![]() ![]() ![]() 75, 94, 95, 99 (1807), asserting unequivocally that the “power to award the writ by any of the courts of the United States, must be given by written law” and that Congress may deny the privilege, inter alia, to prisoners in state custody (reiterated in Carbo v. See Marshall, C.J., in Ex parte Bollman and Swartout, 8 U.S. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law but the power to award the writ by any of the courts of the United States, must be given by written law.”) (Emphasis added) It would therefore stand to reason that whereas the power of the US Supreme Court to grant a writ of habeas corpus may not be taken away by statute, the power of other courts to grant this writ may be taken away, since it has been granted by a statue (28 U.S.C. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. (“Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. M atthew hale, T he H istory o f C ommon L aw in E ngland 40 (1713) (observing that martial law is not law but something indulged rather than allowed as law).Įx parte Bollman and Swartout, 8 U.S. Therefore, the general who declares martial law, and commands that it shall be carried into execution, is bound to lay down distinctly the rules and regulations according to which his will is to be carried out’.Ĭf. Subsequently, in a speech in the house of lords, he expressed the same opinion, and added: ‘In fact, martial law means no law at all. Lord Wellington, in one of his dispatches from Portugal, in 1810, in speaking of martial law, observes, that, as applied to persons, excepting officers and soldiers and followers of the army, for whose government there are particular provisions of law in all well-regulated countries, it is neither more nor less than the will of the general of the army, and that he punishes either with or without trial, for crimes either declared to be so, or not so declared by any existing law, or by his own orders. It also provides a completely new and heretofore absent historical interpretation of article 34 of the Indian Constitution that attempts to shed new light on this relatively unknown and unanalyzed provision of our Constitution. While placing martial law in a comparative common law perspective, and by focusing in detail on India in that comparison, Part V of this chapter further divides martial law in India in two time-zones ( viz., pre- and post-independence). Martial law in India has never attracted the attention of constitutional and public law scholars in India, and apart from a few contributions here and there (including a detailed law review article by one of the co-authors), there is practically no literature available on the subject. ![]() ![]() Part V of this chapter makes a unique contribution. A useful historical and legal survey of martial law in UK is then provided. The use of martial law seems to have been more prevalent in the United States as compared to the other two jurisdictions under consideration. Parts I and II of this chapter provide a brief history of martial law. This chapter is an extremely detailed treatment of martial law in the three compared jurisdictions. ![]()
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