he ne

EN

 

eee
DATE DUE me

 

 

 

 

 

 

 

 

 

 

 

oe Ee

 

 

 

 

 

COLLEC 1,

 

 

 

 

 

 

 

allalet au

 

 

 

GAYLORD Sta
PRINTEDINUSA |

 

 

 

 

 

Jitiweaawas UL Jo ch UUURT UF

CHANCERY,

With some Observations on the Pleadings in that Court.
By the late EDMUND ROBERT DANIELL, Barrister-at-Law.

FOURTH EDITION.

WITH CONSIDERABLE ALTERATIONS AND ADDITIONS,

Incorporating the Statutes, Orders, and Cases to the Present Time, and Braithwaite’s
Record and Writ Practice.

TOGETHER WITH

References to a Companion Volume of Forms and Precedents.

By LEONARD FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law ;
With the assistance of JOHN BIDDLE,

OF THE MASTER OF THE ROLLS’ CHAMBERS.
: In Two Volumes. Vol I. Price £1 11s. 6d., cloth.

 

 

** Volume II. and the companion volume of Forms will be published very shortly.

!
yay
x

 

 

 

habeas PUBLISHED | Cornell University Library

 

KD 4442.F51

 

 

 

 

 

 

 

Roscoe’s Nisi Prius.-—A T A treatise on martial law :as allowed b'
on the Trial of Actions at Nisi | :
MILLS, M.A., of the Inner T
MARKBY, M.A., of the Innd
Buckingham. Royal 12mo. cloth 3.1924 021 908 995 ti

Rogers on Elections, Elecuon vommuttees, and Kegis-
tration, 1865, with an Appendix of Statutes and Forms. Tenth Edition. With
the New Registration Statute, and all the Election and Registration Cases to the
present time. By F. 8. P. WOLFERSTAN, Esq., of the Inner Temple, Bar-
rister-at-Law. 1865. In demy 12mo. IJ. 12s. cloth.

Dodd and Brooke’s Practice of the Court of Probate.—

The Law and Practice of the Court of Probate, Contentious and Common Form ;
Syible Sie DG lesa Shee Seo EAE PP one me solicitor

! 9. Price

tutes,
Jurisdic-
amary of
Y, M.A,
ege, and
iderably

possible.
value as a

3, and
[reatise,
1e Stamp
? Inland
¢, of the

al for
at-Law,
nd with
ARLES
ataining
ruptcy,
‘olonial,
ist of all
orms of
ups and
nission,
. cloth,

Ww | Law

Cornell Law School Gibrary tts
| enone
| nd im-
|

 

Cooke on Inclosures.—Fourth Edition. 1864. The Acts
for Facilitating the Inclosure of Commons in England and Wales ; with a Treatise
on the Law of Rights of Commons in reference to these Acts, &. With Forms, as
settled by the Inclosure Commissioners. By G. WINGROVE COOKE, Esq.,
Barrister-at-Law. Fourth Edition. 12mo. Price 16s. cloth,

The Law of Contracts.—By John William Smith, Esq.,

Author of “‘ Leading Cases,” ‘‘A Treatise on Mercantile Law,” &c. Fourth
Eiition. By JOHN GEORGE MALCOLM, Esq,, of the Inner Temple, Barrister-
at-Law. 8vo. 1865. Price 16s. cloth.

B

 

 

 

re)
A TREATISE

ON

MARTIAL LAW:

As Allowed by the Law of England,

IN TIME OF REBELLION;

WITH

PRACTICAL ILLUSTRATIONS DRAWN FROM THE OFFICIAL
DOCUMENTS IN THE JAMAICA CASE, AND THE EVIDENCE

TAKEN BY

Che Roval Commission of Cnguiry,

COMMENTS, CONSTITUTIONAL AND LEGAL.

By W. F. FINLASON, Esq.

—
Of the Inner Temple, Barrister-at-Law,

AUTHOR OF ‘‘COMMON LAW PROCEDURE,” ‘‘CROWN AND NISI PRIUS REPORTS,”
ETC.

“Inter arma silent leges.”

LONDON:
STEVENS & SONS, 26, BELL YARD,
LINCOLN’S INN,
Paw Wooksellers and Publishers,

MDCCCLXVI.
“A
SER2UT 0,
PRINTED BY C. W. STEVENS,

5 GREAT QUEEN STREET, LINCOLN’s INN FIELDS, W.C.
Joos

Maes cane
edn? A
law WoL

x
PREFACE

THe case of Jamaica has directed attention to the subject of
martial law in time of rebellion, which has for ages happily
been obsolete in this country (a), and was always wholly ex-
ceptional, and had no place in our institutions; whence it is,
probably, that there is no treatise upon it, and that many
erroneous ideas have prevailed upon it.

The works of Simmons and M‘Arthur on Court-martial,
though they contain many passages on the subject, entirely in
accordance with the views submitted in this work, do not enter
fully into it, treating it as exceptional to ordinary military
law, as it is undoubtedly exceptional to ordinary municipal law.
And all that it was deemed necessary to say about it in the

(a) The origin of all these errors may probably be traced to the fact,
that the Petition of Right abolished martial law in time of peace, and that,
happily, there has not been in this country, since the Revolution, any state
of rebellion that could be deemed to amount to war. And, in Ireland,
there were special statutes upon the subject, which, however, recognize and
reserve the right of the Crown to declare martial law in time of rebellion.
But, practically, in this country, martial law, as Lord Loughborough,
speaking in a case in time of peace, said in Grant v. Gould (2 Hen. Black-
stone’s rep. 67), ‘has long been exploded,” z.e,, practically exploded ; as it is
in time of peace. And hence also, Blackstone, in his Commentaries (vol. ii. p.
561) said, “that martial law in its true sense, has no place in the institutions
of this country.” But the Mutiny Acts are only necessary to authorize
the Crown to apply, in time of peace, those regulations which the Crown
may, by prerogative, apply in time of war ; and of rebellion,\which amounts
to war. But the Petition of Right only applies to the realm of England,
and not even to Ireland, still less the colonies; and even if it applied to
other countries than England, it applies, like the Mutiny Act, in time of
peace, and not war (Stephens’ Commentaries, vol. ii. p. 561).

a2
Cae

“ Commentaries on the Laws of England” (vol. ii. page 561) is:
— Martial law may be defined as the law (whatever it may be)
which is imposed by the military power, and has no place in the
institutions of this country, unless the Mutiny Act, and the
Articles of War established under that Act, be considered as
of that character.” But the Mutiny Act, and the Articles of
War, apply only to military persons; and martial law, as here
truly stated, is the extension of military law, or power, to the
whole population (a), and which, from the very nature of
such a measure, must necessarily be entirely exceptional and
extraordinary, so that it “can have no place in our institu-
tions.”

As martial law can only be declared in a time of rebellion,
which amounts to war, and need not be declared if there is a
military force adequate to the occasion (as always has been the
case in this country ever since the Revoiution), and, therefore,
the action of the military, iz aid of the civil power, and under
the civil power, at common law (which has often been re-
quired), has always been found sufficient ; there has naturally
arisen a confusion between the function or power of the
military foree, when thus actiug in aid of the civil power, and
its function or power under martial law (4). And from this

(a) In the passage above cited from Stephens’ Commentaries, it is added,
“cand though our Sovereign formerly exercised the right of proclaiming
martial law within the kingdom, that prerogative seems to be now denied
to them by the Petition of Right.” ‘This is put doubtfully, and only as to
the realm, but it isobviously erroneous, for the Crown has lost no preroga-
tive through the Petition of Right, which was directed only against abuses
of the prerogative, and, on this head, the abuse lay in applying a pre-
rogative as to war to a state of peace (vide Hallam’s Const. Hist. England,
vol. i.).

(b) Indeed, the bounds between these two functions or powers are not in
some cases clearly defined. ‘Thus, Mr. Hallam treats as sophistical the
doctrine Lord Mansfield laid down, that the military may, without mar-
tial law, act to any extent necessary in suppression of actual insurrection.
And when they attack large bodies of people not in arms, nor engaged in
any felonious act, as they did in the Lord George Gordon riots, it is, to say the
least doubtful, whether what they do is legal, and whether such cases may
not require an Act of Indemnity. And to remove the difficulty occa-

sioned by these doubts, is, indeed, one great object of declaring martial law,
(vide post, pp. 26—80.)
ae:

confusion, or from the notion that martial law, in its true
sense, has been abolished by the Petition of Right, has arisen
all the errors upon the subject.

It is to be borne in mind, that if the subject of martial law
has happily become obsolete in this country, it has only been
so because, by reason of a standing army, the military force
always available in support of the Executive, is so enormous,
that no rebellion would have any chance of obtaining any head
at all. But it is far otuerwise in other countries, our colonies
or dependencies, in which the military force is comparatively
small, and the English inhabitants are a weak community,
surrounded by an overwhelming mass of a population of a
different, and, generally, more or less hostile and disaffected
race, liable at all events to sudden and hostile influence (a).

When, however, the military act in support of the Executive,
at common law, that is, to suppress actual riot, or insurrection,
they merely act in aid of civil power, and are subordinate to
it; whereas, under martial law, the military have independent
power of action; for the whole district, in fact, is placed under
military command and military discipline, the only authority
being that of the Commanding officer. All the mistakes that
have arisen on the subject have arisen from confounding these
two different, indeed utterly opposite, state of things (0).

(a) Thus, Mr. Hallam observes, “ that the Executive power has acquired
such a coadjutor in the regular army, that it can in no probable emergency
have much to apprehend from popular sedition ” (Const. Hist. Eng. vol. iii.
p. 263). He elsewhere notices, ina note, the immense accession to the
power of the Executive, arising from the Riot Act, which, combined with
the actual power residing in the standing army, makes it irresistible.
“ Among the modern statutes, which have strengthened the hands of the
Executive power, we should mention the Riot Act, 1 Geo. I. 2c. 5, whereby
all persons tumultuously assembling, to the disturbance of the public peace,
and not dispersing within one hour after proclamation made by a magis-
trate, are guilty of felony.” The effect of which is, that the military, acting
in aid of the civil power, may at once attack them. And so, if the reading
of the Act is prevented, as in J) amaica it was, by attacks upon the magis-

“tracy, that equally makes the meeting felonious.

(b) Lord Mansfield particularly pointed out this distinction, on the
occasion of the Lord George Gordon riots in 1780, Every man might, and
( viii )

done, either by soldiers or civilians, at common law, é.e., the
resistance of persons in the committal of acts of outrage, or
the arrest of those who have committed such acts, and that
there is no power of trial of non-military persons by courts-
martial; so that, in short, martial law is common law, the
declaration of martial law a mere empty form, and worse than
a mere form, leading only to a mischievous delusion, in inducing
the military to suppose that they can do under it anything more
than they can do without it, at common law.

That, after the declaration of martial law, nothing more can
be done than could be done before ; that the military can only
act in aid of, and in subordination to the civil power, as at
common law ; and that, therefore, all execution of sentences
under trial by court-martial are utterly illegal. That there is
in reality no power to “declare martial law” at all, or of
establishing any other or different state of law than that which
exists at common law, under which the military can act to any
extent in putting down actual present outrage or riot (a), but
cannot, when they have arrested offenders even in the act, deal
with them by way of punishment ().

That the power of the military, after the declaration of
martial law as before, is strictly limited by necessity, in the

proceed to the trial and execution of such offenders, and cause them to be
executed according to the law martial.” This is a legislative recognition
that, by the “law martial,” in time of war, offenders may be tried, and this
was only abolished within the realm, and in time of peace. So in the Mutiny
Acts, from that time to the present, it is martial law in time of peace, which
is declared illegal. :

(a) Lord Mansfield, at the time of the Lord George Gordon riots, ex-
pressly stated that this was not martial law (Adolphus’ Hist, Eng., vol. i 3
and so did Chief Justice Tindal, in the case of the Bristol riots. , ‘

(0) This view resting on the notion that the Mutiny Act is necessary to
authorize trial by court-martial, whereas that only applies to militar
persons, and is only necessary to enable the Crown to maintain a slatsting
army in time of peace ; and in time of war the Crown acts by its prero ake
which applies equally to rebellion, because, in law, rebellion is war . ai t
the Crown (vide Hale's Pleas of the Crown, Hawkins’ Pleas of the Gs io
and Foster’s Crown Law). And the Crown may declare it so to be ‘rent
is sufficiently formidable to require such a declaration, and cannot b ae
with at common law (vide post, 3879), : poe
( ix )

strict legal sense of present, actual, instant, physical necessity(a),
for the limited purposes of resistance or arrest, and does not
include such powers as may be required, in a larger sense of
the word, for the suppression of a rebellion; and that, there-
fore, as there can never be a necessity, in that stricter sense,
for the summary trial of a man who may be, and is, arrested
and in custody, there can never be such a trial by court-
martial under martial law (4), and no prisoner can ever be

legally executed, either by summary enquiry or upon trial by
court-martial.

That, therefore (e), all such trials and sentences are utterly
illegal, and require an act of indemnity, to relieve the actors
in such proceedings, from legal, and even criminal, liabilities
for their acts in execution of such sentences. And that the
parties are entirely dependent upon the bill of indemnity (d)

(a) At common law, if it be necessary, in the arrest of a person charged
with felony, either by reason of flight or resistance, he may be killed (R.
Woolmer, 1 Mod. C. C.), and, of course, a man in the actual committal of
an act of felony, may, if necessary, to prevent it, be killed. And so, by
the Riot Act, as to rioters. But these powers are strictly limited, by com.
mon law, to present, instant, actual necessity.

(6) It was not explained whether, upon this new view, soldiers are liable
to summary trial under martial law, or why, if they are not, they should not
be, or why, on the contrary, if they are so, other persons, equally under
martial law, are not so. It is obvious, indeed, that, as already pointed out,
upon this view, martial law is simply nothing at all, or rather worse than
nothing, “‘a mockery, a delusion, and a snare.”

(c) This is directly opposed to repeated declarations of the Legislature,
even in our own times, not only negatively, in the Mutiny Acts not deny-
ing the power of the Crown to declare martial law in time of rebellion, but
afirmatively, in several acts distinctly and expressly declaring that power,
as, for instance, the Irish Acts, 43 Geo. III., 117, and the 3 & 4 W. IV., . 4,

(d) This, again, is an entire error; no act of indemnity is legally neces.
sary, for acts done under, and in the execution of martial law, as to
persons coming under its operation, and within the time and place of its
operation ; and no instance will be found of any act of indemnity purely for
such acts. Acts of Indemnity, as, for instance, the Irish Acts, already
alluded to, or the Jamaica Act, are much larger in their scope, and protect
acts done under martial law before declaration, or after its expiration, or in
places where it has not been declared, or such irregularities as are likely to
occur—as, for instance, acts done without military order, but honestly in

o
( x )

for protection from criminal prosecution, for those acts which
may have preserved to the Crown a valuable colony, and pre-
served its population from massacre. Of course, if such a conclu-
sion be Jaw, it must be so, however monstrous it may seem; but
it assuredly deserves consideration whether it be law. Because,
if it is so, men called upon to act in such emergencies may
decline to incur such formidable criminal liabilities in mere
reliance upon a Dill of indemnity, which, as we have seen,
may be resisted, suspended, or rejected.

It was attempted to support these views by the publica-
tion of an opinion, obtained from two very eminent lawyers,
not likely to be wrong on any legal question on which their
minds had been fully and fairly brought to bear, but which was
written upon the representation that there had not been a
rebellion (a) such as would have justified martial law, in its
strict and proper sense, and therefore was written rather with
reference to its secondary or more popular sense, of the power -
of the military in the suppression of actual insurrection, which
is, or may be, merely a power in aid of the civil power, and
subordinate to it.

Moreover, it was expressly stated in that opinion (0), that

the suppression of the rebellion, and so forth—and it was no doubt in this
sense only that the officers of the Crown in 1849, in the case of Ceylon, were
said, or were stated to have said, that a bill of indemnity was required;
that is, was practically required, for errors certain to occur.

(a) It was published on the 16th of January, and had been written some
time before, upon no other facts than those disclosed in the first dispatches
received, which it was considered by many hardly disclosed sufficient facts
to show that there had been a rebellion. And these eminent lawyers were
careful to add that they could not say there might not be facts which could
afford a justification for what had been done, although they could not see
such facts in the face of the first despatches. It is obvious, therefore, that
they did not apply their minds fully to the question of the lawfulness of
martial law in time of rebellion, but to that which some insist is to be
deemed martial law, and certainly is included in it, the power and function
of the military in aid of the civil power in the suppression of actual insur-
rection, and throughout their opinion it is obvious that they have this in
their mind.

(6) “ Martial law is the assumption of the officers of the absolute power
exercised by military force for the suppression, of insurrection and the restora-
( xi )

the powers to be executed under martial law might be carried
to any extent necessary, not only for the suppression of insur-
rection, but for the restoration of order and lawful authority ;
and nothing more could be required, for a full definition. of
martial law, than to add that of the measures necessary for
this purpose, and their continuance, the military Commander
alone must judge, and that there may be all such measures as
are applicable to the army, or the enemy, in time of war,
including that which the Petition of Right expressly recognizes
as an essential part of martial law, the summary trial and
execution of offenders.

It is not, therefore, clear that, putting a reasonable con-
struction upon this opinion (a), the author may not be entitled

tion of order and lawful authority. The officers of the Crown are justified
in the exercise of force, and the destruction of life and property to any
extent that may be required for the purpose. But they are not justified in
inflicting punishment after resistance is suppressed, and after the courts can
be re-opened. And courts-martial, by which martial law, in this sense of
the word, is administered, are not, properly sptaking, courts-martial, or
courts at all, but are mere committees formed for the purpose of carrying
into execution the extraordinary power assumed by the Government.”
All which is quite accurate as to the power of the military in aid of the
civil power in suppression of actual insurrection, but has no application to
martial law, in the strict sense of the term. Because, as to that, it practi-
cally leaves the whole question open ; for what is “necessity,” and who is to
judge of it? And with reference to what? To actual insurrection only, or
rebellion, which is quite different? And again, is it “necessity” with
reference to the instant exigencies of the particular time or plaee at which
any particular act is done, or with reference to the larger considerations
applying to the suppression of a rebellion, which may render necessary, in
that sense, acts not necessary in the narrower sense.

(a) Putting a reasonable construction on the opinion, this seems the
result of it. It is intelligible to tell the Commander that he may do all that
he deems necessary to suppress the rebellion, and subject, of course, to
the control of the Governor or Viceroy, and of the Crown, and of Parlia-
ment, amply sufficient to prevent or to excusc any error or excesses, in the
honest pursuit of the object; excesses which mght arise, from causes over
which he had little or no control; false information, exaggerated appre-
hension, the general state of alarm, &c. But it would be idle to tell a
General to do all that might be thought necessary, in the opinion of a
Middlesex jury, some months afterwards. No one would act under such
a liability.
( xii)

even ‘to appeal to the high authority of these eminent and
able, lawyers, for they expressly affirm the lawfulness of any
measures which the military Commanders may deem necessary ;
and it would seem to follow that he may judge of their nature
and. continuance, and that they may include deterrent measures,
and that if, in his judgment, execution upon summary enquiry,
or on trials of court-martial, are necessary for the speedy
punishment of offenders, such trials might be lawful. It
was, however, maintained that martial law has, in reality,
no effect at all, and that all trials and executions under it are
illegal (a).

The Author has ventured to put forward a view of the law
which certainly leads to very opposite conclusions, that is to say,
that rebellion is a state of war (0) in which subjects throw off
their allegiance, and justly lose the benefit of that common law
which they, by their own acts, disturb; that this state of
war suspends the operation of the common law, as regards all
measures taken under military order and authority in carrying
out martial law ; and that, as against those who have caused it,
the state of war is deemed to have commenced when they
began the rebellion. That the declaration of martial law is only
that mere formal recognition, by the Crown, of the existence of
this state of war, and does not so much cause it as declare it,

That the declaration of martial law is the acceptance
and recognition by the Crown of the state of war thus

(@) It was stated that above a hundred prisoners who had been tried by
courts-martial under martial law in Jamaica, and sentenced to imprison-
ment or penal servitude, were released by the Colonial authorities, an some
such notion as this (vide post, p.388 and p. 411). —_ Logically, this view
would involve the conclusion that all the sentences were illegal, and all the
exccutions murders. It is hoped, therefore, that the step was taken on some
other ground, probably on Some considerations of policy, or clemency.

(b) That is rebellion, as distinguished from riot; a rising or insurrec-
tion of a general character, or likely to become so from its nature, with
or without any organization, by reason of the general nature of the
objects, and the common feelings of disaffection, in which it has had its
rise, and the instinctive sympathies by which it is likely to extend and
spread, especially when it is a rising of a class or race. It has never
been doubted in our law, that an armed rising, with a gencral unlawful
( xiii)

already began, and forced upon it, by its rebellous subjects (a
war, be it observed, on their side, not lawful, but criminal), and
that it has a definite effect, which exposes them to the penalties
and severities, while it does not confer upon them the privi-
leges or powers of war. That its effect is to place under martial
law, that is under military power, all the inhabitants of the
district, and subject them to the severe military discipline,
which is enforced in time of war, among the forces of the
Crown (a), and those who aid the rebels to the severe military
measures which are put in force against the enemy ; not merely,
be it observed, those which are applicable to a lawful enemy in
honourable war, but rather those which apply to the forces
of the Crown in astate of mutiny, or to the soldiers of either
side who are pursuing irregular warfare as stragglers and
marauders; in short, such as are applicable to rebels, who are
criminals, as well as enemies.

That is, that the effect of declaring martial law is, to apply to
the whole population, not, indeed, the actual terms of the
Mutiny Acts (6) and Articles of War (which in terms only

object, is a rebellion; for example, a rising, with a view to expel or exter-
minate a class of the population, or acquire the possession of waste lands,
and the like. (See the authorities cited, pp. 2, 25).

(a) This certainly is the import of the declaration of martial law which
(vide post, p. 127) proclaims that the military may treat as enemies all
whom they consider to be in hostility against the Crown or its loyal
subjects, and it is always understood and stated to be as above declared.
Thus it is stated in Simmons on Court-martial, that the effect is to apply
military law or power to the whole population. So Sir D. Dundas declared
in 1850, so Mr. Headlam, the Judge-Advocate-General, stated in 1859 to
the Defence Commission (vide post, pp. 109,379).

(6) The Mutiny Acts are only necessary to empower the Crown to
keep up a standing army in the country in time of peace for a country
in astate of war. The Crown acts by its prerogative power over the
army (Barwise v. Keppel, 2 Wils. rep. 314). And this prerogative
power exercised by the military Commanders in time of war, in a country
inastate of war, is an arbitrary, discretionary military power (Johnstone v.
Sutton, 1 Term reports). The Mutiny Acts, moreover, merely enact that
the Crown may make articles of war, and that the articles of war so made
shall be reco@nised for military persons (Grant v. Gould, 2 Hen. Blackstone's
rep. 68), but the proviso that no offence shall be punished with’death, except
those thus specified, does not apply abroad (R. v. Suddis, 1 Hast, rep. 316).
( xiv )

apply to military persons), but that military law, or rather
arbitrary military power, which the Crown, apart from Mutiny
Acts and Articles of War, possesses and exercises, by virtue of
its prerogative over military persons in time of war, and in a
country in a state of war, may exercise, so far as in the judg-
ment of the military Commander is necessary, over the entire
population. That these measures may be either repressive,
aggressive, or deterrent, and include not only measures in the
field, but also summary powers of punishment, with the
penalties usual in military law.

