U.S. History of Martial Law

Martial Law is the rule by military authority in times of emergency when civil authorities are temporarily suspended. The imposition of martial law has been likened to the exercise of self-defense by an individual, with necessity justifying the action in both instances. Just as killing or injuring another individual may be justified under the extraordinary circumstance of a threat to one’s own life, the suspension of civil authority (including judicial procedures) may be justified in times of war or insurrection. In societies placing a high premium on the rule of law and the rights of individuals, martial law is seen as an undesirable necessity.

History has shown that the question of when martial law should be lifted is at least as important as when it should be invoked. The lifting of martial law has been crucial to the political development of many nations throughout the twentieth century. Many regimes have been accused of extending the period of martial law until all political opposition has been crushed.

Questions concerning when martial law should be invoked, when it should be lifted and who should make such determinations are crucial to the study of martial law in any nation. Martial law is not mentioned in the United States Constitution, nor is it defined by state or federal statutes. Acceptance of martial law therefore lies in its role in the pursuance of other constitutional and statutory provisions. These include constitutional provisions empowering Congress to call out the militia for suppressing insurrections and repelling invasions, and acts of Congress authorizing the president to employ the army, navy and militia to put down insurrections against federal or state authority.

Historically, martial law has been invoked in times of emergencies by the president, state, and territorial governors, and military commanders. The validity of proclaiming martial law, maintaining it or actions taken in pursuance of it has been challenged. In instances, civil courts have been called on to determine the legality of the actions taken.

Martial Law in Early America

In America, the use of troops in emergencies does not of itself bring about a state of martial law. When, for example, President George Washington sent federal troops in Pennsylvania in 1794 to put down the Whiskey Rebellion, he specifically ordered the military commander to adhere to existing laws and to deliver the rebels to regular civil courts for trial. A federal judge and a district attorney accompanied the troops to insure this.

Such care for civil authority was not taken when the City of New Orleans was in danger of attack during the War of 1812. General Andrew Jackson, fearing that its legislature might capitulate to the British, placed the city “under strict martial law.” Jackson forbade the legislature to convene and ordered the governor of Louisiana to take field command of the militia. Martial law was not withdrawn after the American victory in the Battle of New Orleans (January 8, 1815), which eliminated the threat to the city, nor was it lifted after news of the peace treaty arrived.

When a legislator publicly criticized Jackson’s policies, Jackson had him tried as a spy by a military tribunal. When a federal judge granted the legislator a writ of habeas corpus (to have his case heard before a civil court) Jackson put his honor under house arrest and later expelled him from the city. After martial law was lifted the judge returned to his bench and fined Jackson $1,000 for contempt of court.

Martial Law During the Civil War

During the Civil War Congress passed several laws to deal with acts of treason and rebellion against the federal government. With several million people taking part in the “rebellion” and no federal judicial authority to deal with them, such acts were not enforceable in the South. In areas under federal control, a policy of having the military deal with persons suspected of treason and rebellion was adopted. At first, the policy applied only to specific localities, mostly in the embattled border states.

In September of 1862, President Abraham Lincoln issued a sweeping proclamation declaring that all persons obstructing enlistments, resisting the draft or giving aid and comfort to rebels “shall be subject to martial law, and liable to trial and punishment by court-martials or military commissions.” Habeas corpus privileges were suspended for all persons arrested or already imprisoned on such charges. Approximately 18,000 civilian suspects were rounded up and held until their potential threat to the union cause could be assessed. Most were released within a few days after taking an oath to refrain from secessionist activities.

Suspension of such a basic civil liberty as habeas corpus roused sharp protests. The habeas corpus right developed in Anglo-American law to prevent the government from arbitrarily arresting and holding individuals without charging them with a crime (an ideal way of suppressing political opposition). This was complicated during the Civil War, however, because suspects could escape to rebel areas if they were not held by military authorities.

This issue resulted in a confrontation between the President and the Chief Justice of the United States Supreme Court. On circuit in Baltimore, Chief Justice Roger Taney issued a writ of habeas corpus for a Maryland secessionist charged with destroying railroad bridges. When union officers ignored the writ, Taney issued an opinion in Ex parte Merryman (1861) denying the president the power to suspend the writ because the section on habeas corpus and its suspension was in Article I, section 9 of the United States Constitution, which dealt with the legislative power of Congress. Lincoln replied in a special message to Congress in which he justified the arrest and detention of individuals “dangerous to the public safety” because the nation’s legal system was incapable of dealing with a full-scale rebellion and that breaking the law “to a very limited extent” was preferable to having government handcuffed and unable to suppress the rebellion.

