Wayne E. Lee

2/_ increasingly used as a tool for suppressing disorder more generally. Its use was particularly marked in the case of large-scale rebellion, although usually the state quickly shifted back to the ordinary course of law. If the king was “at war,”

3/_ often defined by having his standard displayed, martial law required no further legal proclamation. Offenders taken in the course of military operations could be swiftly executed." When not at war, a martial law commission could be issued

4/_ that allowed local administrators to invoke it, generally for the purposes of confiscated the property of executed rebels, although usually limited to small property holders. Large estate confiscations were limited to crown courts.

5/_"In the wake of a rebellion, an administrator armed with martial law could execute a range of rebels with little ceremony and less evidence. In practice in England, the Tudors carefully calculated their response to rebellions.

6/_ They asserted their unquestioned claim to power and eliminated the leadership of their defeated opponents, but they also assuaged important political players and displayed appropriately royal mercy." (see how this relates to history of pardon power!)

7/_ In Ireland, however, martial law commissions became MORE common an increasingly used corruptly to transfer land to English hands. In Munster, for example "The legal tangles involved in distinguishing between those rebels pardoned versus those attainted versus those executed

8/_ by martial law allowed ample scope for corrupt seizure of land." This practice of using martial law for land seizure, esp. outside of England itself, greatly expanded during English Civil War, and esp. under Cromwell's regime.

9/_ This in part becomes the source of American colonists' fear of standing army (since much emigration in mid-seventeenth century was tied to ECW/Cromwell). It wasn't just the standing army that was the problem: it was using the army to enforce martial law.

10/_ British ministerial behavior toward colonies in the 18th century did nothing to assuage these fears (and those fears got boosted in England also), and so they reappear in spades in Declaration of Ind. and in American constitutional division of powers over military

11/_ HOWEVER. Once established as the ruling government over the independent United States, American elites became concerned over the central government's LACK of power to suppress rebellion.

12/_ Whiskey Rebellion suggested one part of the problem, but so did the Haitian Revolution. In one view, the 1805 Insurrection Act represented a legal compromise between presidential and state power, in which the president

13/_ followed old English Riot Act provisions of ordering rebels to stand down (and giving them time to do so), but could then "order the military to enforce or ensure the enforcement of the laws of a state or the federal government and to suppress rebellion"

14/_ Some argue that it was fear of SLAVE rebellion (a'la Haiti) that led to creation of Insurrection Act. The Federal government (in the executive branch) was thus GIVEN more power because of a race-based fear.

15/_ Ironically, the posse comitatus act of 1878 was passed to *handcuff* executive power in the wake of the end of Reconstruction. Southern congressmen and senators did not want the president deploying troops in their states. (Although the Insurrection Act remains an exception).

16/_ This is why the only coup thus far in American history occurred in Wilmington in 1898 when white Carolinians violently overthrew the multi-racial city government (and killed numbers of people), and there was no federal response.

17/_ In other words, much of the legal architecture surrounding the use of military force within the US is in response to race relations.

18/_ The rest of it is in response to the paradoxes of federalism and the contests over state and federal jurisdiction.