That the effect of martial law is to establish an absolute
discretionary military authority, such as the House of Lords
have held (a) exists in a state of war. That the nature
of the measures to be taken in the field must entirely
depend upon the nature of the rebellion to be suppressed,
or of the warfare to be subdued. That, as the war on
the side of the rebels may not be carried on, in the manner of
regular warfare, by open encounter in the field, and active
resistance, 30 the measures taken for the suppression cannot
be restricted to such encounters, or to the suppression of such
resistance, nor can its severities be necessarily limited to men
found in arms. That if a warfare is carried on by the rebels
by means rather of the terror of numbers, and immense pre-
ponderance of physical force, and by means of ravage, pillage
and devastation, rather than by the use of arms, the measures
of suppression must be adapted to that irregular mode of war-
fare; and that if bodies of rebels, after committing acts of
depredation and devastation, withdraw into thickets and
forests upon the approach of the military, for the very
purpose of avoiding encounter, and in the hope of lurking
there in shelter until the military are exhausted or withdrawn,

The general principle is, that the Crown had absolute discretionary power
over the army except it is limited by the Mutiny Acts and Ardicles of
War; but where they are silent, that power holds and is recognised
(Bradley v. Arthur, 4 Barn. and Cress. rep. 304). And they do ee "

the power of the Crown out of the realm in time of war. . sa

(4) Johnstone v, Sudton, 1 Term reports (vide post, pp. 78—79)
C xv )

when they may resume the insurrection with impunity, the
military may be forced, in carrying out martial law, to attack
such hordes of men, whether armed or unarmed, with the view
of dispersing them, driving them from their shelter, and com-
pelling them to surrender; and that if the military cannot in
any other way get at them, to capture them, they may be
forced to fire at them, in order thus to drive them out and
make them surrender. That, in short, the measures to be
taken in the field must necessarily depend upon the nature of
the rebellion and the judgment of the military Commander.
And that, as to the mode of dealing with prisoners captured, it
must be governed by the same judgment, or the usages of the
service, in cases of rebellion or mutiny, and not either on the
rules of common law or the rules of regular war (a). That
if the exigencies of the emergency would admit of the dilatory
course of proceeding, it would not be a case for martial law
at all; but that, assuming martial law to be in force, it is
an absolute practical necessity that it should comprise the
power of dealing summarily with prisoners, and that by “the
justice of martial law” (4), according to the Petition of Right,
prisoners who have taken part in the rebellion are liable (¢) to

(a) According to which, persons would be entitled to be kept until
exchanged or released, which can hardly be the treatment to which captured
rebels are entitled, as they more resemble marauders who are liable to
instant execution. On the other hand, when the military are merely acting
in aid of the civil power at common law, they cannot deal with prisoners at
all, but must hand them over to the civil power to be regularly tried. If
the emergency would admit of this dilatory course, it would not be a case
for martial law at all; the theory of which is that, by reason of
the convulsion caused by the rebellion, the ordinary law cannot take
its course, or that, even if it could, it would be far too dilatory to meet
the emergency.

(6) Vide post, p. 11.

(c) As already mentioned, and as noticed by all our old lawyers, a rebel-
lion may be formidable, and, if allowed to go on, fatal; although, at the
outset, there may be few, if any, arms in the hands of the insurgents. They
may by force of numbers overpower any resistance, and speedily possess
themselves of arms; and they may, in the meanwhile, by means of arson
and devastation, spread desolation and ruin in a few days over a fertile
country.
( xvi)

instant trial and execution, whether actually found with arms
in their hands, or not: arms being only one of many means
of carrying on a rebellion, and spreading devastation and ruin
through a country.

That the effect of martial law being to apply military rule to
all the inhabitants, they are all equally liable to trial by court-
martial, not indeed for mere civil offences, but for offences con-
nected with and arising out of the rebellion, and therefore
cognizable by the “justice of martial law.’ And whether or
in what cases such courts should be assembled, or more sum-
mary enquiries shall suffice, is one of the matters which, like
the question, whether deterrent measures are necessary at all,
and like all other matters under martial law, are entirely under
the control of the military Commander. But if he orders
such courts to assemble for the trial of persons, military or
non-military, for such offences, whether or not in conformity
with regular and ordinary military law (a), they are as much
lawful tribunals as courts-martial so assembled, and their
sentences fully as legal as those of any court, civil or military.

That, of course, therefore, for carrying out such sentences,
no one can require a bill of indemnity (4), and that for none of
the measures under military order and authority, under or by
virtue of martial law, can any one possibly be liable, civilly or
criminally, or require such a protection (c); and that, so far as
regards measures so taken, it is not material to their legality,
that they turn out in the event to have been excessive ; and
that whether or not they may be censurable or even culpable
on that account, persons cannot be criminal for directing or

carrying them out honestly, however erroneously, in obedience
to orders, and under martial law. g

(a) Which requires a general court-martial in capital cases, but in the
Ceylon case it was fully established that this did not apply in times of
mutiny or rebellion ; when all such rules are suspended or dispensed with.
And see per Macdonald, C.B., in Governor Wall’s 28 Sta. Tri. (vide
post p. 84), where he seems to recognize the same doctrine.

; (5) Which may, however, be necessary to save donbtg as to jurisdiction
in particular cases.

(c) Though it may be necessary for acts done without order or
authority,
( xvii)

That, therefore, no bill of indemnity (a) is necessary to protect
those who, under martial law, ie. after its declaration, before
its cessation, and in the district proclaimed, have given or
obeyed orders, under the supreme military authority, in carry-
ing out measures of martial law, including courts-martial ; but
that it can only be necessary, and is only available, for the pro-
tection of those who have, either before or after the declaration
of martial law, or out of the district (b), assumed and acted
upon the powers of martial law, or have acted honestly for
the suppression of the rebellion, without military orders, or
_beyond their orders or their powers under military law.

That there could be no really criminal liability for measures
taken under martial law and military order, nor acts done
honestly, however erroneously, in the suppression of the
rebellion, though there might, technically and legally, be such
a lability for acts done without order, and not under martial
law, though honestly in the suppression of the rebellion ; and
that the bill of indemnity would only cover (c) such acts, and

(a) Thus it was that the Irish Act (43 Geo. IIL.) afforded an indemnity
for acts done under the assumed powers of martial law, without its declara-
tion, &c., (vide post, p. 42—85).

(b) As in the arrest out of the district of persons who had been
implicated in the rebellion; whose acts may have been out of the district,
or before the declaration of martial Jaw. In the author’s opinion, for
reasons fully explained in the work, the arrest of persons out of the
district for acts done in the district, would be within the powers of martial
law, by analogy to the fundamental principle of common law, that the
trial of crime is local; but others might be of a different opinion, and,
perhaps, for such acts, a bill of indemnity may be proper, even if not
strictly necessary, to prevent any doubt that might arise. So as to other
irregularities, acts without orders, &c, These matters form the proper scope
of a bil] of indemnity. 5

(c) It is as much an error to suppose that a bill of indemnity covers
everything, as to suppose that it is required for everything. It is not
required for measures taken under martial law, however erroneously ; it zs
required for measures not taken under and by virtue of martial law but
honestly for the suppression of the rebellion. It will not cover acts not done
for that purpose, but wantonly and wickedly. A reference to the terms of
the Irish Act, or the Jamaica Bill, will suffice to prove this. No bill of
indemnity that was ever drawn was wide enough to cover acts of really

wilful murder ; but only acts which might, technically, through want of
b
C aa )

would not cover acts done under colour of martial law, not
bonestly for the suppression of rebellion, but wantonly, reck-
lessly, from private malice, or mere thirst of blood.

For it is to be carefully borne in mind that the protection
afforded by the common law applies only to those acts which
have been really done in carrying out martial law (a), that is,
under and by virtue of the military authority which it estab-
lishes, and does not apply to acts voluntary and wanton, and
not under orders. So, also, it is to be observed, that the
officers who have acted, are responsible to the Crown and to
Parliament for the measures they have directed, and the acts
they have approved, under martial law, and those acts and
measures may be censurable, even though lawful.

These propositions appear to be implied in the opinions of the
Judge-Advocate-CGeneral of thelateand present Government (6),
and in the issuing of the Royal Commission to enquire into
the measures taken in the suppression of the recent rebellion.
in Jamaica, on account of alleged “excessive and unlaw-
ful severities” in those measures of suppression (¢). For if

legal authority, be deemed so. No legal authority covers acts done under
colour of it. The bill points, therefore, toacts in the suppression of the
rebellion. If the Provost Marshal, in executing a man for threatening his
life, had not, under martial Jaw, authority to do it, but an officer might
have done it, then it would be covered by the bill. If he did it under
martial law, it would not require the bill. If he did it wickedly, not really
thinking that his life was threatened, but pretending to think so, it would
not be covered by the bill. But such a case is, to say the least, exceedingly
improbable and unlikely to occur (vide post, p. 375).

(a) The House of Lords has established the great legal principle, that a
man cannot set up an authority unless he has really acted upon it. (Lucas
v. Nockells, 10 Bing.) In the case of » common law authority, which is
definite, this means that what may be done is what is directed, and no
more ; in the case of a more general or discretionary authority, it means
that the party must have had an authority—as, that conveyed in martial law
and military order ;—and that he honestly intended to pursue the authorit
however mistaken he may have been, and however excessive the Cee
may have been, through mistake, false information, exaggerated alarms,

undue excitement, &e., all of which may have been m
i ore or ]
though not criminal. ssi

(0) Vide post, p. 107—109.
(c) Vide post, p. 257—297.
( xix )

those measures, which had been taken under martial law, and
which, as abundantly appeared on the face of the military
reports and dispatches, were with some insignificant excep-
tions (a), such as were all utterly illegal et common law, and
could not possibly have been legal, except under martial law,
as here expounded,—then, unless martial law, in the sense in
which it is here expounded, had been lawfully established,
they were, in a legal sense, all obviously illegal and criminal,
and it would have been idle to enquire as to measures “ of ex-
cessive and unlawful severity.” For, then all the capital
executions—to the number, as was avowed, of hundreds—all
the floggings, and all the burnings of houses, were simply
illegal and criminal; and it would have been of little use to
send out an enquiry into the degree to which measures so
utterly unlawful had been carried. But, on the other hand, if
martial Jaw had been so established, and the measures taken
under orders were all presumably legal, there might still have
been an excess of acts done without orders, or beyond orders, or,
in some cases, irregularities, which would require a bill of
indemnity ; or even in the measures taken under orders, there
may have been a degree of what was censurable or culpable,
though not criminal; and in all this, there would be legiti-
mate and intelligible scope for the enquiry by a Royal
Commission.

And if, as it is conceived to be law, the measures taken
under military order and authority, and in carrying out martial
law, were lawful, and therefore could not be called in question
in any court of justice, civil or criminal (4), then it is manifest
that the censure or approval of the Crown, after enquiry

(a) The exception of a few rebels killed in actual commission of felonious
outrages (vide post p. 144), and of a few killed in actnal encounter, (vide
post, p. 833) ; with these exceptions, all of them were, in a legal sense, mur-
dered, unless martial law existed in the sense here explained. And all the
floggings and burnings were illegal and criminal; and it would be absurd to
call this excessive severity (vide post, p. 302—304).

(b) For acts not done under orders, but voluntarily and criminally,
criminal proceedings could be taken. Acts done without orders, but
honestly for the suppression, would be covered by the bill of indemnity. :

b 2
( xx )

either by the Secretary of State, or a Royal Commission, as to
the conduct of the officer of the Crown, with reference ve con-
siderations of humanity and propriety, would be the fitting and
the only way of pronouncing a judgment upon the moral
character of the measures thus taken, or of the conduct of
those engaged in them.

The propositions, however, here submitted, all, it 1s obvious,
resolve themselves into, and arise out of, the proposition that
armed rebellion is war against the Crown and its legal sub-
jects. In our law, armed rebellion has always been deemed 0
be war against the Crown, and to justify if necessary for its
suppression, war by the Crown, z.c., martial law; and not the
less so, on the contrary, all the more so, if the revolt was of
the nature of a servile revolt, or the revolt of the servile
classes (a), or of the peasantry—a species of revolt which has
been deemed the worst and most dangerous, more especially in
the case of a class now, or lately, in the condition of slavery,
and inheriting all the evil passions and feelings of that hateful
condition.

The experience of past ages, and our own (0), has attested

(a) The insurrection of slaves is the most dreadful of all commotions.
“The West Indian negroes exterminate by fire and sword the property and
lives of their masters. The slaves of St. Domingo exceed the atrocities
of the Parisian populace.” (Alison’s Hist. Eur. vol. 1,1. p. 40). And
elsewhere, alluding to the insurrection of the serfs in the middle ages :
“The insurrection of the peasants (the historian says) was easily sup-
pressed, the victory was fortunate for real liberty, the triumphs of the
peasants would have exhibited the horrors of a negro revolt.” (Ibid 65).
And although Mr. Hallam reprobates the notion of “trifling insurrections,”
being treated as acts of “levying war,”—he by no means denies that
formidable insurrections are so. (Const. Hist, Eng., vol. 1. p. 158). And
Mr. Justice Keogh, in his admirable and masterly charge on the special
commission for the trial of the rebels in Dublin last year, laid it down
that any attempt to raise an armed insurrection, however weak and mis-
managed it may be, is not less a levying of war against the Crown.

(6) Thus it has been twice exemplified in Jamaica in our own time,
In 1832, there was a rebellion among the negroes, which their friends
declared was “ falsely so called,” because they had set their hearts upon
having land without paying rent for it, or, what is the same thing, with-
out having the rent set off against them. This is really the gravamen of
a well-known work, written by a member of a, celebrated family (Six
Months in the West Indies, by J. J. Gurney, published 1847). There was
( xxi)

the wisdom of the law, in holding armed risings for general
objects—especially connected with the possession or acquisition
of land—to amount to war, for the very reason that, quite
apart from any actual organization or conspiracy, the instinc-
tive sympathy inspired by common feeling and a common object,
will make it spread until it involves the whole community in
war; so that even if it is not, at first, so formidable as to have
the character of actual war, it must, if allowed to spread,
ultimately come to that.

Whether there is an armed rising, whichis arebellion, and a
levying of war against the Crown (a), is a question of fact,
upon which, as the law is so old and well-settled, there can
never be any doubt, though the extent to which it is formidable,
in a particular case, may admit of doubt, so that there is no

overwhelming evidence before the Royal Commission that the recent rebel-
lion had its origin in the same feeling, a notion that by reason of eman-
cipation, they were entitled to the “back,” or waste lands. The able
letters of the Times’ correspondent made this clear. And there was evi-
dence that for some time books—written in the spirit of the above-
mentioned work, palliating rebellion, and alluding to the leaders of the
last rebellion as heroes or martyrs, rather than criminals—had been cir-
culated among the negroes, along with appeals to their passions as to the
possession of the lands. (Vide evidence of Revd. B. Kay, Revd. Mr.
Ward, Rev. Mr. Beckwith, and others. Parl. report, et vide post, p. 271).

(a) Thus, in the Jamaica case, the rising, as described in the official
accounts received by the Governor, and afterwards abundantly verified on
the evidence, was as follows :—“ Sergeant M‘Kenzie to the Hon. BE.
Jordon. Police Office, Morant Bay, October 12. The volunteers were
under arms at the Court-house during the sittings of the Vestry, when the
peasantry in a large body came into the town, first attacked the police-
station, and took possession of the arms, the police at the time
being at the Court-house. The mob then advanced to the parade,
where the volunteers were drawn up. His Honour the Custos began to
read the Riot Act, the mob advanced close to the volunteers, when the
voluntecrs fired, and some of the mob were killed. Several gentlemen
were killed and others wounded. The Court-house, school-house, and
the fort-house were burned down. The police force is disorganised. The
prisoners in the district prison have been liberated.” Now, the case,
as thus described, or rather a case resembling it in all respects except
the massacre, had been long ago held to bea levying of war against the
Crown, and it is so described in all the books on Crown Law. (Vide Hale’s
Pleas of the Crown, cited post, 11—13.)
( xxii)

practical probability that martial law will ever be declared in
acase in which it is not legally allowable.

Whether there is or is not a rebellion, is, as our lawyers
always held (a), a question of fact ; and, still more so, whether
it is sufficiently formidable to require martial law for its sup-
pression. The whole subject of martial law, therefore, is pre-
eminently so practical a subject, that, though it is based upon
certain principles, which are but an expansion of certain well-
known doctrines of the common law, as to the levying war
against the Crown, it is best elucidated by practical illustra-
tions ; and hence the importance of the recent case of Jamaica,
in which the subject first received authentic and official exposi-
tion, and will long be remembered and referred to, as what
lawyers call “a leading case” upon the subject.

And it is conceived that it at once establishes and illustrates
the two fundamental propositions, that declaring martial law,
in case of rebellion, is an actof State; and that carrying out
martial law is a matter of military authority.

It is apprehended that the declaration of martial law, in
case of rebellion, is, as an act of State, necessarily valid,
although it may be more or less censurable for erroneous
judgment.

It is of such importance, that it should be understood,
above everything, that martial law, being the remedy for a
formidable danger and a terrible emergency (2), should not-be

(a) In the Ceylon case, the enquiry proved abortive, at all events in this
sense, that though it elicited the opinions of official persons, the Judge-
Advocate-General, and others, it did not elicit any action on the part of the
Crown. In the Jamaica case, the despatches of the Secretary of State con-
tained valuable comments on the reports of military men; then there was
a Royal Commission, composed of eminent persons, whose opinions
upon the snbject, after full enquiry and consideration, could not be other-
wise than very valuable for the purposes of future guidance; and if the
Author is right in his view, that the conduct of those who have declared
or carried out martial law (ic, their conduct in really and honestly
carrying it out) can only be reviewed by the Crown, the report of such a
Commission would be the nearest approach to a judicial opinion attainable.

(6) That is, a rebellion amounting to war against the Crown, and oo
formidable to be put down, even by the military, acting merely a aid of
(| xxiii )

declared, unless there is such a danger and such an emergency,
which can never arise, except through the deficiency of a
military force, adequate to the emergency, acting merely in aid
of the civil power; that the author has been careful to set
forth fully the circumstances and the considerations which
were deemed by the authorities, in the case of Jamaica (a), to
justify and require that terrible remedy.

One of the most important points illustrated in the Jamaica
case—the point, indeed, which lies at the basis of the whole
subject, and is of more importance than any other—is, that
martial law can never be required or justified, unless there is a
rebellion too formidable to be dealt with, even by the military,
when merely acting in aid of the civil power (8).

Next to this, perhaps the most important point, arising in a
constitutional point of view, is, that, at all events, assuming
there is a rebellion (c), the declaration of martial law, as an

the civil power, and requiring those more prompt and terrible measures
which the military can wield only in a state of war. This is the theory of
martial law (vide post, p 26—30).

(a) In that case, it was manifest that the negroes themselves, ihe class
among whom the rebellion broke out, knew it would be war. The evidence
of numerous witnesses proved that they themselves so spoke of it among
themselves—before it broke out, and when it had broke out. As, for
instance, they were heard talking, saying “a war would break out in about
three weeks’ time, to begin at Montego Bay, and go ronnd the island;
then buckra would see hell.” (Statement of Hunter.)

(6) The authorities may have been right or wrong in their judgment
upon that point ; but the important thing to be observed is, that they put
it upon that ground, and mainly upon that ground. All through it was put
upon this,—that there were only 1,000 troops in the colony, and the
executive committee urged that 2,000 more should be applied for (Parl.
pap. 21.), so that, in their view, there were only one-third of the requisite
number. This was urged as the reason for declaring martial law, and for
retaining it until reinforcements arrived, and were distributed throughout
the island ; as to which, some differences occurred which caused delay.

(c) It is not worth while to discuss the question, how it would be if there
were no rebellion, and no rising of the people at all—a case not likely
practically to occur ; since it would simply be an act of madness, and no
one would obey it. Practically, the step would never be taken, unless
there was some rising—some insurrection ; as to the degree or danger of
which, perhaps, judgments might differ; and as it would be a matter of
judgment, like all other acts of Government, it would be destructive of
(| xxiv)

act of State or of Government, is necessarily valid, even
although, like all other acts of Government, it is liable to the
censure of the Crown or of Parliament, if rash, erroneous, or
ill-judged, though it would be valid, as within the legal power
of the Government.

Another point practically illustrated by the Jamaica case
(and which was only an illustration of a legal principle well-
established in our law of treason), was, that the danger against
which martial law is required, as it arises mainly by reason of
overwhelming preponderance of force on the side of rebellion,
may exist (@) by reason of common feeling among a large
mass of the population, without arms or actual organization.

In such servile insurrections, it is manifest, an immense
amount of mischief may be done, in the way of arson and de-
vastation, without the use of arms (0), and that if the impulse
has its origin in feelings common to an enormous mass of
the population, actual organization is not necessary, and there
is a danger far more formidable, and infinitely more likely to
be fatal, unless promptly encountered.

Government to make the validity of the act of Government to depend
upon people’s ideas as to its soundness or wisdom.

(a) Thus it was, that in an old law of treason, founded as all our common
law was, upon practical experience, it was well understood and laid down
that there may be a levying of war against the Crown, by means of the
force and terror arising from enormous numbers, as well as from arms ;
(vide Hale’s Pleas of the Crown, tit. Treason). This is obvious enough,
and was often illustrated in the insurrections of the serfs during the middle
ages. 100,000 men, armed with scythes and reaping hooks, may be as
formidable to a small armed force, as w hundredth part of that number
armed ; added to which, such a mass will, of course, soon obtain arms. And

though such insurrections were in the long run always subdued, they
always did dreadful mischief.

(6) This the blacks well understood, for they said,— If buckra has
gun, negro has fire stick 1” (vide post, p. 112). The insurrection in 1832
in Jamaica was mainly carried on by means of burnings and devastations
and hundreds of plantations were reduced to ruin. Added to this, nhere
the numerical superiority is enormous, arms are as utterly mnnecessary as
organization. Any means may be used to commit a murder, when there
are a hundred men to commit it—and a hundred men, with sticks or stones
are formidable to a few men, whether armed or unarmed. :
( xxv )

The nature of the danger, so well understood by our old
lawyers, arising from this tendency of a popular rising, through
the instinctive sympathies of class, and the presence of a common
feeling of disaffection, apart from any actual organization, was
well illustrated in the Jamaica case, and formed, perhaps, its
most remarkable and formidable feature (a).

That rebellion is war, is well understood by those who cause
it, as was well illustrated in the recent instance of Jamaica(d),

(a) Thus, numerous witnesses proved that in other parts of the island, when
the news of the outbreak arrived, and the better sort of blacks were con-
sulted about it, they said it was sure to spread if not checked, and that,
if it came to them, they would be forced to join it. Thus, one said, “ that
there were some good people who were not sensible, and some sensible
people who were not good, and he would advise that precautions should be
taken ” (Ev. of Lowe). On asking one negro what his people would do,
a magistrate got this answer: ‘The people like you very well, Massa, but
they have no power to protect you.” At that time the rebels were expected
over the mountains, and this negro, who was a favourable representative of
his class, said he should certainly join them to save himself (Ev. of Miles).
So the wife of another stipendiary magistrate repeated a conversation
which she had with a black man, one of her husband’s parishioners. She
asked him whether, supposing the rebellion extended to the district, he
and the other negroes would stand by the whites. His reply was, that they
would side with the strongest party, and they might wish to stand by
them, but would be afraid (Ev. of Brooks). So another, a magistrate and
landed proprietor in another parish, said that the negroes on his estates
became much excited on hearing of the outbreak, and one said, “ with
more of pride than regret,” “You see, Massa, how they kill buckras down
there !” (Ev. of Carr).

(b) Thus, the following letter, signed by the ringleaders, was found
during the rebellion :—‘‘ The white people send a proclamation to the
Governor to make war against us; leave your houses, take your guns ; who
don’t have guns, take cutlasses. Blow your shells, roll your drums, house
to house take out every man, march them down to Stoney Gut ; any that
you can find in the way take them down, with their arms; war is at us,
my black skins; war is at hand” (vide, p. 163). Andagain and again, in
the evidence before the Royal Commission, it appeared that the blacks
spoke of it as a war, and their cry was, “ colour for colour ; kill the whites ”
(p. 369). They had also adopted as their plan of warfare, the most dangerous
to which a rebel peasantry can resort, a8 we have found in New Zealand
and Caffraria, betaking themselves to the bush. See the deposition of Coley,
Parl. pap. et vide post, p. 276, in which it appeared they said they would
Become bushmen, and the reports of the officers shewed that they did lurk
in the bush (vide p. 160).
( xxvi )

in which its leaders described it as “a war,” and always Bpoke
of it as a war, doing all they could to raise one class of the

population to take up arms against another.

