There would seem to be but little question but that the doctrine stated by the majority in the Milligan case is essentially a sound one, namely, that actual necessity and not constructive necessity as determined by legislative declaration, alone will furnish justification for substituting martial for civil law. It would seem, however, that in one respect the opinion is open to criticism. The statement is too absolutely made that "martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration." It is correct to say that "the necessity must be actual and present," but it is not correct to say that this necessity cannot be present except when the courts are closed and deposed from civil administration, for, as the minority justices correctly point out, there may be urgent necessity for martial rule even when the courts are open. The better doctrine, then, is, not for the court to attempt to determine in advance with respect to any one element, what does, and what does not create a necessity for martial law, but, as in all other cases of the exercise of official authority, to test the legality of an act by its special circumstances. Certainly the fact that the courts are open and undisturbed will in all cases furnish a powerful presumption that there is no necessity for a resort to martial law, but it should not furnish an irrebuttable presumption.

The English doctrine of martial law is substantially similar to this, and an excellent illustration of the point under discussion is given by certain events growing out of the late British-Boer war.

During that struggle martial law was proclaimed by the British Government throughout the entire extent of Cape Colony, that is, in districts where no active military operations were being conducted and where the courts were open and undisturbed, but where considerable sympathy with the Boers and disaffection with the English rule existed. Sir Frederick Pollock, discussing the proper law of the subject with reference to the arrest of one Marais, upholds the judgment of the Judicial Committee of the Privy Council (A. C. 109, 1902) in which that court declined to hold that the absence of open disorder, and the undisturbed operation of the courts furnished conclusive evidence that martial law was unjustified.23