in time. It arises of necessity and must
be dissolved as the civil order again
becomes capable of operating.
Instances of absolute military rule
(when the will of the military com-
31 Id. at 6.
32 Id. at 12-13.
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mander "is law") create almost a special
case limited to for example, the occupa-
tion of hostile foreign countries or the
Civil War aftermath. However, "quali-
fied military rule," which is only preven-
tive of violence and not a government in
itself, has in various situations been
utilized by a state's chief executive. •
A lengthy quotation from one author-
ity provides helpful background.33
"The best known episodes of martial
rule have been chiefly the result of
chronic lawlessness in the mining
industry. The depression brought forth
the problem of dealing with demon-
strations of hungry men, and then the
increased militancy of organized labor.
In some states 'martial law' was in-
voked to cover the imposition of ex-
ecutive moratoria. Thus the crude
remedy of calling out the militia was
increasingly adopted . . . . [I]n the
fiscal year 1934, twenty-seven states
mobilized the guard for emergency
duty, and in the next year the number
reached thirty-two. The occasions
have often been small, even trivial in
compass. Troops have been mobilized
to prevent whites from lynching
Negroes, but also to prevent Negroes
from exercising their legal rights to
reside among whites; to protect the
community from bandits, and to pro-
tect the bandits, dead or alive from
the community; to guard the life of
the governor of Kentucky and to keep
peace at the derby. In some states the
proclamation of 'martial law' has
become a familiar, even whimsical act.
Texas had seven such episodes in the
twelve years following the first World
War. Governor Murray of Oklahoma
restricted the production of oil ... ; he
declared martial rule within fifty feet
around each well, reciting that some
33Fairman, supra note 14, at 1275-1277.
303
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