Beyond all doubt, in point of fact, the declaration of martial
law (a) is, in terms, a declaration of a state of war, which,
according to all the authorities of our law, suspends the
common law ; and it expressly authorizes the military to treat
as enemies all whom they consider hostile to the Government,
thus establishing an absolute discretionary military authority(?),
and giving the military independent powers of action, as in
war, instead of being merely in aid of, and subordinate to, the
civil power.

The distinction between the action of the military, in aid of
and under the civil power, and its independent power of action
under martial law, was well understood by the General (¢)

(a) It declared and announced that our military forces shall have power
of exercising the rights of belligerents against such of the inhabitants, as
our said military force may consider opposed to our government and the
well-being of ourloving subjects (vide post, p. 127).

(6) In the exercise of which, as is plainly implied in Lord Mansfield’s
speech, on the occasion of the Lord George Gordon riots (vide Adolp.
Hist. Eng. vol. iii. p. 254), and isalso clearly expressed in his reasons for
the judgment of the House of Lords in the greatcase of Sutton v. Johnstone
(1 Term reports), the military would only be liable to martial law, and
cannot be legally responsible for acts done under military authority, in the
exercise of their absolute discretionary military authority. As rebellion is
war, the reasons in that case equally apply to rebellion ; and in the former
instance, Lord Mansfield was at pains to point out, that the military were
liable for their acts by the ordinary law, because it was not under martial
law, which implied, that in honestly carrying out martial law, they would
not be legally liable.

(c) Thus, General Nelson, in almost his first letter to the Commander,
after martial law was declared, wrote : “ All operations have been satisfactory,
except that the force under Capt. Field, acting under civil guidance, has not
reached the point named. The detachment moved before martial law was
proclaimed ; hence Capt. Field is in no way responsible. It has dis-
arranged my plans, and I have sent stringent orders to Capt. Field, and
hope he will receive them, and thus be relieved From supervision of a magis-
trate.” And then he went on to mention, “the court-martial ordered for
this day, has sentenced twenty-five to death, and they have been hung.”
Without any reference to the Governor, and so all through, the acts of the
General proved that he considered that he possessed supreme authority
(| xxvii )

in command, who, in his despatches after the proclamation of
martial law, showed a thorough consciousness that the effect
was to give the military independent powers of action to invest
him with the supreme direction, whether as to measures to be
taken in the field, or as to courts-martial.

It is obvious, therefore, that if the absolute military autho-
rity were established by the declaration of martial law, then
all the acts done under that authority were lawful and legally
justifiable; but that, on the other hand, unless that authority
can be established, all the acts done were illegal (a), all the
floggings were illegal, and all the inflictions of death (8) were, in
a legal sense, murders; and, probably, looking to the nature
of the question, and the fearful issues it would thus involve,
its decision, one way or another, would particularly determine
whether martial law should ever be declared again. For no
officer of the Crown is likely to expose himself to the imputa-
tion of the wholesale murder, whether or not he were protected

in the district, and independent powers of action precisely as in war,
without any necessity for reference to the civil power. It was under his
authority and by his warrant that a court-martial assembled to try pri-
soners ; the proceedings were submitted to him for approval; it was he
who, in reference to the Commander-in-Chief, determined whether or not
persons were within the jurisdiction, or their offences within the cognizance
of courts-martial; it washe who, in the case of Gordon, considered and de-
cided that question ; it was he who decided whether the evidence was sufficient
to sustain a charge against the prisoner ; it was he who framed the charge ;
it was to him the proceedings were submitted, and it was he who approved ;
and it was only to the Commander-in-Chief he submitted them, and it was
only done to afford the Governor an opportunity of exercising his clemency,
if he saw fit, that the Commander-in-Chief sent them to the Governor
(Ev. of Eyre, Nelson, &c.). It appears from the Parliamentary papers,
that he distinctly refused to try prisoners, whose offences he considered not
to be within the cognizance of courts-martial under martial law. His
letter stated this, and he so stated, with perfect frankness, in his evidence
(vide post, p. 174—880).

(a) Except a few instances of death, inflicted by the military, upon men
in actual commission of felony (vide post, p. 144, p. 327), or in actual en-
counter (p. 333). These were the only cases in which the homicides were
lawful at common law, the odd units out of 438.

(6) That is, in the parties actually committing or personally directing
the acts. It would not follow that every ope who, in any way, by a void
(| xxvii )

by a bill of indemnity, which, as we have seen, may be resisted

and may be rejected. Presa at
In truth, however, the proper scope of a bill of indemnity 1s

not to cover measures of utter and wholesale illegality, but
rather some isolated acts of doubtful legality, or some error of
irregularities in a proceeding substantially legal. And the
scope of a bill of indemnity, in case of martial law, is to protect
those excesses, or errors, or irregularities (a), which are almost
certain practically to occur, and which may occur without
criminality, and possibly without culpability, though they may,
on.the other hand, have been more or less censurable. It was
never held that a bill of indemnity was necessary to cover what
was done strictly under military authority, in the district under
martial law. And it would be perilous to the defence of our
distant colonies and dependencies, in cases of rebellion, if it
were understood that Governors and Generals who declared, and
acted on, martial law, were to be deemed guilty of wholesale
murder, and entirely dependent on the indulgence of a bill of
indemnity.

Therefore, it is, that the scope of the bill of indemnity(}) is

declaration of authority, led to these acts, would be criminally responsible
for them. For the criminal law requires that the party prosecuted, shall
have done or directed the act in question. And, of course, if there were
reasons to believe the persons executed were guilty, and the parties prose-
cuting acted honestly, no jury would convict the latter of felony.

(a) Acting without orders, or out of the district, or before or after the
period covered by martial law, &¢., &c.

(b) Vide post, p. 229. The distinction between the scope of the common
law immunity, and that of a bill of indemnity, may be well illustrated
by a case which occurred in Jamaica. The Provost Marshal executed a man
named Marshall, as was atfirst pretended, wantonly, for no reason at all. It
was proved, ghowever, by several respectable witnesses, that the man had
threatened his life, with great deliberation and determination ; and that at
the time the Provost had a large number of prisoners, and a very weak
guard. Now, on the view of the case first put forward—that of a wanton
murder—even a bill of indemnity would not have covered the act 3 even
although a Provost Marshal had authority, by military law, to execute a
man without orders or without trial. But, on the other view of the case—
that the man had threatened to take his life—if the Provost Marshal had
by military law authority to execute a man for such an act against himself,
in the actual exercise of his authority, then the execution would be legal,
(| xxix )

not merely to indemnify all persons for acts done under and
by virtue of martial law (which, according to the view of the
law already laid down, would not be necessary), but also for
acts done, whether or not under martial law, if in furtherance of
martial law, or for the suppression of the rebellion, and for
acts done out of the district under martial law, and also
to provide for conclusive evidence as to what acts should be
deemed to have been done under and by virtue of martial
law.

No one, however, contested, in the Jamaica case, that some
of the deaths inflicted by way of execution were legal, and the
complaints made were only as to excess, that is, either as to
continuance of martial law too long, or as to the execution of
too great a number. But it was not distinctly borne in mind
that they were all legal, or all Ulegal (a), for that it was a
question of lawful authority, not a question of necessity ; for
there never could be a necessity, in the strict sense of the term,
in which it is used in law, to execute any prisoner, even
although seen to commit a murder, nor to flog any one, nor
to burn a single hut or house. These were all military punish-
ments, wholly by virtue of military law, so that, unless military
law was established, they were illegal.

Still they might all have been legal, and yet many of them
in a great degree censurable or culpable (6). And one great

and would not require a bill of indemnity. But if he had not such
authority, though an officer would have had it, then it would require, and
would be covered by, a bill of indemnity.

(a) All through, the author is treating, be it observed, of acts done under
military order; not of acts done without or beyond order ; that is, wholly
without authority. It is idle to speak of acts done without any authority,
as excessive ; and this shows that the commission of enquiry into measures
of excessive severity, implied the legality of all acts done under military
authority. For if a man has been shot or hanged without legal authority,
it is an absurdity to speak of it as “ excessive severity.” It issimply, in a
legal sense—murder. To say that it is “ excessive,” implies that it was
legal, but censurable (vide post, p. 363).

(b) And the officers did not feel themselves at liberty to disregard all
considerations of humanity, but, on the contrary, deemed themselves bound
to the utmost to consult those considerations (vide post, p. 820—350).
( xxx )

point illustrated in the Jamaica case is, that the military men,
in carrying out martial law, although they assumed and exer-
cised an absolute military authority, did so, as much as possible,
against those in hostility (though, as hostility may be most
mischievous without arms, not necessarily against those
only who were armed), and, at all events, against those who
had been active in, or aided the rebellion (a).

Another point illustrated by the Jamaica case was, that as
the main ground for declaring martial law is not only the
existence of a rebellion, but the disparity of military force (0),
there may be a necessity for continuing martial law beyond
the time when actual resistance has ceased, and until military
reinforcements have not only arrived, but been distributed
through the country.

Because, as a war is not limited to actual engagements, but
embraces all measures of hostility, on the one side of devasta-
tion, and on the other side of retribution, and hostility is only
repressed by terror of military measures; so rebellion does
not cease with acts of outrage or resistance; and it may be
necessary to keep up the terror of military force, which has
caused their cessation, until the removal of any danger of
their renewal, either by the entire suppression of the spirit of

(a) The officers may or may not have succeeded in showing that they did
so ; whether, or how far they succeeded in showing it, is not within the
scope of this work to consider, for that is a question of fact. It is enough
that they sought to show it; and were quite sensible, that, whatever their
legal justification might be, this was necessary to make out their moral
justification ; and that they were responsible to the Crown and to public
opinion, if they failed to make it out.

(b) Vide post, p.215—227, The actual resistance of outrages did not
cease until the execution of the ringleaders, about the 24th of October,
The military reinforcements did not arrive until the 30th. Then
there ensued a delay of a week, pending a discussion between the
Governor and the Commander-in-Chief, as to the mode of dividing
and distributing the reinforcements, (vide post). Then there was the
delay of another week until they were divided and distributed ; and then
the time for which martial law had been declared—viz,, a month—expired
and martial law was withdrawn. And even then the military authorities
were by no means satisfied as to the condition of the population, and were
rather for extending than withdrawing martial law (vide post, a 217).
(| xxxi )

rebellion (a), or by the amount and distribution of strong
military reinforcements.

It appeared to the Author that, in the comments made upon
the Jamaica. case, there were involved some serious errors,
which all resolved themselves into this, that martial law was
limited to resistance or repression of actual outrage or insur-
rection. So far, however, from this being so, it will be seen
that, for this martial law is not legally necessary at all, since
the common law affords ample legal powers for that object (2),
allowing the military to act to any extent, in aid of the civil
power, in order to effect it.

But where the common law is practically defective is, that it
requires and implies that there shall be an actual force at its
disposal, adequate to put in execution the legal powers which
the common law affords—that is, to resist, and arrest, and deal
with the offenders; and it is, in the absence of such a force,
wholly deficient in measures preventive or deterrent, and in
the deterrent powers of speedy and exemplary punishment,
which alone can enable an inadequate force to cope with, and
keep under, a much larger one. And thus, it is of the essence
of martial law that it should, by what the Petition of Right

(a) That this object had not been attained, even long after the with-
drawal of martial law, was shown, not only by the military reports and
other official accounts, but by actual facts which occurred even during the
sittings of the Royal Commission. For the new Governor had not only to
issue stringent proclamations, but to call out the military force, to repress
the spirit of insurrection which threatened to break out again among the
peasantry (vide ante, p. 296). That the cessation of acts of outrage and
insurrection was only owing to the terror inspired by martial law, was,
therefore, an ‘ample reason for not withdrawing martial law until the mili-
tary force was so strengthened as to do without it.

(b) As laid down by Lord Mansfield, in the case of the Lord George
Gordon riots, and by Lord Ellenborough, upon a similar occasion (vide post).
And by Lord Chief Justice Tindal, in the case of the Bristol riots (vide
post), As martial law, therefore, is not required for this, it must, if it
means anything, mean much more than that; and what it does mean more
than that, it is impossible to say, unless it means all military measures of
punishment against rebels, whether or not in actual resistance or actual
insurrection, provided they are or have been active in, or have aided the
rebellion, and are in hostility to the Queen’s loyal subjects.
(| xxxli )

calls “the summary justice of martial law”—that is, by sum-
mary executions, according to the stern severity of military
law—inspire a terror into the larger numbers of the rebels, in
which alone the safety of a small loyal community can, under
such circumstances, be found.

In other words, although the common law, aided by the
military, will suffice, and may confine itself to actual resis-
tance, when the military force is adequate and overpowering,
because its mere presence exercises a deterrent influence over
those disposed to rise; yet, when there is no such adequate
military force, the deterrent effect of the terror inspired by the
terrible severities of military law, especially in the summary
trial and execution of prisoners, is essentially necessary.

In short, the true scope of martial law is not so much the
resistance of actual insurrection, as its suppression and pre-
vention by terror; and the mischief it meets is that of a pre-
ponderating class of the population ready to rise, and keeping
a smaller class in a state of imminent danger, and intolerable
terror, only to be removed by striking the rebellious masses
with a terror inspired by the stern and summary severities of
military law. So that, in this view, terror is of the very nature
of martial law, and deterrent measures—that is, measures
deterrent by means of terror—are of its very essence. And
this terror, it is obvious, when the military force is small, can
only be kept up by great severities.

The measures taken for the suppression of the rebellion
were all purely military, the summary infliction of flogging or
of death, and the burning of houses; all these were measures
purely military, utterly unknown to the common law, and only
to be justified by martial law, as expounded in these pages. If
martial law was lawfully established, then they were all legal
(so far as they took place under military orders and autho-
rity) ; however, they might in some respects, or in some
instances, be deemed to some extent censurable.

The complaints against the officers appeared, upon close
examination (discarding some circumstances, which would go
rather to propriety than to legality), to resolve themselves
(. xxxiii )

really into this, that they had used these measures of military
severity, especially against prisoners, or rebels not in actual
resistance. In this respect they had substantially all acted
alike; they had all executed prisoners, they had all inflicted
floggings, they had all burnt houses. In some instances, such
acts were thought to be narrated in a tone or spirit less con-
siderate than in others, and which ‘was thought to show that
they had probably been committed in a spirit as inconsiderate.
But, upon examination, it appeared that, even in these in-
stances, their acts had been far more considerate than their
words, and that, in substance, they had all taken similar mea-
sures in similar cases, measures which, of course, were all
utterly illegal (a) at common law, and could only be justified
under martial law, in the sense in which it is explained in this
work, as a state of war against rebels, of which the very object
and essence consists in striking terror, by means of such mea-
sures of military severity.

Viewed in this light, it is manifest that such measures might
be not only necessary, but really, in the long run, merciful
and humane, which otherwise might appear needless, reckless,
and inhuman ; for if, by the terror inspired by the execution,
it may be of some hundreds, who have taken part in a rebel-
lion, tens of thousands are kept from rising, who are ready
rise, and who, if they did rise, would massacre thousands, and
ultimately pay the penalty of thousands of their own lives,
obvious that, terrible as the severities may seem, they are
really merciful.

And it is manifest that these considerations, as to the neces-
sity for keeping up measures of severity, in order to inspire a
rebellious population with terror, and prevent them from
rising, or renewing a rebellion, would bear either upon the
continuance of martial law, or upon the measures taken under
martial law. They lie, indeed, at the basis of the whole subject.

Hence it is that the defence of the Governor (2), as to his

(a) With one or two comparatively insignificant exceptions of deaths,

inflicted in actual encounter (vide ante, p. 25).

(b) Hence, when Mr. Gurney asked Governor Eyre to tell his reasons
c
(.-aaeiy 1)

reasons for continuing martial law, rested so much upon the
belief in the existence of a state or spirit of rebellion, and a
threatened insurrection, and of danger arising therefrom, and
the necessity for deterrent measures under martial law, to pre-
vent a renewal of the insurrection. And hence it was (a) also
that his defence turned so much upon disparity of military
force.

The substance of the evidence of the Governor, and the
members of Council, on this head was, that, in their view, dan-
ger did not cease with actual insurrection ; ‘and that, between
the period of the amnesty and the suspension of martial law,
there were apprehensions of disturbances, and applications for
troops in various districts; and, in short, they justified the
continuance of martial law, on grounds very much the same as
those on which it had been originally declared, viz., the
rebellious character of the disturbances, the existence of
widespread disaffection, and disposition to disturbances, the
great weakness of the civil power, and the great disparity and
deficiency of military force.

These, at all events, were the grounds taken by the autho-

why the rebellion having,—as declared in the words of the amnesty—been
suppressed, martial law was continued for the space of a fortnight longer,
Mr. Eyre replied that there were apprehensions of disturbances in other
districts ; and it was also considered right to retain a provision for dealing
out summary punishment to rebels still in custody, and to others not included
in the amnesty. The Government, he added, had various communications,
onthe subject of threatened insurrection, from almost every part of the
island, which disclosed a variety of facts and incidents, tending to show that
there was a seditious spirit among the negroes, and that considerable
danger still remained (vide post, p. 292). And it is to be observed, that the
withdrawal of troops from the declared district to others, would, of course,
increase the danger of a renewal of the rebellion.

(a) Thus he stated, that after the proclamation of the amnesty, he had
been called upon to send troops to various parts of the island, where dis-
turbances were apprehended (vide post, p. 292, et vide Parl. Pap.). And
hence the importance he attached, not only to the arrival of reinforcements,
but their distribution throughout the island, witha view to overcome the
rebellious part of the population, and hence the difference of opinion which
arose between himeelf and the Commander-in-Chief upon that point, and
the correspondence which took place about it, which delayed the distribution
of the troops (vide post, p. 220—229).
(| xXxxv_ ).

rities of the colony, in vindication of their measures. How far
they supported their view, it was for the Royal Commission to
enquire. But they never pretended that martial law could
properly be kept up beyond the necessity. The question was,
what was necessity ?

The key to the whole question is, it is manifest, the neces-
sity for the terror inspired by military measures, to subdue
a spirit of insurrection which prevails among a preponderating
class of the population, in the absence of a military force of
such power as, by its mere presence, to deter them from rising.
This necessity, it is obvious, lasts as long as the spirit of
insurrection, and the disparity of military force.

No one in the Jamaica case, nor in any other, at least under
English law (a), has attempted to vindicate the maintenance of
martial law beyond this necessity. The colonial authorities
sought to show that, for the reasons above-mentioned, the
necessity for keeping up the terror inspired by martial law
continued, and required its continuance.

The scope of this work being the legality, rather than the
propriety, of measures taken under martial law, it has not been
necessary to enter into the considerations of propriety, other-
wise than to point out, upon what is conceived to be the
highest authority (0), that they must necessarily turn a good
deal upon military considerations (¢), and in the circum-

(a) In America, as observed in the Times, January 8, we have seen martial
law kept up in districts where the ordinary course of affairs had never
been disturbed, and for months after all war or rebellion had ceased, and
we have seen persons tried and executed by military tribunals which
had no legal authority to try them. But no such arbitrary procecd-
ings have ever taken place under English rule.

(b) The reasons given for the judgment of the House of Lords in
Sutton v. Johnstone, 1 Term rep. (vide post, p. 79).

(c) Whether, for instance, there ever ought to be particular orders issued
to the officers, and if so, of what nature. Or, if their orders are neces-
sarily general, and leave much to their discretion of what nature their
particular measures, or their measures under particular circumstances,
ought to be. So whether, when the orders are general, particular acts or
measures are within them. All these, it is conceived, are purely, or pri-
marily, military questions.

c2
{ seu)

stances, as they would appear to military men ; and, therefore,
would be properly determinable by military men, and according
to the usages of the service.

It must not be supposed that, because martial law is
military power, therefore, during martial law there is no con-
trol. The Duke of Wellington, when he (a) said that martial
law was no law at all, did not mean that it was above all
law, but merely that it was not in itself measured by the rules
of ordinary law, municipal or military. And when he said it
was the will of the Commanding officer, he meant that his
will was absolute, not utterly arbitrary. The common law
only authorizes, and therefore only protects, as under martial
law, measures taken and acts done under military order and
authority (6) ; and the orders given, and the measures taken
under military authority, although not reducible to fixed,
inflexible rules, are sulject to military authority, and regu-
lated by the rules of the service (c).

Common law controls martial law in the sense in which
it controls all authorities, regular or irregular, and military
authority among the rest, by keeping it within its bounds,
although, within its bounds, it is a matter of military autho-
rity, or cf moral propriety. And, as the common law con-
trols ordinary military law within its bounds, by restraining
regular courts-martial from acting in cases out of their juris.
diction (7), while recognizing them as absolute within their

(a) (Vide ante, p.7).
(5) This is, indeed, what martial law means,

(c) InSimmons on Court-martial it is laid down that when there are neither
express orders nor rules, the usages of the service bind. And these usages
are quite understood among military men. They require soldiers not to
act without orders, not to wander, not to injure non-combatants, &e.
Then, as Sir H. Storks asked one of the officers, whether his detachment
was kept under orders, according to the usages of the service (liv. of
Lieutenant Adcock), so the officers were anxious to show that they
observed the usages of the service, and told their men not to fire without
orders, &c, See the Queen’s Regulations, « Suppression of disturbances,”

(d) Grant v. Gould, 2 Hen. Blackst., rep. 68; Mann v. Owen, 9 B. & 0
Rex v. Suddis, 1 East. rep. : ;
(| xxxvii )

jurisdiction, so the common law controls martial law, which is
extraordinary military law, by confining it within its lawful
operation, as to time and place, and also by restricting it to
acts done under military order and authority, for the very
reason that it may, in its actual exercise and execution, be
under the restraint of military discipline (a).

And, even in the carrying out of martial law (6), the common
law and military law alike impose reasonable and salutary
restraints. For instance, as regards measures of attack, there
is the restraint imposed by the usages of the service ; and in
measures of punishment, even on the most summary enquiry,
there is the duty imposed by those dictates of natural justice (c),
which the law of England considers as of universal obligation ;
and even on the most inferior or irregular tribunals, the duty
of making some enquiry, of hearing evidence, and of listening
to the defence, and of using reasonable means and care to get
at the truth—the duty, in a word, of a fair trial; and the
entire and wilful non-observance of this great duty might so
far invalidate such proceedings, as to impose a criminal
liability ; though, on the other hand, as there are numerous
degrees of care, the mere failure, in some degree, to use due

(a) In re Poe, 5 B. and Adol. rep. In re Mansergh, I Best and Smith’s
rep. Nothing is more clearly established than that the sentences of a
court-martial, even in time of peace, as regards military persons, cannot
be reviewed in a court of law, though prohibition can issue if it goes out
of its jurisdiction.

(b) Vide supra.

(c) Thus, our greatest judges, in every age, have laid it down, as
universally true, that it is iniquitous to condemn a man unheard ;
and, of course, if this is true of merely civil cases, it is true, @ multo
fortiori of matters criminal, especially if capital. All men are pre-
sumed to know it, because it is a dictate of natural justice, and it is quite
unlike mere positive rules of procedure, more or less salutary, but not
necessarily of the essence of justice. And an officer who had wholly
disregarded the essential and primary obligation of justice, and condemned
men unheard, could not set up that he was carrying out martial law, for
that would imply that martial law was iniquitous ; whereas, the worst
that can be said of itis, that it is rough and summary justice.
(| xxxviil )

care, however highly culpable, would not be criminal, and
render the proceeding illegal.

