2. Martial law as applied to the enemy or the population of the enemy's country, is in the words of the duke of Wellington, "the will of the general of the army, though it must be administered in accordance with the customs of war."
3, 4. But it is as affecting the subjects of the crown in rebellion that the subject of martial law really obtains its chief importance; and it is in this sense that the term is generally used; i.e. the suspension of ordinary law and the temporary government of the country, or parts of it, or all of it, by military tribunals. It has often been laid down that martial law in this sense is unknown to the law of England. A. V. Dicey, for instance, restricts martial law to only another expression for "the common right of the crown and its servants to repel force by force, in the case of invasion, insurrection, or riot, or generally of any violent resistance." But more than this is understood by the term martial law.
When the proposition was laid down that martial law in this sense is unknown to the law of England, it is to be remembered that fortunately in England there never had been a state at all similar to that prevailing in Cape Colony in 1900-1902, and it may perhaps be questioned whether the statement would have been made with such certainty if similar events had been present to the writers' minds.
In the charge delivered by Mr Justice Blackburn in the Jamaica case the law as affecting the general question of martial law is well set out.
"By the laws of this country," said Mr Justice Blackburn, "beginning at Magna Carta and getting more and more established, down to the time of the Revolution, when it was finally and completely established, the general rule was that a subject was not to be tried or punished except by due course of law; all crimes are to be determined by juries subject to the guidance of the judge; that is the general rule, and is established law. But from the earliest times there was this also which was the law, and is the law still, that when there was a foreign invasion or an insurrection, it was the duty of every good subject, in obedience to the officers and magistrates, to resist the rebels, ... in such a case as that of insurrection prevailing so far that the courts of law cannot sit, there must really be anarchy unless there is some power to keep the people in order, ... before that principle the crown claimed the prerogative to exercise summary proceedings by martial law ... in time of war when this disturbance was going on, over others than the army. And further than that, the crown made this further claim against the insurgents, that whilst it existed, pending the insurrection and for a short time afterwards, the crown had ... the power to proclaim martial law in the sense of using summary proceedings, to punish the insurgents and to check and stop the spread of the rebellion by summary proceedings against the insurgents, so as ... to stamp out the rebellion. Now no doubt the extent to which the crown had power to do that has never been yet decided. Our law has been declared from time to time and has always been a practical science, that is, the judges have decided so much as was necessary for the particular case, and that has become part of the law. But it never has come to be decided what this precise power is."