MARTIALIS, QUINTUS GARGILIUS, a Latin writer on horticultural subjects. He has been identified by some with the military commander of the same name, mentioned in a Latin inscription of A.D. 260 (C. I. L. viii. 9047) as having lost his life in the colony of Auzia (Aumale) in Mauretania Caesariensis. Considerable fragments of his work (probably called De hortis), which treated of the cultivation of trees and vegetables, and also of their medicinal properties, have survived, chiefly in the body of and as an appendix to the Medicina Plinii (an anonymous 4th century handbook of medical recipes based upon Pliny, Nat. Hist. xx.-xxxii.). Extant sections treat of apples, peaches, quinces, almonds and chestnuts. Gargilius also wrote a treatise on the tending of cattle (De curis boum), and a biography of the emperor Alexander Severus is attributed by two of the Scriptores historiae Augustae (Aelius Lampridius and Flavius Vopiscus) to a Gargilius Martialis, who may be the same person.
Bibliography.—Gargilii Martialis ... fragmenta, ed. A. Mai (1846); Plinii secundi quae fertur medicina, ed. V. Rose (1876); De curis boum, ed. E. Lommatzsch (1903) with Vegetius Renatus’s Mulomedicina; “Gargilius Martialis und die Maurenkriege,” C. Cichorius in G. Curtius, Leipziger Studien, x. (1887), where the inscription referred to above is fully discussed: see also Teuffel-Schwabe, Hist. of Roman Literature (Eng. trans.), § 380.
MARTIAL LAW. “Martial law” is an unfortunate term and in a sense a misnomer. It describes a suspension of ordinary law, rendered necessary by circumstances of war or rebellion. The confusion arose from the fact that the marshal’s court administered military law before the introduction of articles of war, which were in their turn merged in the Army Act. But martial law is not a law in the proper sense of the term. It is the exercise of the will of the military commander, who takes upon himself the responsibility of suspending ordinary law in order to ensure the safety of the state. It is declared, by a proclamation issued by the executive, that ordinary law is inadequate to cope with the circumstances, and provides exceptional means of arrest and punishment of persons who resist the government or aid the enemy. But such a proclamation, while invariably issued in order to give publicity to the suspension of ordinary law, does not invest the step with the force of law. It is simply military authority exercised in accordance with the laws and usages of war, and is limited by military necessity. Yet in reality it is part of common law which justifies acts done by necessity for the defence of the commonwealth when there is war. H. W. Halleck in his work on International Law (i. 544), says, “Martial law originates either in the prerogative of the crown, as in Great Britain, or from the exigency of the occasion, as in other states: it is one of the rights of sovereignty, and is essential to the existence of a state, as is the right to declare or to carry on war.”
This opinion, however, must be read, as regards the British Empire, with the passage in the Petition of Right which is reproduced in the preamble of each annual Army Act, and asserts the illegality of martial law in time of peace in the following terms:—“No man shall be fore-judged or subjected in time of peace to any kind of punishment within this realm by martial law.” Therefore, whilst martial law is declared illegal in time of peace, it is indirectly declared lawful in time of war and intestinal commotion when the courts are closed, or when there is no time for their cumbrous action. C. M. Clode, in Military Forces of the Crown, argues that the words of the Petition of Right and of the Military Act since the reign of Anne are plain in this respect “that ... the crown possesses the right of issuing commissions in war and rebellion.” But he rightly adds that the military commander may permit the usual courts to continue their jurisdiction upon such subjects as he thinks proper. Legislative enactments have also sanctioned this special jurisdiction at various times, notably in 1798, 1799, 1801, and in 1803. These enactments lay down that exceptional powers may be exercised “whether the ordinary courts shall or shall not be open.” As an invariable rule an act of indemnity has been passed on the withdrawal of martial law, but only to protect any person in charge of the execution of martial law who has exceeded his powers in good faith.
There has been much discussion as to whether, in districts where martial law has not been proclaimed, a person can be sent for trial from such district into a district where martial law was in operation. It is argued that if the ordinary courts were open and at work in the non-proclaimed district recourse should be had to them. The Privy Council in 1902 (re Marais) refused leave to appeal where the Supreme Court of Cape Colony had declined to issue a writ of Habeas Corpus in these circumstances. Mr Justice Blackburn in his charge in R. v. Eyre says, “I have come to the conclusion that, looking at what martial law was, the bringing of a person into the proclaimed district to be tried might, in a proper case, be justified.” The learned judge admits that there should be a power of summary trial, observing all the substantials of justice, in order to stamp out an insurrection by speedy trial.
Whilst martial law is the will of the commanders, and is only limited by the customs of war and the discretion of those who administer it, still, as far as practicable, the procedure of military law is followed, and a military court is held on the same lines as a court-martial. Charges are simply framed without technicalities. The prisoner is present, the evidence of prosecution and prisoner is taken on oath, the proceedings are recorded, and the sentence of the court must be confirmed according to the rules of the Army Act. Sentences of death and penal servitude must be referred to headquarters for confirmation. In the South African War (1899-1902) these limits of procedure were observed, and when possible will always be.
Entering more into detail, the term martial law has been employed in several senses:—(1) As applied to the military forces of the crown, apart from the military law under the old Mutiny Acts, and the present annual Different Applications of Martial Law. Army Acts. (2) As applied to the enemy. (3) As applied to rebels. (4) As applied to civilian subjects who are not in rebellion, but in a district where the ordinary course of civil life cannot be maintained owing to war or rebellion.
1. In regard to the military forces of the crown, the superseding of justice as administered under the Army Act could only occur in a time of great need; e.g. mutiny of five or six regiments in the field, with no time to take the opinion of any executive authority. The officer in command would then be bound to take measures for the purpose of suppressing such mutiny, even to putting soldiers to death if necessary. It would be a case where necessity forced immediate action.
2. Martial law as applied to the enemy or the population of the enemy’s country, is in the words of the duke of Wellington, “the will of the general of the army, though it must be administered in accordance with the customs of war.”