No one need fear that, under the conditions here laid down,
the power of declaring or carrying out martial law is likely to
be abused, at all events, with impunity, or is not under suffi-
cient control. For, in the first place, it can only be legal and
probable in time of rebellion. Next, those who carry it out
are, asregards the men, liable to summary punishment (a) ; and
as regards the officers, Hable to the loss of their commis-
sions, if they act without due regard to their orders, or the
usages of the service, neither of which would ever warrant any
inhumanity; while, as to the Governor, he would be liable
to censure and dismissal, or removal from the Queen’s service
for ever, or even, in a gross case, to impeachment.

For any violation of propriety, or any departure from the
dictates of natural justice, there is ample remedy, even assum-
ing it not to involve such illegality as to render the party
liable to criminal proceedings. For any violation of orders, or
of the usages of the service, an officer is liable to court-
martial; and for any impropriety not amounting to a military
offence, he may be cashiered or removed by the Commander-
in-Chief, or the Secretary of State, in the exercise of the discre-
tionary power of the Crown, with or without a court or com-
mission of enquiry. Thus, therefore, the officers act under a
threefold control: the control of common law, of military law,
and of the discretionary power of the Crown.

It is conceived, however, that the declaration of martial law
by the supreme authority, having legal power to declare it, is,
at all events, m the only case practically likely to arise, of their
being some rebellion, necessarily valid and lawful, however it
may be censurable.

It would be easy to suggest arguments in support of a con-

(a) For, in the actual execution of martial Jaw, all those employed are
themselves liable to the terrible and summary severities. of martial law,
and a soldier who commits an act of outrage or excess, may be summarily
punished by flogging or even by death. In the Jamaica case, the
General more than once threatened this application of martial law.
(| xxxix )

trary view; but such a view would not be supported by any
Judicial authority (a) ; while, on the other hand, it would be
opposed to a great weight of judicial authority (b), and to legal
and constitutional principles, for if it would apply against a
Governor, it should seem that it would equally apply t> the
Secretary of State, as to whom, however, it clearly does not

apply.

And if the act were valid(c), then, however censurable or
culpable it might be, it would be hard, indeed, to hold the
military Commander legally liable, who merely carried it out;
and still more hard, and not, it is conceived, possible, consis-
tently with legal principle, to hold the officers liable who
carried out his orders, or the soldiers who carried out theirs.
So that, granting the first step, it necessarily follows that all
acts under military orders would be lawful, though they might
be censurable.

(a) The case in which it was held that a Secretary of State was liable,
legally, for a general warrant issued in time of peace under ordinary law,
is clearly different, for that was an act wholly illegal, which a Secretary of
State had no power to do, and it was directly ordered by himself.
(Entick vy. Lord Carrington, 8 Wils. reps.)

(®) Thus it has been held that the Governor of a colony is not liable
in a court of law for an act, even out of his ordinary authority, when it
has been approved of by the Secretary of State, because zt then became an
act of State (Buron v. Denman, 2 Exch. rep.). And so it would be of any
act within his authority. And it has been held that a Secretary of State
is not liable legally for the consequences of advice given to his Sovereign.
(Irwin v. Sir Geo. Grey, 19 Com. Bench reports, N.S. & 3 Finlagon’s Nisi
Prius reports, and Dickson v. Peel, 3 ibid.)

(c) If it was valid, it would create a state of war, and vest in the mili-
tary Commander an absolute military authority, for which the House of
Lords have held he would not be liable ; and as to the officers and men
under him, they would be bound to obey their orders ; and it haslately
been laid down by a very eminent and learned judge, Mr. Justice Willes,
that a soldier is justified by his orders, in time of war, unless they are such
as could not possibly be justifiable (Bell v. Keightly, 4 Finlason’s Nisi Prius
reports), which is exactly the way in which Sir D. Dundas put it in
reference to martial law, in the Ceylon case, where he said the orders
would justify the military in any acts, but such as could not possibly be
justified, as the torture of a child.
( xl )

The opposite view would entail the most mischievous conse
quences (a), and not only would it produce the most grievous
injustice, but the practical result would be, that on the next
occasion of a great emergency, no one would venture to declare
or carry out martial law. For men will not act if they are to
be subject to the imputation of wholesale murder, even if they
were sure of a bill of indemnity, which, however, as we have
long seen, may be resisted (6).

If, indeed, a Governor could never lawfully declare martial
law, then the doing so would be an unlawful act, though then
it would also be null and void; he might then be liable for
acts personally directed by himself. While, on the other hand,
beyond all doubt, all persons who acted in carrying out martial
law would be legally liable, as their acts would be without
authority, and all executions would, in a legal sense, be
murders.

The extreme difficulty and embarrassment, however, which
would result from making the validity of the declaration of
martial law depend upon its propriety, would have been illus-
trated practically by the enquiry into the Jamaica case,
whether the Royal Commission had approved or disapproved
of the course taken by the Governor. For, without presuming
to throw any doubt upon the opinions they pronounced, it is
certain that those of the highest position and the best
means of judging (c) in the colony, were of one opinion, and

(a) The consequence of so holding would, it is clear, be tremendous; for
all acts done under martial law would be illega], and all capital executions
would, in a legal sense, be murders. The effect would be to throw upon
those who acted the responsibility of deciding whether an act of the
Executive within its functions, was justifiable or not ; so that, in the result,
of course, no one would ever venture to act under such a responsibility.

(>) This, also, has been illustrated in the Jamaica case. (Vide post,
p. 229.) The scope of a bill of indemnity is rather casual errors—not
wholesale illegality.

(c) Vide post, p. 127. The council were unanimous; and not only the
council, but the colony: that is, all the white population, who were the objects
of the rebellion. The degree of value to be attached to the opinion of
persons, however eminent, coming from a distance, and Jong after the event,
may be doubted. And of this the Commissioners were aware.
( xii )

that of those who shall peruse the evidence upon the ques-
tion, beyond all doubt, a large proportion will adhere to that
opinion. And in what position would the military be, if the
legality of their acts depended upon a matter of opinion ?

It would follow from these principles, that the institution of
an enquiry by the Crown, into measures taken and acts done in
the suppression of the rebellion (a), would be legal and con-
stitutional, because its scope would be the same as that of an
act of indemnity, and the Crown would have a right to inform
its conscience thereon, and on the conduct of the officers in
the discharge of their duty; and if the enquiry could not be
conveniently carried on at a great distance without a Com-
mission, such a Commission would be legal and constitutional,
though otherwise as to an enquiry into acts not done in the
suppression, and therefore criminal.

It should seem, therefore, that the issuing by the Crown of
the Royal Commission of enquiry was, of itself, a recognition
and affirmation of the principle that, if the declaration of mar-
tial law was legal, the measures taken under military authority,
in carrying out martial law, and the acts done under that
authority (6), were lawful, and could not be the object of

(a) Nothing can be more clear than that it is competent to the Crown
to institute an enquiry into the conduct of its officers in public capacities,
civil or military. This has been abundantly established in several cases in
the courts of law (vide Home v. Bentinck, 2 Brod. & Bing. rep., and Harrison
y. Bush, 5 Ellis & Black. rep.). But such an enquiry could not be instituted
into acts of a criminal nature, such as would come under the cognizance of
the courts of law. The Crown could not supersede, interfere with, or pre-
judice the proceedings of the criminal courts in Jamaica, in matters of a
criminal nature.

(6) The Commission recited that it was alleged that there had been
excessive and-unlawwful severity, the allegations being that martial law had
been continued too long, and that too many persons had suffered, and it
authorized an enquiry into the origin and nature of the disturbances (ze.
how far they were rebellious or riotous), and the measures taken for the
suppression, and the conduct of those engaged in the suppression (i.¢.,
it must be presumed, their conduct while engaged in the suppression).
The Commission, it is to be observed, seemed throughout to imply
that the declaration of martial law was lawful; or otherwise, alJ the acts
( xiii )

criminal prosecution. For if they could, and were all, ae in
that view they must have been, illegal and criminal, the issuing
of a Commission of enquiry would, it should seem, have been
unconstitutional, and an enquiry into excessive severity would
have been futile.

Although, however, it is considered that all the acts done
under military authority, under martial law, are perfectly legal,
and legally justifiable, they might or might not have been
morally justifiable. And, although it tends to show that acts are
morally justifiable, to show that they are legally so, and prima
facie, it must be taken that they are so, still it may appear to
be otherwise; and it does not follow that because officers are
entrusted with arbitrary powers, that, therefore, they should
exercise them without regard to considerations of propriety
or humanity. And it is conceived (a) that these considera-
tions, as well as legality, came within the true scope of the
enquiry under the Royal Commission.

The subject of martial law is of such importance, when it
comes into practical operation, as it is certain constantly to
do in one portion or another of our wide-spread dominions
or dependencies, that the Author thought it might be of some
use to ascertain, and to embody from the most authentic
sources, either legal or military, all that can be laid down upon
the subject as matter of law, or military authority.

And although his work was written, and for the most part
printed, before the Report of the Royal Commissioners was
published, it is satisfactory to the Author to find that there is
nothing in that Report at variance with his views as to the law
on this subject ; while, on the contrary, its whole tenor and effect
is to confirm and support them. For it distinctly declares that
the proclamation of martial law was lawful, and implies that
the measures taken under it were legal; although, in some
respects, as they considered, censurable. And the Secretary
being illegal, the phrase excessive severity would be an absurdity. So,
it will be seen, the Commissioners reported. (Vide post, p 420.)

(a) As shown by the terms of the despatch of the Secretary of State,
announcing the view of the Commission, which points entirely to these

nannidnnntinns 1. a
( xiii)

of State, after consulting the law officers of the Crown, dis-
tinctly adopted this view; and particularly, and in terms,
adopted the propositions laid down in this work, as to the
immunity by law to acts done under military order and autho-
rity in carrying out martial law; and as to the scope and
operation of an act of indemnity.

The Commissioners (a), in the very passage in which they
reported, not that martial law had been continued too long,
but (with observable and commendable caution), only that it
had been continued too long in tts full force—plainly implied
that its full force had the legal effect which had been assigned
to it in this work. And the Secretary of State (2), in adopt-
ing their conclusion on that point, was careful to do so in
terms as cautious as those which they had employed.

The Commissioners and the Secretary of State were, it will
be seen, equally careful to give no countenance to the erroneous

and mischievous notion (c) that the scope of martial law is the
mere resistance of actual insurrection, or repression of actual
outrage ; which does not require martial law at all; and in the
very passage in which the Secretary of State declared that the

(a) “ That by the continuance of martial law in its full force to the extreme
limit of its statutory operation, the people were deprived, for a longer period
than necessary, of the great constitutional privileges by which the security
of life and property is provided for:” which plainly implied that martial
law in its full force had this effect. It should be observed that the Jamaica
Act fixed a month as the limit of time beyond which martial law should
not be continued ; the whole scope of that act—as of all acts on the sub-
ject—being to limit and restrain the common law power. What the Com-
missioners meant by martial law in its full force, was explained by the
passage on “the duration of martial law,” (p. 39—40) in which they
specifically stated what they meant by that after the amnesty “the courts-
martial should have discontinued their sittings : which plainly implied that
while martial law was in “ full force,” the trials by courts-martial were legal.

(b) Vide post, p. 438.

(c) This notion, taken up, naturally enough by the press, upon the sup-
posed authority of the opinion of the eminent lawyers already alluded to,
had been the fruitful source of numerous fallacies, which, evenafterthe Report,
were persistently adhered to. Thus, it was repeated that the negroes had com-
mitted few outrages ; the fact being that they had, as the Commissioners
showed, committed all they could, having only failed to commit more, simply
because they had driven the whites in terror from their homes; and the
reason they had not, by a general rising, overpowered the whites, was, that
( xliv )

object of martial law was not punishment (a), he implied that
punishment, as a deterrent measure, was one of its means ; and
that such means and measures might be used as long as required
to remove danger and restore safety.

The Author desires to add, that it would be an error to
suppose that, because there is a. special enactment on the
statute book of Jamaica with reference to martial law, that,
therefore, there was anything at all ewceptional in the case.
For, as it will be seen (2), on referring to the text of
the statute, as set out in the Report, it was declaratory
of the common law power to proclaim martial law; and im-
posed upon it as a restraint—very proper in a colony—-the
condition that it should not be exercised without the con-
currence of the Council.

they were deterred by the terror of those very measures, for keeping up
which the Governor was censured. Up to a certain time the Commissioners
and the Secretary of State admitted the necessity, and the efficacy of these
deterrent measures. And though they thought that these measures might
with safety have been discontinued earlier than they were, they admitted
the necessity of retaining the power to continue them ; and frankly and
candidly vowed that itis easy to be wise after the event; so that it was
rather that they differed from the Governor in his judgment, than accused
him of an utter want of judgment. And it is obvious that as terror is a
temporary motive—if men have been deterred by fear from the committal
of outrages—it is impossible to show that, had the terror been removed, the
outrages would not have been renewed. The great object of martial law is
to prevent insurrection.

(a) “Future good government is not the object of martial law. Ex-
ample and punishments are not its objects: its severities can only be justi-
fied when and so far as they are absolutely necessary for the immediate
re-establishment of the public safety ” (vide post, p. 440).

(2) Report, p.18. The statute recited that “public danger might some.
times render the imposition of martial law necessary,” (implying that there
was the power to proclaim it), “but that from experience of the mis-
chief attending it, it must ever be considered as amongst the greatest of
evils ;” and it provided, therefore, that martial law should not, in future, be
declared but by the opinion and advice of a Council of War. This act, there-
fore, which was passed in the present reign, and recited previous Acts
passed, after the Petition of Right, plainly implied that at common law
martial law might be declared in time of rebellion.

2, Hancourr Buripines, Tempin.
CONTENTS.

Part I1.—Or tae Necessiry ror Martiat Law, anD THe PowEr
or DEcLARING IT, p. 1—57. Its necessity, 1—41 ; the power
of declaring it, 41—57.

Part II.—Or toe Narore or Martiat Law, AnD THE Powers IT
CONFERS, p. 58—112. Military rule applied to the whole popu-
lation, 61 ; Military measures, 64 ; Immunity for, 75; Autho-
rizes executions on summary enquiry or trials by court-martial,
90; Principles applicable to such trials, 100; As to time or
locality, 102 ; Martial law suspends all ordinary law, 107.

Part II].—Or tue Execution or Martian Law, AS PRACTICALLY
ILLUSTRATED (IN THE CASE OF JAMAICA), p. 112—230. Official
accounts showing outbreak of rebellion which required martial
law, 112—126 ; Declaration of martial law, 127; Execution of
martial law, 128 ; Supreme authority military, 129 ; Nature of
measures taken, 144; Reports received, 145—167 ; Disposal of
prisoners and trials by courts-martial, 172; Case of Gordon,
175; Execution of ringleaders, 201; Province of Provost
Marshal, 205: Amnesty, 213; Distribution of military rein-
forcements, 214—219; Official communications as to state of
colony, 205—224; Bill of Indemnity, 228.

Part IV.—Or raz Enquiry BY THE CROWN INTO THE EXECUTION
or Martian Law, p. 231—430. Enquiries by Secretary of
State, 232—260 ; Commission of Enquiry, 261; Scope of En-
quiry, i. as to origin and nature of disturbances, 271, ii. as to
the measures taken for their suppression and the conduct of
those engaged in them, 297; Legality of the measures implied,
304; General questions as to measures taken, 317321; Mea-
sures of attack by the military, 322 ; Under orders of officers
or otherwise, 337; Disposal of prisoners, 341; Summary
executions or inflictions, 342 ; Courts-martial, 377 ; Gordon’s
case, 392; Number of persons executed, 413 ; Report of Royal
Commission, 420—430.
AUTHORITIES CITED OR REFERRED TO.

 

I.—ACTS OF PARLIAMENT.

Page
3 Charles I, ¢ 3 (Petition of Right, declaring martial law
within the realm illegal in time of saucead) : ll
33 Charles IL., (Jamaica Martial Law Act) ; Declar honey at the
common law power of exercising martial law in time of
rebellion, but requiring as a condition the assent of Council 46
1 William IIL, sess. 2, c.1 (The Bill of Right (a), declaring
that the Keaping or raising a standing army within the
kingdom in time of peace, without the consent of Parlia-
ment, is contrary to law) . . 11
1 Geo. IL, « 5 (The Riot Act, indie sesdttenda & in an
unlawful assembly felonious, and enabling the military to

disperse it by force) . ‘ - 23, 27
37 Geo. IIL, « 70 (As to seducing aliens from their

allawtanee) ‘ a ; . 187
37 Geo. IIL, ¢. 123 (Unlawful Oaths Act) ‘ 39
42 Geo. IIL, c. 85 (As to trial of Governors or ether Officers

of the Crown for crimes committed abroad). : 52

43 Geo. IIL, v. 117 (Irish Rebellion Act, expressly wéereing
the power of the Crown to declare martial law in time of

rebellion) ‘ ‘ . 42, 43
57 Geo. IIL, v. 7 (Sednsing soldiers Troe chats allegiance} . 187
57 Geo. IIL, c. 6 (As to constructive treason) . , . 191
60 Geo. IIL, c. 3 (Unlawful Drilling Act) . a 39

3&4 William IV., « 4, 40 (Reserving the “ undoubted oe
rogative of the Crown” to “exercise martial law against
enemies or traitors,” and any power vested in the Lord
Lieutenant or the Governor of Ireland, or any other

person, to suppress rebellion 5 43
11 & 12 Vie. c. 12 (Crown and clavernnient Security eat, as
to levying war against the Crown) . . : . . 44

(a) This alone renders the Annual Mutiny Act necessary, which, how-
ever, only applies to military persons, and is only necessary in time of

mence
( xlvii )

28 & 29 Vic. c.11 (The Mutiny Act of 1864, reciting, as all es
previous Acts had recited ever since the Bill of Right,
that “no man can be forejudged of life or limb in time of
peace, within the realm, by martial law ”’) os. 611, 98

II—DECIDED CASES.

Aitkenhead v. Blades, 6 Taunton’s rep. 148 (Abuse of authority
oflaw) . 363

Ash v. Dawnay, 8 Exch. — 240 (Boece or caibase of auth:
rity) . ‘ - 363

Ashford v. PhGietban, 1 Batnwall anil Aldarsows - rep. re
sumptive proof) . : 147

Bailey v. Warden, 4 Taunton’s rep. 67 (Common 1s sus- -
pended ina state of war) . ‘ 77

 

v. Warden, 4 Maule and Selwyn’ 8 ne (Gisutiemnye tial) 93, 96
Barwise v. Keppell, 2 Wilson’s rep. 318 (Common law sus-
pended by war). ; : . 3,77
Blagg v. Sturt, 10 Queen’s Bandh a 905 (Becistiiry of State) 256
Bradford v, Arthur, 4 Barnwall and Cresswell’s rep. (Power of

Governor as to Courts-Martial) . es 5
Branford v. Freeman, 5 Exch. rep. 334 (Brocsdutes Substantial
injustice). é 38
Buron v. Denman, 2 Exch, eh ‘(kete of State or Govern:
ment) 5 . 48, 53, 57
Burdett v. Abbott, 4 ‘Barnwall ‘and ‘Alileraon’s rep. 61 (HEvi-
dence) . : 66
Bush v. Harrison, 5 Ellis anil Binakstone’ 3 Fei Garey of
State, Power of, to Institute Enquiry) . 3 256

Butler v. Brayne, 5 Com. Bench rep. 155 (Procedure, sjuatied) 386
Capel v. Child, 2 Crompton and Jervis’ rep. 550 (Procedure,

natural justice) . 4 387
Carratt v. Morley, 1 Queen’s Bench rep. 18 (Libiity of

Officers) . c 54
Carstairs v. Stern, 4 Revate aut Belivyn’s rep. 99 J ey Evi-

dence) . ‘ . 100
Cave v. Mountain, 1 Tian iting anal Gamage! 8 ea (Bxcead). . 363

Davis v. Capper, 10 Barnwall and Cresswell’s rep. 28 (Excess) 363
Dickson »v. Peel, 3 Finlason’s rep. 685 (Liability of Secretary

of State). 3 53
Douglas v. Forrest, 4 ‘Bingham’ 3 re: Graraign or indetor one) 387
Duckworth v. Tucker, 2 Taunton’s rep. (Courts of war and

prize) . . ‘ ‘ . . . . . - 79
( xivili_ )

Page
Edgell v. Francis, 1 ee and Granger’s rep. 77 ee
for trespass) . :
Elphinstone w. Badreshuud, 1 Rie pys piep ‘Connell re
(Non-liability for Acts of State) é : ‘i 57, 48
Entick v. Carrington, 3 Wilson’s rep. 275 (General warrants) 31,33
Etherton v. Popplewell, 1 East's rep. 139 son of authority

77

of law) 363
Fairman v. Ives, 5 Bani. a Adolphus’ ion 642 (Seavetary at

State, enquiry by) . 3 256
Fell v. Hutchins, Cowper's rep. 424 (as 8 melee of avidenws

not binding Courts-martial) . : ‘ . . : 67
Fisher v. Lane, 3 Wilson’s rep. 247 (Procedure, inferior courts,

natural justice) . ‘ 386

Floyd v. Baker, 12 Lord Coke’ 3 ay 240 (licinchitey of Judges), 197
Garnett v. Ferrand, 6 Barnwell and Cresswell’s rep. 626 (Non-
liability of Judges)... ; . 193
Grant v. Gould, 2 Hen. Blackstone’s ie 68 (Martial Law). 41, 59
Gronvelt v. Burwell, 1 Lord Raymond's rep. 454 (Procedure,

Inferior Courts) . : 197
Harrison v. Bush, 5 Ellis and Blnekestatie’s ‘3 rep. "256 Giete
of State, enquiry by) . : 256

Home v. Camden, 2 Hen. Bladkatane's 8 rep. "553 (Prize peur 78
v. Bentinck, 2 Broderick and Bingham’s rep. 160 (En-

 

quiries by Secretary of State) . : . 257
Irwin ». Grey, 19 Common Bench rep. N. 8. (Non iat of
Secretary of State for advice to Crown). . 48

Johnson v. Rex., 7 East’s rep, 65 (Conspiracy, Locality of Trial) 103
Johnstone v, Sutton; 1 Term rep. (Absolute discretionary mili-

tary authority in time of war). : . 95, 316
Jones v. Gwyn, 1 Wilson’s rep. 91 (Liability for Malicious

Prosecutions) . 91
King (The) v. Cambridge University, 2 Lond Haymond’s wep.

