In time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. Constitutional provisions may also affect the question. Those affecting the United States contain limitations stricter than those found in some of the State Constitutions. Ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and unobstructed exercise of their jurisdiction.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]

The first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. General Jackson, in 1814, was at New Orleans in command of the military Department of the South. The city was threatened with invasion. He declared martial law, and not long afterwards arrested a Mr. Louaillier, a member of the State legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. Louaillier obtained a writ of _habeas corpus_ from the District Judge of the United States (Judge Hall), directed to Jackson. The General, instead of obeying it, forthwith took possession of the original writ, arrested the Judge, and deported him from the city. Two days later despatches were received from the War Department officially announcing the conclusion of a treaty of peace. Judge Hall now returned, and a rule to show cause why Jackson should not be attached for contempt of court was issued. Jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circumstances calling for his proclamation of martial law. He had been told, he said, that the legislature was "politically rotten." The Governor had warned him that the State was "filled with spies and traitors," and advised, in the presence of Judge Hall, and with no dissent from him, that martial law be proclaimed. It seemed a time when "constitutional forms must be suspended for the permanent preservation of constitutional rights." The lengthy paper, which was evidently written by a skilful lawyer, closed thus: "The powers which the exigency of the times forced him to assume have been exercised exclusively for the public good; and, by the blessing of God, they have been attended with unparalleled success. They have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[Footnote: Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the General to answer certain interrogatories respecting his course of conduct, by a day appointed. He appeared on that day and declined to answer them, with this concluding shot: