Some Special Provisions of the Constitution
(1) Limitation of Martial Law
Within the last few years we have read of committees from Washington visiting the State of West Virginia to investigate a strike of coal miners which was in progress there. Martial law had been declared, and the Supreme Court of Appeals of that State, with one judge dissenting, held that martial law could be declared by the Governor, and that the question as to necessity lay with him, that a military court could properly try men for offenses committed, though it was shown that some civil courts were open in other parts of the same county before which the men might have been taken for trial.[1] Such action as this revolutionizes the generally accepted doctrine as to martial law in this country, and it would certainly surprise and outrage people in Massachusetts if the Governor could in his own discretion declare martial law and supersede the civil courts and government by military tribunals. The founders of that State government, however, were cognizant of the possibilities of abuse through martial law and the suspension of the writ of habeus corpus; consequently they provided in her bill of rights that "no person can in any case be subject to law-martial or to any penalties or pains by virtue of that law except those employed in the Army or Navy and except the militia in actual service but by authority of the Legislature."[2]
This provision is far broader than one merely restricting the power to call out the militia of the State. There is a radical difference between calling out the militia to suppress a tumult or riot and the application of martial law to the