In March 1863, Congress passed the Habeas Corpus Act, which “legitimized” the president’s internal security program without jeopardizing its own authority or that of the federal judiciary. The statute authorized the president to suspend the habeas corpus privilege but required the government to provide federal courts with lists of political prisoners being held and to release those whom grand juries failed to indict.

In 1863, a military court in Indiana sentenced Lambden Milligan to death for disloyal activities including an alleged plot to overthrow the state government. In Ex Parte Milligan (1866), however, a divided United States Supreme Court ruled that the president violated the Habeas Corpus Act of 1863 by ignoring the requirement of a grand jury indictment and that Congress lacked the authority to institute military courts to try civilians in areas remote from the actual fighting and where civil courts were open. “The Constitution,” the Court’s majority opinion stated, “is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” The majority therefore followed that “martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”

The court unanimously agreed that Milligan should not have been deprived of his habeas corpus privilege. Four justices, however, disagreed with the majority opinion that Congress did not have the power to authorize military commissions in areas threatened by invasion or insurrection. For them, the threat of war or insurrection was sufficient to warrant martial law and that is should be left to Congress to decide whether or not to employ it.

Martial Law in Economic Crisis

Crisis arising from America’s phenomenal economic growth in the nineteenth and twentieth centuries resulted in numerous proclamations of martial law. When strikes by mine workers in Idaho, Colorado and several other states broke into armed conflicts, state governors declared martial law and called on federal troops and state militias to quell the violence. To deal with the economic crisis of the 1930’s depression, President Franklin D. Roosevelt, in his 1933 inaugural address, asked Congress for “the one remaining instrument to meet the crisis — broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” A cooperative Congress, which among other things passed an emergency banking bill over-night, with most Congressmen not even reading it, made it unnecessary for Roosevelt to assume “emergency power.”

Martial Law in Hawaii

The threat to the nation quickly shifted from economic to the military with Japan’s attack on Pearl Harbor on December 7, 1941. Within hours of the attack, the territorial governor declared martial, relying on the Hawaiian Organic Act of 1900, which authorized him to do so “in case of rebellion or invasion, or eminent danger thereof, when the public safety requires it.” All authority was turned over to the military, which proceeded to remove persons from militarily sensitive areas, set curfews, regulate night driving, censor newspapers and radio broadcasts, and regulate prices on everything from groceries to prostitutes. Civil courts were closed and the writ of habeas corpus was suspended.

Martial law was not new to Hawaii. The islands were seized and temporarily ruled by the French and British military forces during the nineteenth century. A sailors’ riot in Honolulu forced the Kingdom’s marshal to declare martial law in 1852. In 1895, martial law was declared when the supporters of Queen Liliuokalani attempted to overthrow the Republic of Hawaii. A military court tried 191 rebels and sentenced five, including Robert Wilcox, to death. Their sentences were later commuted and all of them were freed by the following year.

Protests against martial law were minimal in 1941 and in early 1942. As the threat of invasion diminished, however, clamor to end martial law began to rise from some of the territory’s leading citizens, including its attorney general J. Garner Anthony. Over military objections, President Roosevelt partially restored the independent functions of the civil governor and the regular civil courts in February 1943. Martial law was suspended in October 1944.

The first legal challenge to Hawaii’s martial law came from Dr. Hans Zimmerman, a German-born American citizen who had a successful osteopathic practice in Hawaii. Zimmerman was picked up and held by the military as a security risk shortly after the Pearl Harbor attack. Denial of a writ of habeas corpus granted him by the federal district court was upheld by the Ninth Circuit Court of Appeals on the grounds that the military had full authority to declare the state of emergency and to determine when is should be lifted. Another case involved Saffery Brown, who was sentenced to death by a five-man military tribunal for the murder of his wife. Residents of Maui were shocked by the death sentence, which they did not recall ever being rendered on the island. An appeal to President Roosevelt resulted in the sentence being commuted to life imprisonment.

Legally and constitutionally, the most significant case challenging martial law in Hawaii during World War II was Duncan v. Kahanamoku (1946). In the case the Court avoided reviewing the constitutionality of suspending the writ of habeas corpus on the ground(s) that the appeal was taken by the court after the writ was restored in 1944. It did rule, however, that the establishment of military tribunals in Hawaii to try civilians was illegal. The Court held that Hawaii’s Organic Act did not authorize the declaration of martial law except under conditions of actual invasion or rebellion. In its view, the primary purpose of the Organic Act was to extend to civilians in Hawaii the same constitutional guarantees enjoyed by those living in other parts of the United States.

Internment of Japanese Americans

One of the biggest concerns of the military during World War II was Hawaii’s large Japanese American population. The 159,000 Hawaii residents of Japanese descent (124,000 American citizens and 35,000 aliens) made up almost half of Hawaii’s population. Mass internment was out of the question. Some thought was given to shipping them to camps in the mainland. Eventually, 1466 residents of Japanese descent were detained on suspicion of disloyalty, while numerous others were “removed” from militarily sensitive areas.

Martial law was not invoked anywhere on the mainland during World War II. The president’s Executive Order No. 9066, however, gave military commanders wide authority for securing the west coast against possible attacks by the Japanese. On March 2, 1942, General J.L. DeWitt, commanding general of the Western Defense Command, established Military Areas No. 1 and No. 2, which covered the west coast from Washington State to Mexico. In these areas, curfews were set for German and Italian nationals, and all persons of Japanese Ancestry. A proclamation on March 27th prohibited Japanese-Americans from leaving the coastal area. A May 9th order formally excluded all persons of Japanese origin from the area. The net result of these contradictory orders was to force Japanese-Americans to report to Civil Control Stations, from where 112,000 of them, more than 70,000 of whom were American citizens, were shipped off to “Relocation Centers.” Some remained there for years. Most internees lost all of their property left behind on the west coast.

The government’s actions were challenged in three cases that reached the United States Supreme Court. In Hirabayashi v. United States (1943), a case involving a University of Washington student who was arrested for failing to report to a control center and for violating curfew, the Court evaded the relocation question and ruled that the government was within its authority in ordering curfews in the military areas.

Korematsu v. United States (1944) involved an American citizen who volunteered for military service but was turned down for his ulcers and was later arrested for refusing to leave the war zone. The Court’s majority separated the exclusion issue from that of detention, and ruled that the government was justified in its actions because in wartime civilians have to defer to military judgment and bear its hardships. “Hardships,” the Court observed, “are a part of war, and war is an aggregation of hardships.” Three justices dissented, calling it a plain “case of convicting a citizen as punishment for not submitting to imprisonment in a concentration camp, solely because of his ancestry,” without considering any evidence relating to his loyalty to the United States.

On the same day, the Court unanimously granted a writ of habeas corpus to Mitsuye Endo, a citizen whose loyalty had been clearly established, thus freeing her from the Tule Lake War Relocation Camp. In Ex parte Endo (1944), the Court ruled that the government had no right to confine persons of undoubted loyalty. By making this ruling, the Court avoided the question of the constitutionality of the actions of the president and technically attributed the violation to the abuse of the presidential order by war relocation authorities.

The internment of Japanese-Americans has haunted the nation’s conscience. In 1948, Congress took the first step to undo some of the damage by passing the Japanese American Evacuation Claims Act. The statute sought to recover property loss incurred by the relocation, but because compensation was limited to claims that could be verified by written records, less that $37 million of the estimated $400 million of property loss was recovered. In 1983, the Commission on Wartime Relocation and Internment of Civilians (established by Congress in 1980) published its report “Personal Justice Denied”. The report condemned the internment as a “grave injustice,” resulting from decisions “conceived in haste and executed in an atmosphere of fear and anger at Japan,” and that Executive Order No. 9066 was not justified by military necessity, but was the result of “race prejudice, war hysteria and a failure of political leadership.” Subsequently, a federal district court vacated Korematsu’s conviction in 1984, and Congress passed a law in 1988 awarding $20,000 to each person interned in a relocation camp.


Throughout American history there has been a willingness to accept military authority in times of emergency. Because of the irony of having to suspend the very constitutional system martial law ultimately attempts to protect, Americans have not been willing to allow those who invoke it to determine its validity or its parameters. This has been left to the courts. American courts have not created any permanent doctrines on martial law but have established some guidelines for its imposition. The bottom line, however, remains necessity, because without it there is no real justification for martial law.


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