Hale on Martial Law

“But touching the Business of Martial Law, these Things are to be observed, viz.

"First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, Quod enim Necessitas cogit defendi.

"Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army, had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they were to be order'd and govern'd according to the Laws to which they were subject, though it were a Time of War.

"Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King's Courts are open for all Persons to receive Justice, according to the Laws of the Land.  This is in Substance declared by the Petition of Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and declared to be contrary to Law: And accordingly was that famous Case of Edmond Earl of Kent; who being taken at Pomfret, 15 Ed. 2. the King and divers Lords proceeded to give Sentence of Death against him, as in a kind of Military Court by a Summary Proceeding; which Judgment was afterwards in 1 Ed. 3. revers'd in Parliament....”

Liberty, Part XLV

Make no mistake -- this is not from the Constitution, and it was not an influence on the Constitution, but for the past couple of months, I have been offering ideas of liberty from a number of sources, and the following from France's Declaration of the Rights of Man happens to be excellent:

"1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

"2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

"3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

"4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

"5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law."

Where the Indiana Supreme Court was largely right

In 1856, the Supreme Court of Indiana released a very persuasive and well-considered decision. The beginning was not quite right, and I do not agree with all of the specifics near the end, but a good deal of it is definitely right and is worth reading:

Posts on the Right to Defend, so far

So far, in favor of the Right to Defend, we have heard from the following:

John Locke (Part 1) (Part 2)
Algernon Sydney (Part 1) (Part 2)
William Blackstone (Part 1) (Part 2)
Benjamin Franklin
John Adams (Part 1) (Part 2) (Part 3)
Thomas Jefferson
James Madison
John Quincy Adams
Alexander Hamilton
The Massachusetts (Provincial) House of Representatives
Edward Coke
Francis Bacon
Edmund Burke (Part 1) (Part 2) (Part 3) (Part 4)
William Odgers
James Kent
Samuel Pufendorf
Thomas Cooley (Part 1) (Part 2) (Part 3) (Part 4)
Herbert Broom
Former U.S. Supreme Court Justice James Wilson
St. George Tucker
Former Vice President Elbridge Gerry
Various American States, historically
Various American States, at the present
(Even) Thomas Hobbes

Francis Bacon, on the Right to Self-Defense

Francis Bacon's discussion of the right to self-defense indicates that it was somewhat more limited (in the recognition of it) during his lifetime than it was at other times and in other places, and yet as a component of the justification of "necessity," it made his list of "regulae" -- number 5, I believe:

“Necessitas inducit privilegium quoad jura privata.”

“The law chargeth no man with default where the act is compulsory, and not voluntary, and where there is not a consent and election; and therefore if either there bee an impossibility for a man to doe otherwise, or so great a perturbation of the judgment and reason as a presumption of law mans nature cannot overcome such necessity carrieth a priviledge in it selfe.

“Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger.”

Edward Coke, on the Right to Defend

In some circumstances, by the time of Edward Coke, even the killing of a person would be justified when necessary, as an act of self-defense.

Edward Coke: “If A. assault B, so fiercely and violently, and in such a place, and in such manner, as if B. should give back, he should be in danger of his life, he may in this case defend himself; and if in that defence he killeth A. it is se defendendo, because it is not done felleo animo; so the rule is, when he doth it in his own defence, upon any inevitable cause, Quod quis ob tutelam corporis sui fecerit, jure id fecisse videtur.”

~That which is done in defense of one’s body is right.~

Edmund Burke, on the Right to Defend 4

Edmund Burke:

“That fury which arises in the minds of men, on being stripped of their goods and turned out of their houses by acts of power, and our sympathy with them under such wrongs, are feelings implanted in us by our Creator, to be (under the direction of His laws) the means of our preservation. Such fury and such sympathy are things very different from men's imaginary political systems concerning governments. They arise out of instinctive principles of self-defence, and are executive powers under the legislation of nature, enforcing its first laws. These principles, prince and commonwealth (whatever they may think their rights) cannot always attack with perfect impunity. If princes will, in cold blood, and from mistaken ideas of policy, excite the passions of the multitude against particular descriptions of men, whether they be priests or nobility, in order to avail themselves of the assistance of that multitude in their enterprizes against those classes, let them recollect that they call in the aid of an ally more dangerous to themselves than those whom they are desirous of oppressing.”

Edmund Burke, on the Right to Defend 3

“There remain some other heads upon which the Acts have changed the course of the common law; and first, with regard to the right of self-defence, which consists in the use of arms. This, though one of the rights by the law of nature, yet is so capable of abuses, that it may not be unwise to make some regulations concerning them; and many wise nations have thought proper to set several restrictions on this right, especially temporary ones, with regard to suspected persons, and on occasion of some imminent danger to the public from foreign invasion or domestic commotions. But provisions, in time of trouble proper, and perhaps necessary, may become in time of profound peace a scheme of tyranny. The method which the Statute Law of Ireland has taken upon this delicate article, is, to get rid of all difficulties at once by an universal prohibition to all persons, at all times, and under all circumstances, who are not Protestants, of using or keeping any kind of weapons whatsoever. In order to enforce this regulation, the whole spirit of the common law is changed; very severe penalties are enjoined; the largest powers are vested in the lowest magistrates. Any two Justices of Peace, or magistrates of a town, with or without information, at their pleasure, by themselves, or their warrant, are empowered to enter and search the house of any Papist, or even of any other person, whom they suspect to keep such arms in trust for them. The only limitation to the extent of this power is, that the search is to be made between the rising and setting of the sun; but even this qualification extends no farther than to the execution of the Act in the open country; for in all cities and their suburbs, in towns corporate and market towns, they may, at their discretion, and without information, break open houses, and institute such search at any hour of the day or night. This I say they may do at their discretion, and it seems a pretty ample power in the hands of such magistrates.”