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Chapter VIII: Martial Law
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Law_151-200.indd 180 1/27/12 1:23 PM Chapter VIII MARTIAL LAW No sharp Therights already treated of in the foregoing chapter, as for hne can be • . drawn be- example the nght to personal freedom or the nght to free extween ~~~;:[Jaw pression of opinion, do not, it may be suggested, properly ~:N:~::d belong to the province of constitutional law at all, but form part either ~~~~~1::;,. of private law strictly so called, or of the ordinary criminal law. Thus A's right to personal freedom is, it may be said, only the right of A not to be assaulted, or imprisoned, by X, or (to look at the same thing from another point of view) is nothing else than the right of A, if assaulted by X, to bring an action against X, or to have X punished as a criminal for the assault. Now in this suggestion there lies an element of important truth, yet it is also undoubted that the right to personal freedom, the right to free discussion, and the like, appear in the forefront of many written constitutions, and are in fact the chief advantages which citizens hope to gain by the change from a despotic to a constitutional form of government. The truth is that these rights may be looked upon from two points of view. They may be considered simply parts of private or, it may be, of criminal law; thus the right to personal freedom may, as already pointed out, be looked at as the right of A not to have the control of his body interfered with by X. But in so far as these rights hold good against the governing body in the state, or in other words, in so far as these rights determine the relation of individual citizens PART II 180 Law_151-200.indd 181 1/27/12 1:23 PM MARTIAL LAW towards the executive, they are part, and a most important part, of the law of the constitution. Now the noticeable point is that in England the rights of citizens as against each other are (speaking generally) the same as the rights of citizens against any servant of the Crown. This is the significance of the assertion that in this country the law of the constitution is part of the ordinary law of the land. The fact that a Secretary of State cannot at his discretion and for reasons of state arrest, imprison, or punish any man, except, of course, where special powers are conferred upon him by statute, as by an Alien Act or by an Extradition Act, is simply a result of the principle that a Secretary of State is governed in his official as in his private conduct by the ordinary law of the realm. Were the Home Secretary to assault the leader of the Opposition in a fit of anger, or were the Home Secretary to arrest him because he thought his political opponent's freedom dangerous to the state, the Secretary of State would in either case be liable to an action, and all other penalties to which a person exposes himself by committing an assault. The fact that the arrest of an influential politician whose speeches might excite disturbance was a strictly administrative act would afford no defence to the Minister or to the constables who obeyed his orders. The subjects treated of in this chapter and in the next three chapters dearly belong to the field of constitutional law, and no one would think of objecting to their treatment in a work on the law of the constitution that they are really part of private law. Yet, if the matter be looked at carefully, it will be found that, just as rules which at!irst sight seem to belong to the domaiq of private law are in reality the foundation of constitutional principles, so topics which appear to belong manifestly to the law of constitution depend with us at bottom on the principles of private or of criminal law. Thus the position of a soldier is in England governed, as we shall see, by the principle, that though a soldier is subject to special liabilities in his military capacity, he remains while in the ranks, as he was when out of them, subject to all the liabilities of an ordinary citizen. So, from a legal point of view, ministerial responsibility is simply one application of the doctrine CHAPTER VIII [18.221.141.44] Project MUSE (2024...