1334 (Procedure, Natural Justice) . ; 386
King (The) v. Gregg, 6 Mod. rep. 41 (Procedure, Natl. Justice) 386
Kirby v. Denby, 1 Meeson & Welsby’s rep. 336 (Illegality or

Abuse of Legal Authority) . : 363
Linford v. Fitzoy, 13 Queen’s Bench rep. 230 (Liability of Ma-
gistrate) ; . 97

Lowther v. Radnor, 8 East's rep. 173 (Liability of Magistrate) 97
Luby v. Lord Wodehouse, The Irish Law reps. (Liability of
Governor) apr, 1 53

Mann v. Owen,9 Barnwall & Cresswell’arep. 595 (Courts Martial) 92
Mansergh, Ex parte, 1 Best & Smith’a ven (Canwta-Mawsiat\ na
( xlix )

Page
Mills v, Collett, 6 Bingham’s rep. 93 (Liability of Magistrate) 97
Morgan v. Hughes, 2 Term rep. 228 (Liability of Magistrate) 97
Mostyn v. Fabrigas, Cowper’s rep. 160 (Liability of Governors)

50, 51, 52

Miller v. Seares, 2 Blackstone’s rep. 1144 (Non-Liability for
Error). z : 48
Mure v. Kay, 4 Twanton! s rep. » (Power of her reat) ‘ 63

——— (Locality of Criminal Trial) 103, 178
Oakes v. Wood, 2 Meeson & Welsby’s rep. 355 (Excess or Abuse)
306, 363
Peppercorn v. Hoffman, 9 Meeson & be ca rep. 618 (Excess
or Abuse) : 363
Playfair v. Musgrove, 14 Meaton & Welsby 3 rep. 239 (Abus
of Legal Authority) . 363
Poe, Ex parte, 5 Barn. & actphud rep. (Courte- ‘Martial) x. 92:
‘Rafael v. Verelest, 1 Blackstone’s rep. (Locality of Criminal Trial) 103
Regina v, Frost, 9 Carrington & Payne’s rep. 129 (Treason) . 190
v. L. George Gordon, 2 Douglas’s rep. 592 cons &

 

 

 

 

 

Treason) . ; 36, 37
v. Harris, 1 Cardneton & ‘Movalinan’s oe 661(Felo-
nious Riot) ‘ ‘ 43
— v. Harvey, 2 Barn. & Creseiwalls « rep. 257 (Sediticns 38
— v. Horne, Cowper, rep. 637 (Sedition) . : . 3d
——_ »v. Howell, 9 Carrington & Payne’s rep. (Murder) . 40
—— v. Hunt, Barn. & Alderson’s rep. (Sedition) 39
—_—— v. Johnson, 7 East’s rep. 65 (Conspiracy, Locality of
Trial) 5 103
—— v. Sharpe, 3 oie Guminal Cises, 288 (Sedition &
Riot) ‘ 41

—— v. Simpson, 1 Canesten & Morehinants, rep. ‘618 (Riot) 40

v. Shelland, 9 Carrington & Payne’s rep. 227 (Sedition) 189
ex, v. Burdett, 4 Barn. & Alderson’s rep. 314, (Sedition) 39, 105
(Locality of Trial) 103, 178
(Presumptive Proof) 147

 

es}

 

 

— v. Beranger, 3 Maule & Selwyn’s rep. 69 (Evidence) . 193
— »v. Brisac, 4 East’s rep. (Conspiracy, Trial, Venue.) . 103
—— v. Baillie, 21 State Trials, (Secretary of State) . . 256
—— »v. Corbett, 4 Finlason’s rep. (Locality of Trial) . ‘ 103

— v, Langford, 1 Carrington & Marshman’s rep. 602 (Riot) 28

v. Macdaniel, Leach’s Crown Cas. (Murder by False Tes-

timony) 95

v. Murphy, 8 Cuevingian & Payaet s rep. 957 (Sedition hes ) 90
d

 

 
 

Page
Rex. v. Neale, 9 Carrington & Payne’s rep. 481 (Riot &
Sedition) . 28
—— v. Pinney, 3 Barn. & Adotpins rep. 966 Ciabiity of Ma-
gistrates) . 3 29
—— v. Suddis, 1 East’s se renter -Martial) i . i 94
v. Sutton, Maule & Selwyn’s rep. (Perjury, Juries) . - 193
— »v. Smith, 5 Queen’s Bench rep. 814 (Procedure, Natural
Justice) . 387
——  v. Wall, 28 State Trials, 143 (Grirataal Liability of
Garernus ‘ 5 . 73,74
Rushforth v. Hadfield, 7 East’ 3 wath 274 Pow er of Jury as to
Evidence) . ‘ ‘ . 100
Rutzen v. Farr, 4 Adolphus & Ellis’ '3 rep. 561 (Evidence) . 66

Sutherland v. Murray, 1 Term. rep. 538 (Liability of Governor) 75
Sutton v. Johnstone, 1 Term. rep. (Military Authority) 78,95, 319
Saville v. Roberts, 1 Lord Raymond’s rep. 374 (Malicious Pro-

secutions) 91
Taylor v. Cole, 1 Hen. Blatkstona’s eid 355 (ask ‘of ie

thority of Law) . i 363
Scott, Ex parte, 9 Barn. & Greaswrallls = 446 (Locality of

Trial). 103

Wall v. Macnamara, 1 Tere, ep 536 aidapility of Gorenor) 75
Winterbourne v. Mayer, 11 East rep. 395 (Abuse of Authority

of Law) . ‘i ‘ 363
Wright v. Fitzgerald, 29 State Trials, 760 (Martial Law) . 80
Wright v. Tatham, 4 Bingham’s new rep. 10 (Evidence) . 61

II—WORKS OF AUTHORITY ; LEGAL, HISTORICAL,
OR CONSTITUTIONAL.

Adolphus’s Hist. Engl. vol. 3, 254, (Lord George Gordon Riots) 24, 26

Amos’s Constitutional Law, (as to General Warrants, &e.) . 33

Articles of War, (as to Military Offences) . a‘ 60

Bentham’s Rationale of Judicial Evidence, vol. iv. 30, (Cour ts-
Martial) 60

Best’s Treatise on Bussinpilivs Pr at 112 (Huis of HAaauee) 68
Blackstone’s Commentaries, vol. i. p. 494 (as to the Prerogative) 20

 

 

 

 

 

——_—_—_—_ vol. i. 4 (Martial Law) 42
—_— vol. ii. 602 59
Gilbert on Evidence, (as to Presumptive Proof) . A 66
Hale’s Pleas of the oe vol. i. pone War oe the

Crown) 17
C i)

 

 

Hale’s Pleas of the Crown, vol. i. 14 (Common Law Powers oe
asto Riot . ‘ ‘ 3 . 2 ‘ z ‘ 5
(Non-liability of Jurors, &c.) . 49

(Sedition) . ‘ 65

Hallam’s Const. Hist. Engl. vol. i. p. 240 (Martial Law. . 45
ee acting in aid of the Civil

 

 

 

 

Power . ; ‘ ‘ a 46

——_—__-—. wo iii. 154 (Treason), ‘ » 119

104, 149 (Military Acts) ll

Hume’s Hist. Engl. vol. v. 154 (Martial Law) : ‘ 9

—_—__ —-—————— Appendix (Petition of Right) . ll

Macarthur on Courts-Martial, (Martial Law) . ‘ a 41, 42
Mill’s History of British India, vol. vii. 388 (Value of Rules of

Evidence) ; ; : 69

Phillips on Evidence, ak i, (Cinieeinade, Bidiienss 5 ‘ 189

Russell on Crimes, vol. i. 7 (as to Offences concerning Boldiers) 187
——_——__——_——._ (as to Compulsory Evidence, &c.) 188

 

vol. ii. 6 (as to Locality of Trial, &c.) ‘ 189
Simmons on Court-Martial, 5, 42 (Power of the Crowu to De-
clare Martial Law. ; ‘ z re ‘ 45, 46
——_—_—___———-_ 87 (Effect of Martial Law) . . 60
Stephen’s Commentaries, vol. (Martial Law) ‘ - 41,42
Stephen’s (Fitzjames) View of the Criminal Law, 164, 192, 246
Evidence, Examination of Witnesses, &.) . ” 406
305 (Criminal Titent) . 401
Wood’s Institutes, p. 15 (Martial Law) : ‘ : : 3
Williams’ Military Law, (Military Offences) . ‘ : . 257

IV.—OFFICIAL DOCUMENTS ILLUSTRATIVE OF
MARTIAL LAW.

Official Reports of Rebellion, on which Martial Law was De-

clared  . . . ‘ ‘ : : 112, -126
Declaration of Martial eri ; e -« “T27
Official Accounts of Rebellion, 128, 131, 132, 163, 206, 220, 226, 287
Reports of Commander-in-Chief, é ‘ 144, 170, 172, 198
Reports of General in Command, 130, 148, 150, 153, 156, 158, 164,

174
Reports of Officers to General, 145, 150, 151, 156, 157, 159, 166
Orders to Officers . ; . 139, 142, 143, 154, 158, 204, 229,
Orders of Provost-Marshal . 3 : : i . 136

Orders to Provost-Marshal 5 j ‘ : : 137, 205
( li)

Page
Orders of Officers to Men : . . 143
Despatches of Governor to Besretary of State, 130, 152, 161, 192,
200, 214, 237
Letters of Governor to Commander-in-Chief, as to distribu-
tion of the military force. ‘ ‘ 212, 219
Despatch of Secretary of State for War as i" Military Power
of Governor . 3 ‘ : fi ‘i - 171
Official Report of Extent of Rebellion é ‘ ; ‘ ‘ 286
Proclamation of Amnesty aes to . 213
Act of Indemnity : . z a _ 298, 229, 230
Official Documents as to the neuiey of the Crown into the
Execution of Martial Law F . 230
Despatches of pene of State as to Reseation of M atta
Law : ; 5 . A . 232, 234, 236

 

 

pening demands for expla-
nation . ‘ : "i i . é . 241, 242, 244
—_— astoenquiry . 258, 259, 269
Despatches of Governor as to Explanations, 245, 246, 247, 248-9, 250
Royal Commission of Enquiry : : : ; 260, 261
eport of Royal Commission as to Busenitan of Martial Law 420

 

 

 

ERRATA.
Page 8, line 11, dele ‘‘or the part.” Page 113, line 12, dele ‘‘or man.”
» 8, in notis, line 13, for “local,” read », 120, line 10, for ‘‘one or two” read
“ social.”” “a few”
»» 9, line 11, for “ became,” read “ be- », 121, line 5, dele “the head and
coming.” origin of.”
i 9, line 17, for “‘have” read “had” », 131, in notis, line 15, for the last
> 10, ,, 9, before “‘ vital” insert ‘‘of.” three words read “our ordinary
» 14, ,, 1, for “of the jrescue” read institutions.”
“Cig of the essence.” », 861, last line, for ‘‘ admitted” read
»» , 38, line 12, dele ‘‘ with it.” “« omitted.”

», 369, i nol, line 20, ‘‘ after woman”
“ (Ey, of Bernard. ye
» 9871, in en line 22, for the sentence,

¥ *38) 5 20, for ‘‘ purpose ” read ‘‘ per-
son
» 42, line 18, at end add ‘‘ has ceased.”

pas 53, ”, i6, for “granted” read “The case, &c.,” read ‘* He can
grasped. eAdass ive you no instructions, but

nar Oa: tos: 18s dele § in” a ; eaves all to your judgment.”

» 85, ,, 2, for “really” read ‘ mali- vy 878, line 12 for ‘or summary punisb-

liciously and merely.’’

ac read ‘ wom, ~
» 87, line 8, after ‘“‘dealt”read‘‘except.”” one ace

93. 875 in notis, line 15, for ‘‘nor” read », 385, ae a, for “ yevicwal" read
‘or. “review,” and for ee
» 94, line 7, for ‘‘rule” read ‘ Act.” read ‘“ appellate. ” “eles

», 96, last line, after ‘‘ colourable’’ dele
“and,” and insert ‘ :—.”

», 104, line 9, for ‘ prevent” read
“‘ punish,”

» 894, Be li for “proved” read

 
A TREATISE ON MARTIAL LAW.

 

PART IL

ITS NECESSITY, AND THE POWER OF DECLARING IT.

LAWYERS and laymen are alike apt to assume that the
common law, which, as the term implies, is the common
municipal law of the realm (a), and directs the proceedings
of the ordinary courts in ordinary times, or times of peace,
is the only law applicable, even in extraordinary times, and
even in great pressing emergencies of State, in which how-
ever, that law gives way to and allows others which it
embraces and includes (0), and yields to that upon which its
own authority rests—the public good, and the safety of the
realm, according to the old maxim, Salus populi suprema

lex.

(a) “The common law—the common municipal law of the kingdom—
which is the common rule for the administration of common justice.” (Hale
Hist. Com. Law, c. 3.) ‘This is that law by which proceedings in the
King’s ordinary courts of justice are directed.” Jbid. v. 2.

(b) “ The common law, besides those more common and ordinary proceed-
ings, includes within it the laws applicable to divers matters of very great
moment; and they are but parts and branches of it. Zbid. Thus it includes
Lex Prerogativa, as it is applied to that great business of the King’s prero-
gative.” Ibid. One part of that prerogative, it is well known, is the power
of proclaiming a state of war, whether with foreign nations, or by reason of
internal rebellion ; for rebellion is, in law, a state of war, whence it is that
the levying war against the Crown is one of the overt acts of high treason,

7 .
( 2 )

But the common law has always (a) recognised the right
of the Crown in a state of war, which requires stern, strict,
and summary discipline, to lay down such orders and rules
of discipline as may be fit to enforce in the army, either
among themselves or towards the enemy; and in such a
state these rules, and the usages of war, form the basis of
what is called martial law, which is, in fact, no settled or
regular law, buta kind of military power indulged in a state
of war.

And as civil war is as much war as war with a foreign
power, and rebellion is a state of civil war between the
subject and the Sovereign, it has always been considered by
the common law that rebellion is a state of war, and the
levying war against the Crown an act of treason (0).
By reason of the prerogative of the Crown, the common

(a) ‘The Kings of the realm, preparatory to an actual war, were used
to impose rules and orders for the due order of their soldiers’ (what are
now called Articles of War),‘‘ together with certain penalties on the offenders,
and this was called martial law. But touching martial law: it is to be
observed that, in truth and reality, it is not a law, but something indulged
rather than allowed asa law; the necessity of good order and discipline
in an army is that only which can give these laws acountenance. And the
indulged law was only to extend to members of the army, or to those of the
opposite army ; and the exercise of martial law, whereby any person should
lose his life or liberty, may not be permitted in time of peace, when the
King’s courts are open for all persons to receive justice according to the
laws of the land. For martial law, which is rather indulged than allowed,
and that only in case of necessity, in time of open war, is not permitted in
time of peace, when the ordinary courts of justice are open.” Ibid.

(6) See Hale’s Pleas of the Crown, vol. 1. c. xiv., “ of levying war against
the King ” as an act of treason. He goes on, indeed, to state, that to make it
treason, it must be a levying of war not only against the King, but within the
realm ; which is not material for the present purpose, except, indecd, to reveal
another of those defects or deficiencies in the common law, as applied to occa-
sions of great public peril,to supply which is one of the objects of martial law,
especially in our colonies and dependencies abroad. For, by the common
law, it is not treason to levy war against the Crown in such distant depend-
encies abroad, because it has no tendency to depose or dethrone the
Sovereign, and is not, as Hale shows, within the statute of treason. How-
ever, for the present purpose, that is not material, for the point, here, is not
what is treason, but what is a levying war against the Crown, as to which
Hale is full and explicit ; and it is that which justifies the declaration of a
(8)

law deems it, on the one hand, any rising in arms for a
general object, except under the authority of the Crown,
a levying of war against the Crown; and, on the other
hand, although it allows a self-defence, does not allow of
the subjects waging war, even in defence of the Crown,
without the commission or authority of the Crown or its
representatives,

The highest authorities on our law (a) declare that the
ordinary course of the law prevails only in time of peace ;
but when the peaceable course of justice is stopped by
invasion or rebellion, then it is deemed to be a time of war,
as inter arma silent leges; the commen law does not
interfere in time of war.

If there be a state of rebellion even within the realm,
against which the ordinary course of law is of no avail,
that is, if, within the legal meaning of the phrase (6), the

(a) “ When the courts of justice are open to distribute justice to all, it is
said to be a time of peace. But when, by reason of rebellion, &c., the peace-
able course of justice is stopped, then it is said to be a time of war. It
shall not be tried by a Jury, but by the Judges, whether justice at such a
time has her equal course of proceeding or no. For time of war doth not on'y
give privilege to them that are in the law, but to all others within the
kingdom. The military rule includes the soldiers; but in time of war,
particular orders are always made for the due order and discipline of the
soldiers, which we must consult upon all emergencies, and not expect any
standing or perpetual war on that account. But it appears that if any one
in time of peace put to death any man by colour of martial law, it is
murder, and contrary to Magna Charta.” (Wood’s Institutes, B. 1, «. v.)
But in a state of war, the common law has never interfered with the army,
inter arma silent leges. (Barwise v. Keppel, 2 Wilson’s Rep.318.) Before the
Petition of Right, martial law might on occasion be declared in time of
peace, and that act only relates to the realm of England. Soin the great
case of Johnstone v. Sutton, 1 Tenn. Rep. 549, which went to the House of
Lords, and is the leading case on the subject, it was solemnly held, in
accordance with the case just cited, that for the abuse of a military discre-
tionary power in time of war, the courts of common law have no original
jurisdiction; for that what was an abuse, and whether it was abuse or not,
is a question so much dependent upon military exigencies and military
considerations, that a court of common law will not take cognizance of it,
and a jury could not judge of it.

(6) This must be the meaning of the phrase, as, indeed, it is paraphrased
in the passage cited from Wood’s Institutes, for in any other scnse it would

B2
Cee

courts of law are not open—that is, not. really and practi-
cally open—for remedy or redress, so that the common
law cannot have its course ; then the declaration of martial
law is allowable.

Levying war against the Crown was always, by common
law, an act of treason, and betrayal of allegiance, and
forfeiture of protection. Hence, when the subjects declared
or levied war against the Crown, the common law recog-
nised the right of the Crown to levy war against them ;
and then those against whom it was declared were placed
in the position of enemies, and became subject necessarily
to martial law, and could no longer claim the benefit of
those rights of the common law, the course of which they
had thus disturbed and set at nought. This was the origin
and theory of martial law, as applied to the civil subjects
of the country. By a risingin rebellion, they had forfeited
their common law rights; by renouncing their allegiance
and subjection, they had lost the protection which is its
correlative. By acting as soldiers, and levying war, they
had become liable to be treated as soldiers, and subject
to the laws and usages of war ; and this applied necessarily
to the whole country or district declared to be under martial
law and in a state of rebellion; for ina time of rebellion
there can be no neutrality, and neutrality itself is a crime;

be absurd. It would not matter that the courts were sitting or open, in
the sense that process could be obtained or proceedings commenced, if the
law could not, so far as the rebellion was concerned, have its course, eifher
because of the great number of the offenders or their great power; their
ability to resist arrest by the ordinary civil power, and the difficulty of
identifying and charging the actors in particular outrages, and proving
specific charges against them, which is necessary in order to a criminal
prosecution. It might be that there were some thousands of rebels or
rioters who had eommitted among them considerable atrocities, either in
the way of murder, plunder, or arson, &c., not one of whom could be
arrested or identified, and committed for trial upon proof of any specific
offence ; and this is especially likely to be the case where bands of rebels
rise in different districts, nearly at the same time, and thus embarrass
and alarm the civil power of this country. In such a case it would be
idle to say that the courts were ‘ open.”
Gia" 3

so that those who are not active on the side of the Crown
may be lawfully treated as enemies, as well as those who
are active in the rebellion.

No man has a right by law to -be neutral in a time of
rebellion. The law imposes upon all able-bodied subjects
in time of rebellion the obligation and duty of doing their
utmost to serve the Crown, and suppress the rebellion.
Hence it is that, by common law, the Sheriff can call out
the whole posse comitatus, the whole power or force of the
county to assist him in quelling a rebellion, and those who
neglect or refuse to do so are deemed criminal, and are
indictable and punishable for the refusal. This is the true
origin and theory of martial law. It takes its origin from
that principle of the common law: the right and duty of
every subject in time of rebellion to assist the Crown in
putting it down. Those who do not do so, the Crown may
treat as enemies, as well as those who are active in rebellion;
and thus, by declaring a state of rebellion, or proclaiming
martial law, and then treating all who are not acting against
the rebellion as parties to it, no injustice is done to any
one, and the principles of the common law are only carried
out : though carried beyond the cowrse of common law.

The magistrates (a) are at common law all empowered to.
raise the power of the country to assist in suppressing any
riot, either on their own or upon credible information of a
notorious riot, even at a distance, whether there was in
truth such a riot or not, and all men, officers or private per-
sons, soldiers, and such as are authorized to assist in sup-
pressing a riot and arresting those implicated; but then,

(a) Hawkins’ Pleas Crown, 65. The magistrates, at common law can only
arrest offenders, and cannot kill, unless necessary to disperse a felonious mob,
nor kill a person resisting arrest unless charged as a felon: for which
reason the Riot Act made it felony after proclamation read, &c. Hence
the exercise of the common law power to suppress a riot or rebellion by
force of arms is always attended with great risk, as is laid down by all legal
writers, (vide ibid), and this was the real difficulty in the Lord George
Gordon riots, and the riots at Bristol, &c., the risk, at common law, of killing
a person not actually engaged in a felonious outrage.
CB)

there is great risk, at common law, in the use of deadly wea-
pons, or in the killing of those in a mob who are not guilty
of felony; and therefore there is always great risk and
peril in thus acting at common law, in an indiscriminate
attack upon any unlawful assembly.

By the common law, no doubt actual rebellion may be
resisted and suppressed by force ; but then, in the first place,
that supposes and requires a force adequate to the purpose ;
and if such force is limited to mere resistance of acts of
violence, a small will not avail against an overpower-
ing force ; and, in the next place, in the use of deadly wea-
pons against riotous assemblies, there is at common law
great risk of legal liability if persons are killed in indis-
criminate attacks on rioters, who are guiltless of any parti-
cipation in felony ; and further, where there is a widespread
disaffection, and a great preponderance of force on the
side of, and in sympathy with, the rebellion, there is no
safety for the inferior force, unless, as in war, there be such
indiscriminate attacks upon any bodies of men in the rebel-
Hous district, as can scarcely be safely made, unless martial
law has been declared, and thus the strict rules of the com-
mon law suspended and got rid of fora time, so as to allow
of the full and free use of all military measures which mili-
tary usages shall suggest, without fear of legal liability.

And even as regards actual riot or rebellion, there maybe a
necessity for a much more indiscriminate attack upon those
apparently assembled as rebels, than can be deemed safe
at common law (#) ; and, moreover, the rebellion may exist,

(a) The real difficulty in suppressing a riot or rebellion at common Jaw
is the difficulty of justifying a general and indiscriminate attack upon any
body of men met with, assembled together ; for in case of homicide at com-
mon law, it is necessary to prove by legal evidence that the persons slain
were slain in some feloniousact, or inresisting arrest on some charge of felony,
or in compassing some treasonable purpose, to which the proof of guilty
intent is necessary. A number of men cannot be safely attacked with
deadly weapons, merely becausc they are unlawfully assembled, for that is
a mere misdemeanour, and at common law the onus of proof of justifica-
tion is thrown upon the person who has committed the act of homicide jand
et)

though actual outrages have been averted ; and, where the
rebellion is believed to be widespread, and the result of popu-
lar feeling, and the force at disposal small, there may be a
necessity for acting, by way of anticipation, without waiting
for actual attack, against persons thus in a state of rebellion,
and taking measures which common law may not warrant.

Those who have the control of the armed force, civil
or military, to be used in suppressing rebellion, are, under
the common law, constantly harassed and paralysed by the
fear of using it against those who may be comparatively, if
not entirely innocent ; and, on the other hand, the great
numbers, and the roving, ambulatory character of the re-
bellious or riotous bodies of men, renders it practically
impossible to arrest and identify offenders, and give legal
proof against them of specific offences; as it is necessary
to do, unless they are fixed by strict legal proof with a
felonious or treasonable conspiracy, so as to make them
liable for the felonious acts of others; and thus, again, it
will be probably impossible to prove, even if such con-
spiracy exists, as it may not, even in the case of the worst
and most dangerous insurrections. Thus, whether with
regard to the common law powers of suppression or of
prosecution, they are almost useless in the case of a rebellion,
if it has any great diffusion and extension.

The common law, while on the other hand it made felonies
capital, and therefore, with consistency, allowed felons to
be resisted, if need be to the death, and to be arrested also,
at the sacrifice of life, did not allow life to be taken for
mere misdemeanour ; and unlawful or riotous assemblies
were, in themselves, apart from any felonious outrage, or
treasonable design,—no more. Hence there was great
difficulty at common law in dealing with a rebellion; for
it could rarely be put down without an armed force and the

it is impossible to prove a justification on the score of self defence, if they
have been first attacked with deadly weapons, and are not proved to be
felons or traitors, which the mere fact of unlawful assembly, or of acts of
outrage by others, will not prove.
( 8)

use of deadly weapons; and though these might be used
against persons engaged in a felonious purpose, yet it was
otherwise of mereunlawful assemblies, and in time of rebellion
such assemblies are so ambulatory, so constantly changing,
that the body of men at a given spot, where felonious out-
rage has been committed, may not be the body of men
by whom it has been committed, and may be mere rioters,
whom it may be, at common law, unsafe to attack.

