596
The Green Bag
martial law, by the summary procedure peculiar to such a court, with the im position of a penalty so severe as to be justifiable only by military necessity. Were such extreme measures proper under the circumstances? In any country, the occurrence of such disturbances as those at Barcelona last July would have furnished occasion for armed resistance to revolt and the establishment of martial law. Millions of dollars' worth of property had been destroyed, priceless works of art re duced to ashes, and atrocious acts of vandalism perpetrated. The police were powerless to deal with a situation of such turmoil. A resort to martial law and military justice, under such condi tions, may have been not only just but necessary. In the United States, if an insurrection like that in Spain were to arise, the army could not, in attempting to put it down, deprive those not actually engaged in the rebellion of the right of habeas corpus, and martial law is subject to limitations imposed by the United States Constitution. Luther v. Borden, 7 How. 1; Ex Parte Milligan, 4 Wall. 2. But such limitations on martial law are matters of municipal law, and need be the same in no two countries. The international law of war has to a notably large extent defined the rights of mili tary occupation, including those of sub stituting martial law for the law pre vailing in the occupied region, but none of these rules is of binding application to the law of internal war. Hence, while international law takes, in general, a humane and lenient view of the methods by which martial law is to be administered, this does not show what course is legal or illegal in Spain, the municipal law of which may authorize most drastic measures for suppressing armed insurrection.
When Francisco Ferrer was shot, how ever, the insurrection in Barcelona was under control. The conditions which call for extreme measures of precaution seem to have been absent. It was undoubt edly necessary to rely on the presence of the armed military force for the con tinuance of order, but there appeals to have been no necessity for suspending the jurisdiction of the ordinary civil courts so completely as to make the charge against Ferrer triable only before a mili tary tribunal. Foreign spectators have been unable to see the justification of any real necessity or danger for the trial of Ferrer by a court of martial law. It is probable that the course pursued was technically legitimate under Span ish law, but that does not make it rea sonable or moral from the standpoint of the enlightened world. The character of Maura, the deposed prime minister, has been blackened, but he was the instrument of the forces which seek the protection of life and property and the maintenance of social order, and as such he was more bigoted than villanous. In a monarchical coun try socialism is a far more serious menace to social order than in a republic, for popular government provides a free out let for pent-up radicalism and prevents explosions which might otherwise occur. Ferrer, while personally by no means to be classed as a criminal, may easily, therefore, have been regarded a danger ous enemy of public order. To treat him as such was to misunderstand him, but Ferrer had himself misunderstood modern society, as he showed by his socialistic teachings. He had laid him self open to misconstruction. Error, like truth, may have its martyrs, but those of the former are not equally glorious. Ferrer died a lamb of sacrifice on the altar of the heathen cult of socialism. The crime of Ferrer was that he mis-