And hence, at common law, in early ages, before the
time of standing armies, the crown was accustomed to
assume, in time of rebellion, the power or the part of acting
with military power, when there was a degree of lawless
violence and outrage, with which the ordinary civil power
was unable to struggle, and which might or might not
have the character of rebellion.

Such risings might have that character of rebellion with-
out any actual combination or conspiracy, when they were
the result of what is far more dangerous—some common
cause,—some common feeling of disaffection or animosity
of class, likely, upon some little provocation, to be raised,
as fuel is kindled bya spark, into a widespread flame of
rebellion (a).

This state of things has not been for many generations
witnessed in this country, but in former times, in
days of serfdom, when it often did exist.(b), it was and

(a) Of this nature were the numerousinsurrectionsof the serfsand villeins,
and labouring classes, which took place inthe earlier part of our history,
and which were uever suppressed without much bloodshed. There was
never any actual combination ; the low degree of intelligence at that time
existing among. the lower orders precluded it. But there was, what proved
infinitely more formidable, a common feeling of hatred for the classes above
them, and a common sympathy in that feeling, which was ready to be fired
in a moment, by any casual spark of provocation and resentment, into a
terrible insurrection. Our own history and that of many other European
nations, teem with illustrations of this in former times.

(6) We are apt to forget that those phases in the progress of a nation
which we have long ago passed through—serfdom, for instance,or Villeinage,
and the legal or local inferiority of alarge class of the population, which
(9)

could only be met and dealt with by martial law; and in
thosé times, our Sovereigns sometimes resorted to that stern
remedy, when there was a dangerous degree of lawless
violence, not of the character of rebellion, but only of
the character of a great accumulation and aggregation
of acts of outrage, without any common purpose or
object.

These instances (a), many of which are mentioned by
our historians, were not objected to at the time, because the
necessity excused them ; but when the state of things which
excused them had passed away, our ancestors became more
jealous for personal liberty, and of the power of the crown
enacted, in the Petition of Right, that, within the realm,
martial law should no longer be proclaimed in time of
peace, but that it should only be proclaimed in time of war
or rebellion.

The state of things (6), which led to these outbreaks have

always causes class hatreds ; at the present time, it characterizes other pore
tions of our world-wide dominions and dependencies, and therefore that the
law which in this country has happily been made obsolete for ages, is just
as applicable, in our own times, to those distant territories where that state
of things either exists, or its abolition is so recent that it has left behind
smouldering animosities which may at any moment break out as they did
in this country in the middle ages.

(a) Vide Hume's Hist. Eng. vol. v. p.154. Hallam’s Const. Hist., vol. i. p.
242. These instances are quite distinguishable from cases of rebellion, because
however numerous the robbers might be, and even though they were about in
parties, there was not only no conspiracy or combination (except perhapsin
such small parties as engaged in robberies together), but there was no com-
mon feeling and no common object, which could lead to a general combina-
tion among them. They shared, it is true, a common predatory instinct,
but each had his own purpose, and it was purely selfish and separate, and
had not the character of a common feeling of hatred or animosity to another
class, which binds men together by an instinctive sympathy.

(6) The state of villeinage or serfdom which, of course led to constant
heartburnings and hatred of class against class; and, even long after its
abolition, by reason of the numbers of unemployed labourers about, there
were continual rebellions. The last case of villeinage was in the reign
of Elizabeth; and even that was a solitary case, and the system had
practically died out, and about the time of the Petition of Right it became
legally obsolete by the abolition of feudal tenures. But there were
( 10 )

passed away, and the age has long been remote in which
even rebellion would be likely to become formidable. In this
country, too, the spread of intelligence and enlightened free-
dom has rendereditextremely improbable that there will ever
again occur a state of rebellion which would justify martial
law, so that it is, as regards this country, a question
purely speculative and constitutional, and it is only in our
distant dependencies that it has any practical importance.

There, it may be vital, of terrible importance, for it may
at any moment afford the only really effectual means of
suppressing a formidable rebellion which, if once allowed
to make head, will be fatal. The state of things supposed is
the exact reverse of what happily prevails in this country.
Here, there is certain to be a vast preponderance of force
on the side of law and order, and the consciousness of this
gives confidence to the loyal and weakness to the disloyal,
so that the ordinary power of the law, at all events, aided
by the military in any casual encounter, is sure to be
effectual ; but in these distant dependencies, the state of
things is often just the opposite. There is a vast pre-
ponderance of force, perhaps, on the side of insurrection,
and the consciousness of this gives boldness and confidence
to the bad, and discourages the good; so that, unless they
are allowed to use all the promptness and energy of military
action, they are certain to be lost. They are a small force
surrounded on all sides by an overwhelming force, and
they have no safety but in most decided measures, which
can only be taken under martial law. Their salvation,
therefore, depends in this great power of the Crown to
declare martial law.

This power of the Crown by the common law, is vir-
tually implied and declared by the Petition of Right (6),

vast numbers of idle, dissolute men about the country, utterly ignorant and
averse to honest industry, who had not yet learnt the uses of freedom, and
found it easier to rob than labour.

(6) Reciting that by the great charter and other the Jaws of the realm,
( Wl)

whereby it was in substance declared that commissions of
martial law within the realm in time of peace were unconsti-
tutional and illegal, and that no man should lose his life or
liberty in time of peace but by the law of the land, which
has since been repeated in every Mutiny Act from the
Revolution to the present time, and implies that martial
law may be declared in time of war, within the realm, or in
our dominions out of the realm.

But this limitation of the power of the Crown only
applied to the realm, where the power might thus safely be
limited, and even within the realm the law still recognized,
that there might be a state of war between the Crown and
its subjects, by reason of armed rebellion of subjects against
the Crown, which would be levying war against it, and an
act of treason. And that levying of war which would be a
capital crime upon legal prosecution, might by law justify
the declaration of martial law necessary for its sup-
pression (a).

no man ought to be judged to death but by the laws established by customs
of the realm or by acts of parliament, and that commissions had issued to
proceed within the law, according to the justice of martial law, against
soldiers or dissolute persons who should commit any felony, mutiny, or
other outrage, and by such summary course and order as is agreeable to
martial law, and as is used in armies in time of war, to proceed to the
trial and execution of such offenders, according to the law martial, by
pretext of which they have been put to death, when by the law of the
land they might, and by no other ought to have been judged and executed,
and enacting that hereafter no commissions of the like nature may issue
forth to any persons whatever to be executed as aforesaid, lest by eolour of
them any be put to death contrary to the laws of the realm. Hale’s
view of the meaning of this is, that martial law is not permitted in time
of peace, and that is the view embodied in the recital in every Mutiny Act
since the Revolution, and affirmed by Hallam, vol. i. p. 240.

(a) See the chapters in Hale and Hawkins (Pleas of the Crown), upon the
subject of high treason. This subject hasnot, unhappily, even in England,
become quite obsolete, and even in our own time we have seen cases of high
treason, by levying war against the Crown, asin the case of Frostjand others,
some years ago, in Wales. And in a country adjacent to this, in which the
common law is the same as in England, we have seen quite recently a state
of widespread disaffection and preparation for rebellion, calling for the
suspension of the Habeas Corpus Act, and for preparations for martial law
( 12 )

That a levying of war of subjects against the Crown,
whether within or without the realm, justifies the declara-
tion of war on the part of the Crown against them, is quite
clear, upon our common law authorities, and it is equally
clear that what is a levying of war against the Crown is
entirely a question of fact, though upon certain legal
principles laid down by the common law, to be decided
by the supreme authority at the time upon the circum-
stances as appearing to them to the best of their judgment ;
the great tests, however, being, numbers arming and
drilling (a).

It is clear law (8), that the raising of an armed force

which no doubt would have been proclaimed upon the first rise. See the
masterly charge of Mr. J. Keogh to the grand jury of Dublin on the occa-
sion of the special commission for the trial of the rebels, in which he laid it
down that any levying of war against the Crown, that is, rising in armed
force against its authority. however weak the attempt, is an act of high
treason.

(a) “ What shall be said a levying of war isin truth a question of fact,
and requires many circumstances to give it that denomination, which may
be difficult to enumerate or define, and commonly it is formed by the
words more guerrino arrati, arrayed after the manner of war, As where
people are assembled in great numbers armed with weapons of peace or
weapons of war; if they march thus armed in a body; if they have chosen
commanders or officers; if they want cum vexillis explicatis (with banners
displayed), or with drums or trumpets, or the like; whether the greatness
of their number and their continuance together during those acts may not
amount to an army after the manner of war may be considerable.” Alt
these circumstances will be found to have been combined with Jamaica
case, 1865, vide post. “But a bare conspiracy or consultation to levy
a war and to provide weapons for the purpose, is not a levying of war,
though it may be an act of treason. Again, the actual assembling of many
rioters in great numbers to do unlawful acts, if it be not after the manner
of war, or inspecie belli,as if they have no military arms, nor march or
continue together in the posture of war, may make a great riot, yet it does
not always amount to a levying of war.” The extreme caution of the mode
of definition here adopted clearly indicates a very large discretion in the
authorities who are to decide the question, it being in its nature a
question of fact.

(8) Hale cites from Anderson’s reports the following very illustrative
case. “ Divers apprentices of London were committed to prison for riot and
for seditious proclamations as to the price of victuals, &c., for which divers
( 13)

against the office and authority of the Crown (or its
representative in a colony, or dependency, or foreign
dominion), with a view to enforce or exercise any acts of
Government, whether or not coupled with acts of outrage
by such armed force, is a levying of war against the Crown,
within the strictest possible definition of it. This has
been held over and over again.

In the consideration of the question what is a levying of
war, even with reference to the offence of treason (a), in

others conspired to take them out of prison, to kill the mayor and burn
his house, to break open the houses where arms were to be found, and thence
to furnish themselves with weapons and arms for three hundred more:
after which, divers of them devised seditious libels, moving others to take
part with them in their movement and to assemble themselves, and accord-
ingly divers assembled themselves and had a trumpet, &c., and in going
towards the mayor’s house they offered violence to those who resisted
them, but slew no one. It was held that this was a levying of war, and an
act of high treason, for which several of them were convicted and executed ;
and it was said by the judges that if any do intend to levy war for any-
thing that the Queen by her justice ought or may do in government as
Queen, that shall be declared a levying of war against her, and it is not
material that they intended no ill to the person of the Queen, if intended
against the office and authority. The result was, of course, that if the
rebellion had been formidable enough to require it, martial law might have
been declared. It is curious how the same cases are reproduced in history,
and the insurrection in Jamaica in 1865 was in substance the same as that
the first cited, although infinitely worse and more formidable, and accom-
panied by an actual massacre. Hundreds of men who had been skilled for
months, were armed, partly with weapons taken froma police-station, arranged
in something like military order, marched down upon a county court town,
where the custos or lord-lieutenant was with several of the magistrates, and a
body of volunteer troops attacked them and massacred most of them; and
thus commenced a system of massacre, and burning,and plunder, which lasted
several days, with the avowed object of slaying or expelling all the whites.
(a) Thus in the case cited by Hale, of the weavers in and about London,
who assembled in several places within the metropolitan counties, to the
number of several hundreds, and stormed several houses, and burnt engine
looms, defying the magistrates and peace officers. He says, ‘‘It is true
they had no warlike arms, but that was supplied by the number, and they
had such weapons as a rabble could get, as staves, clubs, sledges, &c.”
Moreover, he calls it an insurrection, and states, that, during all the time
of the tumult, little or nothing was done to suppress them, until the Lords
of the Council were constrained at an extraordinary time to assemble, by
(42)

which the intentions of the rescue, the numbers of those
engaged may be an important ingredient, even in the
absence of arms or military array ; but with reference to
the declaration of martial law, as to which, necessarily,
danger is the main consideration, of course the element of
number becomes still more important, even apart from
military arms or array.

The question being one of fact (a) dependent upon all the
circumstances, although when it arises at common law on
a charge of treason it is for the jury to determine it under
the direction of the court; in a case of rebellion and the
declaration of martial law, itis for the supreme authority—
the Crown, by its ministers or representatives—to decide
to the best of their judgment ; and if they do so, wrongly,
they cannot be criminally liable, because it is a question of
judgment and an act of state. It being a question of fact (0)

whose direction and orders as well to the civil magistrates as the King’s
guards, they were at last quieted. Five of the judges, Hale says, held this
to be not only the levying of war but an aet of high treason, and Hale ap-
pears to have been of that opinion ; he says, “In respect of the manner of
the assembling, though they had no weapons or usages of war, yet their
multitudes supplied that defect ; being able to do by their multitude what
a lesser number of armed men might scarce be able to effect by their arms.”
144. Five of the judges doubted “whether the crime of treason had
been committed, seeing that there were no arms nor confederacy to get
arms nor military array, &c.” And further, they doubted the generality of
the object.

(a) It must be carefully borne in mind that when Hale and other law-
yers treat of it, they are treating of it under the head of high treason,
witha view toa trial for treason, upon strict legal proof, in which case, however,
as it is a question of fact, it is for the jury, not the court. In the case of
martial law, it is for the crown, by its ministers or representatives, to decide
at on their judgment, and, as it is a question which depends on cireum-
stances and the present aspect of affairs, it is not for others to review
their judgments after the event, by the light of facts and circumstances
afterwards disclosed ; and, at all events, it isa general principle of law that
an honest judgment, on a question of fact, by persons whose legal right and
duty it is to decide it, ean never be deemed criminal.

(6) Lord Hale lays down the general principle that war may be levied
against the crown directly, as when it is against the forces of the crown,
or constructively, as when it is to effect any general or unlawful object,
( 15 )

what is a levying of war, and a question which depends
upon evidence and upon circumstances so various that it is
impossible to define them particularly, it is necessarily a
question for the exercise of judgment upon all the facts
and circumstances of the case, bearing in mind that with
reference to the present question, the legality of declar-
ing martial law, turns, not so much on degree of guilt, as
of danger, and the imminency of peril to the public peace
and the inadequacy of the civil power, and of the means pro-
vided bythe common law. All thatcanbe doneor said to guide
such men in the resolution of questions of fact like this (a),

as to throw down all enclosures generally, as distinct from a mere
private wrong or injury as a particular enclosure. “ What shall be
said in levying of war is partly a question of fact; for it is not
every unlawful or riotous assembly of many persons to do an unlawful
act, though de facto they commit the act they intend, that makes a
levying of war. For then every riot would be « treason; but it must be
such an assembly as carries with it spectem belli, the appearance of war, as,
if they made a march with banners, or if they are armed with military
weapons, as swords, or guns, or pikes; and are so circumstanced that it
may be reasonably concluded that they are in a posture of war, which
circumstances are so various that it is hard to define them all particularly.”
And he goes on to state that an arraying in arms is absolutely enough
to make an overt act of high treason, without actual warfare or fighting,
or any actual homicide ; and so of a getting of arms. “ And the reason
hereof seems to be, because when an assembly of people thus arm them-
selves, it is plain evidence that they mean to defend themselves, and make
good their attempts by a military force, and to resist and subdue all power
that shall be used to suppress them ; and besides, the very use of weapons
by such an assembly, without the King’s licence, unless in some lawful
and special cases, carries terror with itj#and a presumption of warlike
force.” Ibid. 151. Constructive levying of war is not so much against the
King’s person as his Government. If men assemble in the manner of
war to kill one of His Majesty’s Privy Council, this is a levying of war
against the King. Jdéd. 153. And this seems to apply equally to the
representatives of the King in his colonies and dependencies abroad.

(a) After laying down the general principle ut supra, Lord Hale proceeds
to cite instances as illustrations, observing that particular instances will
dest illustrate the subject. Thus he mentions, as an instance of construc-
tive levying of war, a rising for the purpose of enforcing an increase of
wages (Pleas of Crown, vol. i, p. 132), or the raising an armed force to
pull down enclosures generally—‘If divers persons levy a force or multi-
tude of men to pull down a particular enclosure, this is not levying of war,
but a great riot; but if they levy war to pull down all enclosures, or to
( 16 )

is first to lay down general principles, next to supply some
particular instances by way of example aud illustration :
and illustration often teaches better than abstract definition ;
but both must be combined to form a clear judgment on
a question necessarily dependent upon circumstances.
There can be no doubt, however, that an actual rebellion
or insurrection is a levying of war. That the combination
of men, with a view (a), by force, to effect a general change
of government, or any general unlawful purpose whatever,
even in a state of peace, amounts to a levying of war against
the Crown, is clearly laid down by all authorities, and the
theory of martial law is that if the ordinary means are
inadequate to deal with this the Crown may choose to treat
it as a state of war, and proclaim martial law, leaving it to
be dealt with under military power.

expel strangers, or raise wages, this is a levying of war against the King,
because it is generally against the King’s laws, and the offenders take upon
themselves the reformation, which subjects, by gathering power, ought not
to do” (Ibid, 137); so of a design to break prisons or deliver persons out of
ptison generally (Ibid), It must be borne in view that throughout Lord
Hale has in his mind rather the common law offence of high treason, and
is therefore disposed to be very strict in his views of what would be a
levying of war to make that crime; but he says distinctly that an actual-
rebellion or insurrection is a levying of war (Ibid 145).

(a) Wherever the intention of an unlawful assembly is to redress public
grievances, as to pull down all enclosures in general, or to remove evil
counsellors from the King, &c., if they attempt with force to execute such
their intentions, they are in the eye of the law guilty of levying war
against the Crown (Hawkins’ Pleas Crown B. 1 ch. 65, s. 6; ch. 17, 8. 2).
In many cases those who, in a violent manner withstand the lawful
authority of the Crown, or endeavour to reform his government, are said to
levy war against him. And therefore those who make ‘an insurrection in
order to redress a public grievance, whether it be a real or pretended one,
and of their own authority attempt with force to redress it, are said to
levy war against the Sovereign, although they have no direct design against
him, because they would both invade his prerogative by attempting to do
that by private authority which he by public justice ought to do, which
manifestly leads to rebellion, as where great numbers attempt by force
to revenge themselves against u magistrate for executing his office, or to
remove all enclosures, &. But where a number of men rise to remove a
grievance to their private interest, as to pull down a particular enclosure,
they are only rioters (Jbid). :
Ce

lt is to be observed (a) that the levying of war by sub-
jects against their sovereign or the state, may be without
or before any actual hostilities or acts of outrage or rebellion ;
for the offence, as an overt act of high treason, in point
of strict law, and legal proof, is completed by the arming
and arraying, with the unlawful object of hostility to the
government. What constitutes a state of rebellion or civil
war, rests in the judgment of the sovereign or supreme
authority.

As a state of war (b) may be between two kingdoms

(a) Thus Lord Hale, in describing the nature of the charge in indict-
ments for high treason, states the several expressions he has seen,
“arrayed after the manner of war, and sometimes other expressions being
added, as the facts would bear, as with banners, with arms offensive and de-
fensive, with trumpets ;’” without saying that any actual hostilities took
place, &c., and he adds that though it be a question of fact whether war be
levied or conspired to be levied, which depends upon the evidence, and that
though some overt act must be stated in the indictment for treason, yet
this is usually only “arrayed in the manner of war,” or armed, or con-
spiring to get arms, and it is not necessary, even in indictments for high
treason, to state that there were any actual hostilities ; or any acts of felon-
ious outrage ; nor any actual violence or use of arms, and he cites a case
already alluded to, where men were convicted of treasonable conspiracy to
levy war, for putting down enclosures, beeause they conspited to get arms,
in order to arm themselves for the object.

(6) Thus Hale, treating of the acts of treason committed by adhering to
the King’s enemies, which, as regards persons, is limited, by statute, to fo-
reign enemies or invaders, says, “If de facto a war be actually between
two states, they are in a state of war without any declaration, and if a
foreign power violates the peace, and becomes an aggressor, though with-
out any declaration, the person that is upon his defence is not bound to
make a declaration of war, which is only necessary on the part of the ag-
gressor ; and if there be great provisions of hostility or the like, then the
declaration is not requisite even in the aggressor, but supreme sovereigns
take themselves to be judges of private injuries, and the manner, means,
and seasons for their reparation ; and therefore if de facto there be a war
between princes, they and their subjects are in a state of hostility, and they
are in the condition of enemies to each other. And he goes on to say that
war is of two kinds; solemnly declared and not solemnly declared, or
where two countries slip suddenly into a war without any ceremony. Pleas
and the Crown. vol. i. p. 162-163. As he mentions that preparations for
hostilities make a state of war, without any formal declaration of it; by
analogy itis, between sovereigns and their subjects, if the necessity, as a

Cc
( 18 )

without either any actual hostilities on the one hand, or
without any solemn proclamation or declaration of it so, On
the other hand, there may be a state of war previous to
actual hostilities, by reason of the declaration of the state
of war by one power against the other; and so as be-
tween the crown and its subjects in a state of rebellion, it
is the declaration of it, as well as actual rebellion, which
makes the state of war, and preparations for war or re-
bellion may constitute a state of war or rebellion.

But, as there may be levying of war without actual hos-
tilities, so the state of rebellion (#) which justifies martial law
may well exist, without that actual levying of war which
would support in strict law an indictment for treason ; be-
cause there may be a conspiracy or confederacy to levy war,
either without or before the actual levying of war, just as
the levying of war must precede actual rebellion, so the
conspiracy must generally precede the levying of war;
and, if the confederacy be so formidable that, if allowed to
come to a head, it may be fatal, it may justify the declara-
tion of a state of rebellion, and that is the declaration of
martial law.

In this country (6), as the Petition of Right prohibits

matter of military exigency, or state policy, appears to require it for the sake
of the public weal. War may be levied without fighting. 2 Salk. 635.

(a) A conspiracy or confederacy to levy war, or that is to do such an act,
which, if it were completed and attained its end, would be an actual levying
of war, is not alevying of war within the statute of treason. (Hale’s Pleas
Crown. vol. i.p. 148.) But it may be an act of treason in another way, if
accompanied with an overt act endeavouring to or conspiring to get arms
unlawfully (by breaking into houses, &c.), for the purpose of levying war
or raising a rebellion, and so of meeting and consulting for the effecting of
it, &e. (bid. And, as these preparations for rebellion themselves indicate
a state of rebellion, previous to actual rebellion, and if the confederacy is
so likely to spread, and, if it becomes general, will be formidable, perhaps
fatal, it is obvious that it would be absurd to wait until it became irresistible
before taking the severe step of declaring martial law, supposing the dan-
ger required it.

(6) That is, England, the realm, meaning this country alone, within the
four seas, according to the legal phrase. It is to that alone the Petition of
Right relates, which declares that martial law shall not be proclaimed
( 1 )

martial law in time of peace, there must be a state of
war to justify its declaration ; and though, as the law of
treason shows, there may be civil war by an armed rebellion
of subjects against the crown, probably to make a case for
martial law within the realm or in England, there must
at least be an actual levying of war in rebellion, if not ac-

tual hostilities.

In this country, it is true, the imminency of public peril,
which will justify martial law, even short of actual rebellion,
is not likely to occur (a), but there is a country, forming
part of our dominions, where the necessity for it has arisen
within living memory, and there are many distant colonies
and dependencies to which the Petition of Right does not ex-
tend, and in which there is a small white population in the
midst of an enormous native population. There the state of
things may be very different indeed, and the suppression
of a conspiracy, which threatens to be fatal, may be the
only chance of safety, and that may only be possible by

martial law.
The power or perogative (b) vested in the crown of declar-

within the realm in time of peace, which implies that it may be, here, in
time of war, civil or foreign, and that it may be out of the realm, in Ire-
land or in any colony or dependency, if there is a case for it by the
common law, or any local law, statutable or otherwise (as there may be, by
some imminency of public peril, through a conspiracy to levy war or raise a
rebellion,) although there is no actual rebellion or levying of war.

(a) Because the civil and military powers combined, are always adequate
to repress any rebellious or riotous movements, and in this country such
movements are less likely to be rebellious than merely riotous. But in
1798, there wasa dangerous and sanguinary rebellion in Ireland, and in
1848 and 1865 there were preparations for, and anticipation of, widespread
insurrections. In Hayti, itis a matter of history, that the negro part of
tbe population, not much more than half a century ago, committed a ruth-
less massacre of the whites (vide Pinkerton’s Geo. vol. i.), and in Jamaica
in 1832 there was a negro rebellion, in which the white population were
placed in terrible jeopardy. The recent rebellion in the same island, last
year, in which there was a partial massacre, and evident attempts at a
general and ruthless course of murder and plunder, is another illustration.

(4) The prerogative of the crown means that special power which the
sovereign has ; and which, though part of the common law is out, of its or-

2c
( 20 )

ing a state of war, and proclaiming martial law, is based
upon necessity, and that necessity has more to do with
imminency of danger and inadequacy of force, than with
the actual degree of legal guilt assumed ; and, it is mapi-
fest that there may be infinitely more peril in a widespread
conspiracy or confederacy to cause a rebellion, which, if it
once arises, it would probably be fatal, and an actual rebellion
by so small a proportion, of the population as to be compa-
ratively hopeless, and capable of suppression, even by the
ordinary force.

The necessity for martial law which justifies the ex-
ercise of the prerogative in declaring martial law, must
depend mainly upon considerations of public policy and
military exigencies—comparing the apparent or appre-
hended extent of the danger with the adequacy of the
means to prepare for, avert, or meet it. And this latter
consideration must a good deal depend upon the means
allowed the common law for the purpose (a), and upon

dinary course (Blackstone’s Comment. by Stephen, v.i. p. 494.), hence it fol-
lows that it must in its nature be singular and exceptional. And hence
Finch lays it down that the prerogative is that law, in case of the king, which
is no law in the case of the subject. Jbid. Hence the power of declaring mar-
tial law must mean the power of declaring a state of things in which
that may be done by subjects, under that authority, which cannot be
done at common law, and hence it must mean far more than the mere sup-
pression of actual rebellion, because for that, all the subjects of the realm
have full power, without any special authority. In the execution of the
royal perogative which the law has given the sovereign is absolute (Jéid 506).

(a) It is obvious, that the only way to understand martial law, or the
necessity for declaring it, in apprehension of an insurrection, is to consider
the means of meeting it at the disposal of the authorities, which are of two
kinds, legal and physical. By legal means are meant legal powers,
whether of arrest, prosecution, resistance, or suppression ; by physical, are
meant the amount of force actually at command to enforce and exercise
these legal powers. Martial law must mean something more than common
law allows, and the first question, therefore, which lies at the basis of the
subject is, what are the legal powers or means which the common law
allows to be used, with a view to meet or avert a menaced or actual insur-
rection. That of course is a question of law: the other, the actual means
and remedies, is one of military policy or judgment.
( 21 )

the amount of force, civil or military, at the command of
the authorities.

It must not be supposed that, at all events owt of the
realm, martial law can not be legally proclaimed, except
where there has been an actual levying of war against the
Crown (a), for it is levelled at a state of rebellion.

Wherever there is an actual levying of war against the
Crown, the remay be a declaration of martial law, supposing
there is any need of it, as there may not be, for the rebel-
lion may be trivial and easily dealt with. On the other
hand, there may be a case for it even in preparations for
a rebellion, and the imminent peril of one so formid-
able, that if it breaks out it must be fatal.

It is the state of hostility (6) which leads to actual insur-
rection with which martial law deals, and with which it
deals, in order to prevent actual insurrection, by means of
summary severity of military rule, It is the special remedy
where there is reason to believe that the disaffected part of
the population is in a state of rebellion, and preparing
for actual insurrection, and is so numerous and formidable
that if they once rise en masse the result must be fatal.

(a) The Crown, as against a foreign power, may declare war, because it
finds that the enemy engaged in active preparations for war; and go, as
against a domestic enemy, if a large part of the population are arming and
drilling evidently for the purpose of a rebellion, which if it once breaks
out may be formidable, if not fatal. It is merey to the disloyal, and not
less than to the loyal, to proclaim martial law at once, and put a stop to
a state of rebellion which does not the less exist because it is latent, and
not yet displayed in overt acts of felonious outrage. Surely prevention is
better than retaliation or punishment ?

(6) In the language of the Irish Act, the spread of disaffection, showing
itself by some acts of rebellion, which are chiefly important as showing the
danger that exists of that spirit spreading and diffusing itself through the
whole mass of the population. In many of our colonics and distant depen-
dencies, if it ever comes to that, there is no hope: all is lost. The dis-
proportion is so enormous between the native population and the white,
that if the former are allowed to rise en masse the whites must surely be
annihilated. Under such circumstances, what remedy is there but the
suppression of this spirit of rebellion by the stern and summary severity of
martial law ?
(225

It lies at the basis of the whole question to consider that
the scope of martial law is a state of rebellion or of war
against the Crown (a), rather than mere resistance to rebel-
lion, which requires no special authority at all. Where a
large part of the population are arming and drilling, evi-
dently for the purpose of msurrection, there is as much a
state of rebellion as if the insurrection had broken out.

The more the subject is considered, the more it will be found
that the propriety of the declaration of martial law, as well
as for its execution or operation, and the means and
measures taken, must be matters of military exigency (0),
applicable not only to an actual levying of war, but to a
state of rebellion. The necessity for it can hardly arise,
except when from circumstances there is imminent danger
of the disaffected class greatly outnumbering the rest, and
the position of the smaller body in presence of that peril
must be a matter of military exigency.

In considering the scope and nature of any special or
peculiar law, it is necessary to consider the nature of the
common law (c), in the class of cases comprised within the

(a) This, in fact, is the true meaning of declaring or proclaiming martial law.
It is the declaration of a state of war or rebellion, for, as Lord Hale says, it
is no law at all. It is a state of war not yet proclaimed. Every one knows
astate a war may exist before actual hostilities, and indeed necessarily pre-
cedes them. Between twoindependent parties, when war is “declared” before
actual hostilities on either side, then the war dates from that declaration,
not from the first engagement. A state of war is a state of armed hostility,
and that state may exist between the Crown and part of its subjects before
actual rebellion. The great objeet of martial law is prevention.

(6) The question, what amounts to an actual levying of war against the
Crown, when it arises as an overt act of high treason, is a question of fact,
though it may be one of strict legal proof. Ina case of martial law, it is
not a question of absolute fact, which requires strict legal proof, but
rather of judgment, upon’such information, and means of judgment, as may
be obtainable. The distinction is vital to the whole question. Where there
is actual levying of war, it is beyond a doubt that martial law may be pro-
claimed, supposing there is any doubt as to the sufficiency of the civil force
But it may be that there is no actual levying of war, and yet that there may
be a state of rebellion against the Crown.

(c) This is the rule laid down by lawyers as to the construction of
( 23 )

peculiar law, so as to see the difficulties or defects of the
common law in the class of cases under investigation, and
thus to see the objects which the peculiar law would be
supposed to have in view, in order to remedy and supply
its deficiences or difficulties with reference to its procedure,
its provisions, or its penalties,

The common law (a), as has been already shown, makes
ample provision for the suppression of actwal riot or rebel-
lion, or resistance of actual outrage, and allows of any
measures necessary, however severe, even to the extent of
the use of deadly weapons and putting to death of persons
actually committing such outrages or engaged in a fe-
lonious riot ; but then this involves the parties acting in
very great peril, so that it is not safe to act, and practically

statutes. That is, to see what was the common law in the case supposed, so as
to see what is the mischief that the statute is designed to meet; 7.e., some
deficiency or difficulty in the common law in the cases provided for. And
so as to any special or peculiar Jaw, recognised by the common law; for the
very reason that it supplements, so to speak, some defect in the common
law in special or peculiar cases, the common law being for ordinary times
and ordinary cases, the peculiar law for extraordinary timesand cases. And
this deficiency will be either in the provision for, or definition of offences,
or in the manner of proof and mode of trial or procedure, or in the penal-
ties awarded. In all these respects martial law differs entirely from com-
mon law, being based upon wholly opposite principles.

(a) As to how far offences of this nature (riots, &c.) may be suppressed
and punished by the common law, it seems clear that every sheriff and also
every peace officer may and ought to do all that in them lies towards the
suppression of a riot, and may command all other persons to assist them
therein : and it is certain that any private person may lawfully do so; and
private persons may arm themselves in order to suppress a riot, and may
make use of arms in the suppression of it, if there be a necessity for their
so doing. However, it seems eatremely hazardous for private persons to
proceed to these extremities, and it seems no way safe for them to go so
far in common cases, lest, under the pretence of keeping the peace, they
cause a more enormous breach of it, and therefore such violent methods
seem only proper against such riots in a war or rebellion, for the suppression
of which no remedies can be too strong or severe. (Hawkins’ Pleas, Crown,
ch. 65.) And however the Riot Act 1 George [. ¢. 5, making rioters felons,
aids the common law, in this respect, it still leaves it utterly ineffective to
deal with imminent peril of a formidable insurrection on the point of
breaking out, and which if it once becomes general must be fatal.
( 24 )

the common law fails, in presence of a really formidable
public peril, unless supported by a great military force.

The difficulty (a) which besets the exercise of the un-
doubted common law right and duty of suppressing actual
riot, and the evils which result from the difficulty of the
common law are well illustrated in the history of the riots
which endangered London (0) in the last century, and have
endangered Bristol and Birmingham in our own times.
The exigency is the sudden break out of an insurrection
among a numerous and formidable class, which cannot be.
suppressed by ordinary means and by the ordinary authori-
ties ; the great difficulty being, either the responsibility
imposed by the common law on those who used mili-
tary force ; or, in a colony, the want of it.

The difficulty, at common law, was, that the magis-

(a) A reluctance, rather inexcusable than unaccountable, had enervated
the arm of government, and prevented the due employment of the military
during the progress of these disgraceful disturbances. The former slight
attempts to restrain the rioters only served to make the magistracy ridicu-
lous, and to impart to the mob the hardihood arising from impunity. A
general supineness seemed to pervade every department, no specific orders
were issued, and without them no justice of the peace would venture to
exercise the authority confided to him by the Riot Act. The case of a Sur-
rey magistrate, who was tried on a capital indictment for such an execution,
and those who obeyed his order were prosecuted, was not forgotten. In
this emergency, a Privy Council was convened, insurrection still pre-
vailed : nor was anything decisive or effectual suggested. The Council had
met, when the King anxiously demanded if no measure could be recom-
mended? The Attorney-General answered that he knew but of one, that
of declaring the tumult rebellious, and authorizing the military to act when
necessity required. Although the magistrates did not attend, the King
desired him to make out the order, which he did, and a proclamation was
drawn up, and orders from the Adjutant-General’s office issued accordingly.
(Adolphus’ Hist. Eng., vol. 8, p. 250.)

(6) Thus Mr. Adolphus states that the Lord Mayor might, with the
slightest exertion, have arrested the tumult in its infancy, but then it was
allowed, through the hesitation above alluded to, or caused by the sense of
responsibility, to go to a dangerous height. The magistrates declared that no
civil force could quell so large and tumultuous a mob, and they hesitated
to authorize the military to act. The military, when at last ordered
to act, as they actually were, not only attacked the mob when en-
gaged in actually breaking into and burning houses, but when they were
( 25 )

tracy hesitated, at a great personal responsibility, to direct
the military to act, and the military, without order from
the highest authority, hesitated to act, except under the
direction of the magistrates, because at common law, though
a riot and rebellious assembly could be attacked by military
force when engaged in felonious outrage, it was very
perilous thus to attack a riotous mob not actually engaged :
and thus at common law it is hazardous to attempt to meet
the mischief in any way in which it could be effectually
met, by attacking the people before they gained such a
head,or had gone to such a pitch of violence; and the remedy,
therefore, was under martial law, to treat all as rebels.

On that occasion (a) the law was clearly laid down by
Lord Mansfield, who declared the rioters were guilty of
treason, by levying war against the Crown, as well as guilty
of felony, in burning houses, &c., from which it follows that
martial law might have been proclaimed ; and though he
explained the true ground of the proclamation for calling
out the military was, that every man might and ought to
act to suppress a riot, or arrest and, if necessary, kill those
engaged in felony or treason, it will be seen that much
more than this may be necessary, and is involved in mar-
tial law, though there was that exercise of military force
which is included in martial law. :

merely assembled—for instance on Blackfriars Bridge, where they could hardly
have been engaged in felonious violence. The official returns showed above
450 killed and wounded, and Mr. Adolphus says that this account was already
defective, as many dead and wounded were removed by their friends.

(a) It is to be observed, however, that on that occasion there was not so
much an insurrection with any general object, as a continuance of riotous
and tumultuous assemblages and acts of outrage, with no definite or
common objects; each band of rioters being sacking and burning for them-
selves, and totally indifferent whose property they rifled or destroyed,
doing it more in the wantonness of lawlessness than with an object in view,
as to extirpate a class, to subvert the existing order of things, to overawe
the Government, or the like. Moreover, as is always likely to be the case
in this country, there was an ample military force, and the rioters, after all,
were not numerous. That, therefore, though an illustration of the exigency
met by martial law in one phase of it, was its least formidable phase.
( 26 )

The scope of martial law is not merely the suppression
of actual insurrection or resistance of outward acts of rebel-
lion, for that, as it has been shown, may be effected without
martial law, as on the occasion of the Lord George Gordon
riots, where the military were called out and attacked the
rioters in the streets, without the declaration of martial law,
in accordance with the opinion of the highest authorities (a).

The scope of martial law, therefore, it is obvious, must
be sonfething different from the mere resistance of actual
outrage, and the suppression of actual insurrection (0),

(a) Lord Mansfield on that occasion was careful to show that it was not
martial law; though he also showed incidentally that martial Jaw might
have been proclaimed, because there was a levying of war, which amounted
to high treason. But besides this, the insurgents, he said, were guilty of
felony, by burning private property, demolishing houses, &c. This was
the true ground of the proclamation for calling out the military. Every
man might, and if required by a magistrate must, interfere to suppress a
riot, much more to prevent acts of felony, treason, and rebellion, What
an individual might do was lawful for any number of persons assembled for
a lawful purpose. Constables were particularly charged to apprehend
persons engaged in breaches of the peace, felony, or treason, and in case of
resistance, to attack, wound, and even kill,'those who continued to resist.
A private man, secing another commit an unlawful act, might apprehend
the offender, and by force compel submission, not to the assailant but the
law; and so might any number of men assembled or called together for the
purpose. This doctrine he stated to be the true foundation for calling in
the military to assist in quelling the late riots. Consequently, he said, the

” metropolis was not under martial law. (Adolphus’ History of England,
vol. 3. p. 254.) The resistance and suppression, therefore, of actual riot or
felonious outrage is not martial law, and does not require it.

(6) There are things infinitely more dangerous than mere actual tumult,
or acts of outrage. These may be without concert or confederacy—without
premeditation or preparation. The mere case of aggregation of rioters,
with no common intent other than the instinct of plunder and lawlessness,
acting for no definite end, and sustained by no strong feeling of sympathy,
no common bond of union, is very easily dealt with, in the midst of a
large and loyal community. But very different is the condition of a
minority, especially of a small minority, of the population, in the midst of
a large and numerous disaffected class, bound together by some common
bond of union—of race, of colour, or of creed—animated by the same feel-
ings and sympathies, and perhaps by a common animosity to the smaller
and weaker body, and moved by some tremendous passion or craving for
some object, the possession of land, or something else, which requires the
( 27 )

which does not require martial law, but allows of any degree
of armed force. The scope of martial law is rather danger
than actual outbreak ; it is prevention rather than resist-
ance ; it is anticipation of apprehended insurrection ; it is
the mode of dealing with a state of rebellion rather than
its mere actual outbreak, although that state may be
declared by some outward acts and outrages.

The common law, indeed (a), provided ample powers for
the resistance of actual outrage, for it recognized the great
natural right of self-defence, to the extent even of inflicting
death, if necessary, to prevent the actual impending acts of
felonious outrage ; and this was aided by statute, which in
the Riot Act (6) made mere persistence in riot felonious.
But then this common law power was limited, as the right
of self-defence is rigidly restricted, to the resistance of pre-
sent or actually impending acts of felonious outrage.

Any person, whether soldier or citizen (c), may lawfully

expulsion or massacre of the smaller but wealthier class—there may be thus
a bond of instinctive combination, even independently of any actual con-
spiracy, and laying the strongest foundation for it.

(a) Thus in 1801, Mr. Law, afterwards Lord Ellenborough, gave it as his
opinion that any of Her Majesty’s subjects may arm themselves and use
ordinary means of force to suppress riot and disturbance, and the chief
justice, Sir J. Mansfield, laid it down that a soldier is as much bound to
prevent a felony as any other citizen. In 1780, the forgetting of this led
to alarming results, and soldiers stood by with arms in their hands, and
saw felonies committed, houses burned or pulled down before their eyes, by
persons whom they might lawfully have put to death, if they could not
otherwise have prevented them. (Simmons on Court Martial. p. 538.)

(b) The Riot Act. 1 Geo. ch. ii, ¢. 5, provides that those who resist the
proclamation or remain assembled in law afterwards shall be guilty of
felony, otherwise mere rioting would only be a misdemeanour. The com-
mon law remains in full force, supposing the proclamation not read, and
after it is read, and preventing its being read is felony.

(ec) By the common law every private person may lawfully endeavour on
his own authority, without any comment or sanction of a magistrate, to
suppress a riot by every means in his power. He may disperse or assist in
dispersing those who are assembled ; he may stay those who are engaged
in it from executing their purpose ; he may stop others whom he may see
coming up from joining the rest. If the riot is dangerous, he may arm
himself against evil doers (that is, to resist their attacks, not to assail
( 28)

resist or disperse an illegal or riotous assemblage, and what-
ever is done by him honestly for that purpose will be jus-
tified by the law. But then that only applies, it is obvious,
to the resistance or suppression of actual assemblages, and
further, does not authorize the use of armed force or the
infliction of death, unless in the resistance or arrest of
felons.

The common law (a) not only gives the most ample
power even to common magistrates, and all that are in
authority, to suppress actual riot, but imposes upon them a
very strict legal duty to do so, and renders them criminally
liable if they do not do so, and authorizes any amount of
force, even military force, necessary to effect the object ;
but, then, as it equally leaves them criminally liable if they
kill any one not guilty of participation in the riot, their
position is one of great difficulty.

them with deadly weapons unless they are in the act of felonious outrage) ;
and if the occasion demands immediate action, it is the duty of every sub-
ject to act for himself in suppressing riotous and tumultuous assemblages.
And he may be assured that whatever is done by him honestly in the exe-
cution of that object, will be justified by the common law. Nor is there
any distinction in this respect between soldiers and private individuals.
(Lord Chief Justice Tindal cited Simmons on Court Martial, 550.)

(a) Any riotous or unlawful assembly may be thus suppressed, and in
the absence of any definition of what shall be a riot within the meaning
of that enactment, the common law definition of a riot must be resorted
to; and in such case, if any one of Her Majesty’s subjects be terrified, this
is a cause of terror and alarm to substantiate that part of the charge
(Rex. v. Langford, 1 Car. & M.602—Patteson.) And so held by the Judges.
Any assembly of persons, attended with circumstances calculated to
exeite alarm, is an unlawful assembly. (Reg. v. Neale, 9 Car. & P. 431—
Littledale.) It is not only lawful for magistrates to disperse an unlawfal
assembly, even when no riot has occurred ; but if they do not do so, and
are guilty of criminal negligence in not putting down any unlawful assem-
bly, they are liable to be prosecuted for a breach of their duty. (Reg. v.
Neale, 9 Car. & P. 431—Littledale.) The mode of dispersing an un-
lawful assembly may be very different according to the circumstances
attending it in each partieular case. An unlawful assembly may be so
far verging towards a riot, that it may be the bounden duty of the magis-
trates to take immediate steps to disperse the assembly ; and there may be
cases where the magistrates will be bound to use force to disperse an
unlawful assembly. 7b, A justice called upon to suppress a riot, is required
( 29 )

But at common law all that the magistrate can do is to
suppress an actual riot, and to swearin special constables,
upon representation on oath of an expected riot, to be ready
so to resist the rioters ; he can take no further measures by
way of prevention ; and although he may by law give fire-
arms to those whom he thus calls in to assist in suppressing
an actual riot, it is deemed imprudent to do so.

by law to do all he knows to be in his power that can reasonably be expec-
ted from a man of honesty and of ordinary prudence, firmness, and activity,
under the circumstances. Mere honesty of intention is no defence, if he
fails in his duty. (Ree. v. Pinney, 3 B. & Adol. 946.) Nor will it be a
defence that he acted upon the best professional advice that could be ob-
tained, on legal and military points, if his conduct has been faulty in point of
law. Jb. Magistrates are not criminally answerable for not having called out
special constables, and vompelled them to act, unless it be proved that
information was laid before them, on oath of a riot, &c., having occurred
or been expected. Jd. A magistrate is not chargeable with neglect of
duty for not having called out the posse comitatus in case of a riot, if he
has given the king’s subjects reasonable and timely warning to come
to his assistance. Jo. The general rules of law require of magistrates,
at the time of a riot, that they should keep the peace, and restrain
the rioters, and pursue and take them ; and to enable them to do this, they
may call on all the king’s subjects to assist them ; and all the king’s sub-
jects are bound to do so, upon reasonable warning. In point of law, a
magistrate would be justified in givipg fire-arms to those who thus come to
assist him, but it would be imprudent in him to do so (Rex v. Pinney, 5
C. & P. 254.—At bar in K. B.). Constables and even private individuals
are justified in dispersing the offenders, and, if they cannot otherwise
succeed in doing so, they may use force (Rea v. Furzey, 6 C. & P.—Gaselee
& Parke). Without any proclamation at all, if a meeting is illegal, a
party who attends it, knowing it to be so, is guilty of an offence. Jb. A
meeting called “to adopt preparatory measures for holding a national con-
vention” is an illegal meeting. Jb. It is not left to the choice or will of
the subject, to attend or not, at thecall of the magistrates, but every man
is bound, when called upon, to yield aready and zealous obedience to the
call of the magistrate, and to do his utmost in assisting to suppress a
tumultuous assemblage. (Littledale, J. re Neale. 9 C. and P. 441.) It has
been held that private persons may arm themselves to suppress a riot, and
it seems to follow that they may make use of armsif necessary ; however, it
may be very hazardous for private persons to proceed to this extreme, and
such violent neans seem only proper against such riots as savour of re-
bellion. (Russell on Crimes, 401.) And all this applies only to actual riot
or rebellion.
( 30 )

From this it will be seen (a) that by the law of the land
soldiers, as well as citizens, may assist in the suppression of
riot, and may interfere without any warrant or authority
of magistrates for the prevention of outrage, and may
put to death persons in the actual commission of felony or
burning houses, &c , if they are otherwise unable to restrain
them, But then this applies only to the actual commis-
sion of felonies, and, moreover (b), the great difficulty at
the common Jaw is to hit the precise line between justifica-
tion and excess.

So again, at common law—if it is possible to’arrest those
who are in apparent rebellion, they must be arrested and
tried at common law, and it is neither lawful to kill them
(unless absolutely necessary to prevent a present act of
felony), nor summarily to punish them. But the process
of common Jaw is far too dilatory and too doubtful, by
reason of the strict rules of procedure, and especially of proof,
so that criminal prosecutions have little deterrent effect,
and, at all events, none sufficiently prompt for a great
public emergency. The rules of common law are all
based upon the principle of providing every possible secu-
rity for the accused ; but in a state of rebellion the public
safety is the paramount object, and those who, by engaging
in rebellion or taking no active steps to suppress it,
are answerable for it, cannot justly complain that they

(a) Simmons on Court Martial, p. 542.

(6) “On the one hand, if he exceeds his power and occasions death, or
other injury, he is liable to be proceeded against by indictment for murder
or manslaughter; and, on the other hand, if he neglects his duty and does
not do enough, he is liable to be proceeded against as culpably neglectful
of his duty. He is bound to hit the exact line between excess and doing .
what is different. There is only one precise line, and how difficult it is to
hit it! Still, in point of law, he is bound to hit it.” (Tindal, C. J. ; Sim-
mons on Court Martial, p. 544). That is, at common law. This shews the
difficulty which is met by martial law, and met by it in this way ; that as
it is the suspension of the ordinary law of the land, the parties acting under
il are relieved from the dilemma, and are not bound to “ hit the exact
line.”
( 81 )

are deprived by martial law of the benefits of common law,
which they have thus caused to be suspended.

That, in times of rebellion or civil commotion, there is an
urgent necessity for some such summary power as is implied
under martial law (a), is manifest from the very nature of
the common law itself, especially with reference to political
offences or offences against the government, such as sedi-
tion or rebellion, because it is extremely strict in its
definitions of offences, and in its rules of proceeding,
especially as to pleadings and proof, and is, moreover,
exceedingly dilatory in its proceedings.

At common law the power of Governors or of Sec-
retaries of State (6) is so strictly limited and restrained

(a) A summary power of arrest, which is not possessed by the govern-
ment at common law, even in case of sedition or treason, without a sworn
information of a specific offence, and which is virtually necessary for the
suppression of rebellion, may, indeed, be conferred by and the mere suspen-
sion of the Habeas Corpus Act, and this remedy will probably always
suffice for this country or Ireland ; but it may be not only far from efficient,
but worse than useless, ina colony or dependency (where, by the bye, the
Habeas Corpus Act would not apply), for the mere arrest of ringleaders
might only irritate and excite to insurrection, where a large native popula-
tion were ripe for rebellion.

(6) It is only an exception to the general rule that a Secretary of State or
Governor is allowed to issue a warrant to arrest even for treason or sedition,
and he must do it upon a sworn information of sedition, or treason actually
committed ; or a seditious or treasonable conspiracy in existence, or some
seditious or treasonable act, as, for instance, a seditious document pub-
lished. He eannot even issue, on sworn information, a general warrant to
search for snch mischievous papers as there is reason to believe are about
to be published, so to arrest the parties, and thus prevent the publication,
even although the consequences of publication might be a dangerous
insurrection. That is, he cannot do so at common law, and if he does do
so he is liable legally. This was the point established in the celebrated

ease of general warrants (Zntick v. Lord Carrington, 8 Wilson’s Rep. 288),
where it was laid down that all that can be done is to arrest a man for a
seditious paper actually published, or some seditious or treasonable act
already done. But then the mischief may be done. The very argument
was then urged, that it is better for the government and the public to seize
the seditious paper before it is published ; but it was said by the court that
at common law it could not be done, but would require (7. e. in time of
peace) an Act of Parliament. Under martial law, of course, it could be
done, and the preparing it or concealing it would be capital offences.
( 32)

by the necessity for making out a strictly legal justification
for their acts, that they can do but little to protect the
public and prevent mischief, as they must wait not only
until some criminal act is done, but until they can get
sworn proof and strictly legal evidence of it; and thus,
though a Governor or Secretary of State may at common
law arrest for treason or sedition, he can only do so, apart
from special or statutable power, on sworn information that
it has actually been committed, and cannot even issue
general warrants to search for seditious papers, and take up
any person in whose possession they are found.

Even an Act to suspend the Habeas Corpus Act, though
it may enable the Crown to take up and detain persons on
suspicion of treason or sedition, does no more (@) ; and
although in some circumstances that might be sufficient to
paralyze a conspiracy and prevent a rebellion, in other cir-
cumstances it might simply precipitate it and exasperate a
great part of the population into a sanguinary insur-
rection.

When a criminal prosecution is commenced (b) the com-

(a) It would entirely depend upon circumstances whether this measure
might be salutary or sanguinary. If the rebellious spirit were not diffused
over a large and concentrated mass of the population, and the outbreak
depended upon plans and leaders, the arrest of the leaders would paralyse
the conspiracy and prevent a rebellion, as in the case of the Fenian con-
spiracy in Ireland in 1865. But if the case is the far more dangerous
case of a widespread feeling of disaffection and spirit of insurrection,
diffused through a dense mass of the population, united by sympathies of
caste, of class, of colour, or of creed, as is likely to be the case in a foreign
dependency, the arrest of a ringleader might be the spark to kindle an
insurrection.

(b) The fundamental maxim of the common law, especially in criminal
cases, is, that a man can only be convicted secundum allegata et probata,
and that is the utmost strictness in stating the charge, and in proving it
by strict legal evidence. The maxims of the law are, that “it is for the
prosecution to make out his case,” that the “prisoner is entitled to the
benefit of any doubt,” and that “it is better that twelve guilty men should
escape than one innocent man should suffer” (Hale’s Pleas Crown). This
is all right enough in ordinary trials, but in cases of public peril or
emergency the contrary is the case; there, the security of the individual
( 33 )

mon law, every possible obstacle is interposed in its way by
the strict rules of pleading, and of jury, and of trial;
all the maxims of the common law are in favour of the
accused ; he must be convicted of some specific offence, by
the strict rules of legal proof, and by the wnanimous ver-
dict of twelve men.

The common law (a), being based upon the theory of
peace and tranquillity, and the supremacy of the law, and
being provided for ordinary times and ordinary circum-
stances, makes no provisions (beyond recognizing the
natural right of self-defence) for extraordinary times and
circumstances, when, de facto, the civil power and the supe-
riority of law are in abeyance, and all its rules are framed
for the purpose of providing every possible security for the
subject who is prosecuted or accused, so that he cannot even
be arrested without a sworn charge of a specific offence,
and not upon general suspicion, however well warranted.

The common law indeed (6) admits the theory of proba-

must give way to the safety of the state. In cases of impressment, for
instance, the most cruel and arbitrary course is allowed by Jaw, on the
ground of public necessity.

(a) Thus, in order to warrant the arrest of a man upon a charge of
treason or sedition, there must be a sworn information of some acts of
sedition or treason; and even a Secretary of State, though he may issue
warrants in cases of treason or sedition, cannot even on a sworn information
issue a general warrant to search for treasonable or seditious papers, and
to arrest those in whose possession they are found. This was decided
differently, indeed, at different times of our legal history, but this is the
latest and present state of the law, (See Entick v. Lord Carrington, 2 Wils,
reports, 275, and vide Amos on Constitutional Law, book i.) To authorize
such measures of precaution or prevention, there must be an act of parlia-
ment to suspend the Habeas Corpus Act.

(6) As it seldom happens that absolute certainty can be obtained in
human affairs, therefore reason and public utility require that judges and all
mankind, in forming their opinions of the truth of facts, should be regu.
lated by the’superior number of probabilities on the one side or the other,
(Lord Mansfield, in the Douglas case, cited in4 B. & Ald., 122.) In the
highest crime known to the law, treason, you act upon presumption ;
on proof of rebellion, or the endeavour to excite rebellion, you presume an
intent to kill the king. In highway robbery, if a person is found in pos-
session of the goods recently after the crime, you presume the possessor guilty»

D
( 34 )

bility, in legal proof; but then it requires strict legal
proof of the facts or circumstances whence the inferences
of probability are to be drawn; and, next, there is no ques-
tion upon which human opinions may so differ as upon the
degree of weight, force, or effect to be given to circum-
stances as evidence, or as to the inferences to be drawn from
facts and circumstances proved ; so that, unless the proof
happens to be overwhelming, it is difficult, especially in
political offences, to get a conviction in a criminal case.

And not only must the crime be charged and proved with |
legal precision, but even after conviction; and though the
guilt of the person is plain and clear, he may escape through
some mere technical, or, at least, strictly legal objection,
altogether beside the real rights of the case—a miscarriage
of justice of little consequence in times of perfect peace,
but perhaps pregnant with disastrous consequences in times
of disturbance (a).

The offences (6) most dangerous to the public peace in a

unless he can account for the possession. In the case of a libel, which
is charged to be written with a particular intent, if the libel is calculated
to produce the effect charged to be intended, you presume the intent
Ibid. 123. Crimes of the highest nature, more especially cases of
murder, are established upon presumptive evidence only, and the well-
being and security of society must depend upon receiving of such evidence
Tbid., 140. Still it is required that the facts be clearly and conclusively
proved, and by the best evidence.

(a) Thus, in the case of Horne Tooke, it was said by Lord Mansfield,
“ An indictment or information must charge what in law constitutes the
crime with such certainty as must be proved, though that certainty may
arise from necessary inference. Whatever the degree of guilt may be—
however strongly it may be proved—yet if the defendant is entitled to a
legal advantage, even from a literal flaw, God forbid that he should not have
the benefit of it.” (Re Horne, Cowper’s rep. 675.) In that case, however,
it turned out that the literal flaw was not enough, even on the strictest
construction, to defeat the prosecution. And upon error to the House of
Lords the decision was affirmed, but only because the indictment sufficiently
adhered to technical rules.

(b) By thecommon law, the most atrocious seditious proclamations
or publications, having a natural or indirect tendency to incite to felonious
outrages, by inflaming the masses of the lower orders, are mere misde-
meanours, and the process of prosecution by indictment or information is
( 35)

period of disaffection or disturbance, sedition or conspiracy,
being in ordinary times of no great mischief, are by the
common law treated as mere misdemeanours, punishable
only by fine and imprisonment; and, moreover, the pro-
ceedings are formal and dilatory, and often full of difficulty,
so that terrible disasters might occur before an example
could be made, and the law vindicated.

And it unfortunately happens (a) that the very offence
which is most mischievous and formidable in times of
public peril, that of conspiracy, is the most beset with
legal and technical difficulty, insomuch as it is probably the
most difficult offence, to lay and to prove, known to our law.
This arises from the secrecy which, of course, attends any
unlawful conspiracy, and attends it in the proportion of
its diffusion, and therefore of its danger. It is hardly
possible in such cases to have the requisite degree of legal
precision in pleading and in proof.

And even in the case of high treason (0), the most for-

necessarily slow, and the punishment comparatively slight—perhaps a year’s
imprisonment—yet such a publication might lead to murder or to massacre ;
and, though the author is morally guilty of those crimes, he is not, according
to the common law, legally guilty. By the common law, therefore, he can
only be indicted for sedition, and sentenced to a fine and imprisonment,
and this, long after the murder or massacre, unless, indeed, by strict legal
proof, his seditious publication can be connected with the particular murder
or massacre, so as to render him liable for it.

(a) It is true, that, on this very account, the law holds that in conspiracy
the fact of conspiring need not be proved by express evidence, but may be
collected from other circumstances (King v. Parsons, 1 Wm., Blackstone’s
Rep. 392); so it is of any other offence, which may be proved by
circumstantial or presumptive evidence; but then this species of evidence
opens the very widest door to difference of opinion among the jury, and
greatly increases the chance of an acquittal. This kind of evidence,
especially in political cases, hardly ever satisfies lawyers, and seldom satisfies
twelve laymen. Hither the lawyers or the laymen are pretty sure to pick
a hole in it, and practically, as every lawyer knows, it the most difficult
thing in the world to convict of a political conspiracy, or a conspiracy to
excite to sedition or insurrection, for there is the question of intention ; and
even if the jury are satisfied of the fact, they may differ or doubt as to the
intention, which is the most difficult to prove.

(+) Thus, in the case of Tord George Gordon, who was indicted for

D2
( 36 )

midable and criminal species of conspiracy, by reason of the
strictness of proof which is required, the prosecution is in
our own time almost certain to fail, either on the point of
the conspiracy or the intention.

-There is also another defect in the law (a) as to the
liability of parties not actually present at the time of the
commission of a crime, of which they may be the real
inciters. Though all who are present, aiding and abetting
the commission of a felony, are guilty as principals (0), yet
although an act be committed in pursuance of a previously
preconcerted plan between the parties, those who are not
present are only accessories; although in cases of murder
they are equally liable to the capital penalty, yet then it
must be shown that they previously procured or ordered the
actual perpetrators to commit the particular outrage in ques-
tion (c).

treason in levying war against the King. The case on the part of the
prosecution was that the prisoner, by assembling a great multitude of
people, and encouraging them to destroy the two houses of parliament, and
commit different acts of violence, particularly burning Roman Catholic
chapels, had endeavoured to compel the repeal of an act of parliament,
although the Court (on a trialat bar), directed the jury that it was their
unanimous opinion an attempt by intimidation and violence, to force the
repeal of a law, was a levying war against against the King. and high
treason ; and although the intimidation was proved beyond a doubt, and
the prisoner’s actual presence and encouragement, and even direct words of
incitement, “that the Scotch had no redress until they pulled down the
mass-houses,” yet, as the jury were directed, that if they were not fully
satisfied they should acquit the prisoner, they did so. (King v. Lord George
Gordon, 2 Douglas, 592.)

(a) Rex. v. Gordon, Leach, 515; Rex. v. Lord Sanchar, Coke, 189.

(b) R. Howell, 9 C. & P. 487; R. Manners, 2 0. & P. 801.

(c) Vide Foster's Crown Law, 125. It is not enough, therefore, at
common law to prove that the prisoner zz fact caused the murder or
massacre, or the act of rebellion. It must be shown that he intended to do
so. It is not enough to show that he actually incited to murder, or rebellion
likely to lead to murder. It must appear, if he ig indicted for the murder,
or rebellion, or treason, that he incited to, or conspired to, effect the
particular murder, or act of outrage or rebellion, for which he ig indicted;
and as this may not admit of proof, he may very likely escape at common
law. In martial law he cannot, for two reasons: first, because the offence
( 37 )

There is indeed one case (a), that of high treason, in
which the common law is more effective, for in treason all
who are implicated are principals ; and though a bare con-
spiracy to levy war is not treason unless it be actually levied,
yet there may be a levying of war, although there is no actual
fighting, and the measures taken for that end are all trea-
sonable (6), and the conspiracy may be proved by the
acts of the different prisoners, all in furtherance of the
common design to levy war, that is, raising an insurrection
for a general object (c).

All that can be done at common law (d), when war has
actually been levied against the Crown, is to suppress
actual insurrection, and to arrest and indict for high
treason ; and when war has not been actually levied (e),

of sedition, of which he can easily be convicted, is capital, and, next,
because the strict legal rules of proof are not applicable, so that he may,
possibly, be convicted of murder.

(a) 2 Hawkins’ Pleas (Crown), B. 2, ¢. 29.

(6) 1 Hawkins’ Pleas (Crown), B. 1, 117, 127.

(c) The meeting together and consulting the means to levy war
or printing treasonable papers, as, that the people ought to take the
government into their own hands, may be acts of treason. Jbid. To con-
stitute the crime of levying war, there must be an insurrection, there
must be force accompanying it, and it must be for a general object; and if
@ person is leader of an armed body, who enter a town and attack the
military, this is that crime (R. Frost, 9 C. & P, 129), though it would be
otherwise if it were only to release prisoners, &c. In a case of treason or
conspiracy, the prosecution may either prove the conspiracy, which renders
the acts of the conspirators admissible in evidence, or he may prove the
acts of the different conspirators, and so prove the conspiracy. Ibid,

(d) As in the case of Lord George Gordon, where, however, though the
insurrection was suppressed by armed force, the man who incited it escaped
on prosecution (vide R. v. Gordon, 2 Douglas).

(e) As in the case of Hunt, who assembled 60,000 people in military
array, and with sticks and clubs, and with seditious ensigns, &c.; but as
they did not actually commence insurrection, or commit any acts of
outrage, all that could be done was to disperse them as rioters, and indict
him and the other ringleaders as rioters (The King v. Hunt, 3 B. & Ald.
567). The millions there were loyal, and there were many more troops in
the country, and the mob had no arms; but supposing it had been the
other way, that there were few troops, and that there was general disaffec-
tion among the great body of the population, and acts of outrage showing
( 38 )

hough large numbers of people have been assembled,
even in military array, with the most impending danger of
actual insurrection, to disperse the assembly and arrest
and indict for sedition. And though these means may be
adequate where the great bulk of the community are loyal,
as in this country, it is otherwise in our foreign depen-
dencies, where the great body of the people are alien to us
as a race, and may often be disaffected.

One great incident of common law is, that a party must be
somehow directly connected by strict proof with the par-
ticular crime with which he is charged. It is not sufficient
that he is fixed with it by fair inference, nor by legal evi-
dence, with the intention of exciting some such acts; thus,
although a man has published a seditious proclamation
calculated to stir up sedition and rebellion, he cannot be
fixed with a particular act of rebellion, unless his publica-
tion is connected with it (a).

So infirm is the common law in this respect (b) that
even the administration by an associated body of men of
an oath to any purpose purporting to bind him not to
reveal or discover such unlawful confederation or conspi-
racy, nor any illegal act done by them, is at common law,
at the utmost, even though the object is sedition, a mere

an impending insurrection; there, dispersion of the assembly could only
have aggravated the evil, unless all attempts to get up insurrection were
sternly suppressed by miltary measures, 2. c. by martial law.

(a) It is indeed a clear legal principle, that a person who publishes
that which is seditious, must be taken to have intended that which it is
necessarily and obviously calculated to effect, unless he can shew the con-
trary, and the onus of proving the contrary is upon him (R. v. Harvey, 2
B. & C. 257). And as its contents were likely to excite sedition—that is,
sedition in general—he must be presumed to have intended it ; and so he
may be convicted of a seditious publication (2. v. Burdett, 6 B. & Ald.
45), but not of any particular acts of rebellion or sedition, although it may
be plain that those acts were in fact incited by his publications, unless it
can be shewn that he intended those particular acts; and thus at common
law the crafty and cunning criminal may escape, and the mere tools in
murder or in massacre may alone be convicted.

(2) It 8 made felony in England by a statute, 37 Geo. 3, c, 123 (Rv.
March, 13 East. 157).
( 39)

misdemeanour, and it required a special statute (a) to make
drilling criminal, without proof of an intent that the object
is to stir up mutiny and sedition (6); and it is doubtful
whether the preparation of a seditious publication is any
offence at all (c), and, at all events, its publication is only
a misdemeanour, and so (d) even of a conspiracy to excite
discontent and disaffection.

And in the proof of the offence of conspiracy (e) there

(a) The 60 Geo. IIT., c. 8, under which a person can be indicted ; first, for
that he unlawfully was present and did attend a certain meeting and
assembly dangerous to the peace and security of Her Majesty’s liege sub-
jects, and then and there prohibited by law, for the purpose of training and
drilling to the practice of military exercises, movements and evolutions,
divers persons, to wit, &c., and then and there did train and drill to the
practice of military exercises, movements, and evolutions the said persons,
without any lawful authority from Her Majesty or the Lieutenant, with
the bad intent, the act of drilling would be criminal at common law, as an
overt act of a treasonable and seditious conspiracy. (Gogarty v. The Queen,
3 Cox’s Crim. Cas, 306.)

(0) R. v. Hunt, 3B. & Ald. 566, ibid 444.

(c) &. v. Burdett, 4B. & Ald. 314.

(d) R. v. Burdett, 5 B. & Ald. 95, ibid 717.

(e) Upon an indictment for conspiracy, general evidence of the con-
spiracy charged may he received in the first instance, although it cannot
affect the particular defendant, unless afterwards brought home to him or to
an agent employed by him (The Queen’s Case, 2B. & B. 312). Onan
indictment for conspiring and unlawfully meeting for the purpose of
exciting discontent and disaffection :—Held, first, that resolutions passed
at a former meeting, in another place, and at which one of the defendants
presided, the professed object of which meeting was to fix the meeting
mentioned in the indictment, were admissible in evidence, to shew the
intention of such defendant in assembling and attending the meeting in
question, at which he also presided : secondly, that a copy of these resolu-
tions, delivered by such defendant to a witness at the time of the former
meeting, as the resolutions then intended to be proposed, and which corre-
sponded with those which the witness had heard read from a written paper,
is admissible without producing the original: thirdly, that large bodies of
men having come to the latter meeting from a distance, marching in
regular order, it was admissible in evidence to shew the character and
intention of the meeting, that within two days of the same great numbers
of men were seen training and drilling before daybreak, at a place from
which one of these bodies had come to the meeting, and that, on their
discovering the persons who saw them, they ill-treated them, and forced
one of them to take an oath never to be a King’s man again: fourthly, that
( 40 )

is, as is well known, the greatest possible difficulty, partly
from the secrecy incident to conspiracy (unless an accom-
plice betrays his associates), and partly from the operation
of the strict legal rules of proof ; although, even by the strict
rules of our common law, the conspiracy may be proved by
circumstances, and then the acts and words of some of
those implicated in furtherance of it may be evidence
against others.

Thus even at common law (a), parties present at an
unlawful assembly, with a common design to resist
authority and commit a breach of the peace, at all events
felonious, will be jointly guilty of a murder committed by
some of them in the presence of the others, even although
they did not actually intend it, a fortiort if they
actually approved, and aided and abetted it. But the
difficulty, at common law, is in proving the design against
the ringleaders, who of course will take care to keep their
connection with it secret, and the trial, at common law,
will be dilatory, and require strict legal proof.

it was admissible in evidence, for the same purpose, to shew that another
body of men, in their progress to the meeting, on passing the house of one
of the persons who had been so ill-treated, expressed their disapprobation
at his conduct by hissing, &c.: fifthly, parol evidence of inscriptions and
devices on banners and flags displayed at a meeting, is admissible without
producing the originals (2. v. Hunt, 3 B. & Ald. 566).

(a) Where persons combine to stand by one another in a breach of the
peace, with a general resolution to resist all opposers, and in the execution
of their design a murder is committed, all of the company are equally prin-
cipals in the murder, though at the time of the fact some of them were at
such a distance as to be out of view. (Reg. v. Howell, 9 Car. & P. 437—
Littledale.) If, in a case of feloniously demolishing a house by rioters, it
appears that some of the prisoners set fire to the house itself, and that others
were on the outside of the house, it will be for the jury to say, whether the
Jatter were not encouraging and taking part in a general design of destroy-
ing the house and furniture; and, if so, the jury ought to convict them.
(Reg. v. Harris, 1 Car. & M. 661—Tindal, Parke, and Rolfe.) If a house be
demolished by rioters by means of fire, one of the rioters who is present
while the fire is burning may be convicted for the felonious demolition,
under stat. 7 & 8 Geo. IV., c. 30, ». 8, although he is not proved to have

been present when the house was originally set on fire. (Reg. v. Simpson,
1 Car. & M. 669—Tindal, C.J.) oe
( 41 )

Again, even at common law (a), a person who influences
others, with a view to incite them to acts of violence, may be
liable for acts of outrage which they afterwards commit, if
these acts can by circumstances be reasonably connected
with the previous incitements, but not otherwise, even
although it may be perfectly plain that they were the
natural consequence of such incitements; and here again
the difficulty will be in strict legal proof,—and even if it
can be obtained, the trial will be too dilatory to secure
the effect of a prompt deterrent example, which may be
necessary to put down a dangerous rebellion.

These are some of the difficulties and deficiencies of the
common law, with reference to the suppression of rebellion.
This difficulty and deficiency of the common law is met
by the prerogative of the Crown for the proclamation of
martial law (0), the effect of which is to extend to all per-
sons in the district proclaimed, and which is thus declared
to be in a state of rebellion or of war,—not merely the regu-
lar authority of military law as exercised in peace, but also
all that military power which is exercised towards an enemy
or armed rebel in time of war.

(a) If persons are assembled together, to the number of three or more,
and speeches are made to those persons to excite and inflame them, with a
view to incite them to acts of violence, and if that same meeting is 80 con-
nected, in point of circumstances, with a subsequent riot, that you cannot
reasonably sever the latter from the incitement that was used, those who
incited are guilty of the riot, although they are not present when it occurs.
(Reg. v. Sharpe, 3 Cox’s Crim. Cas. 288; 12 L. T. 587.—Wilde, C. J.)

(6) The military law, as exercised by the authority of parliament, and
the Mutiny Act annually passed, together with the Articles of War, is not to
be confounded with that different branch of the royal prerogative called
martial law, which is only exercised in the emergency of invasion and in-
surrection or rebellion. (MacArthur on Court Martial, 1.) The authority
of martial law, when it prevails in ita full extent, claims jurisdiction in
summary trials by court martial, not only over all military persons, but it
extends to a great variety of cases not relating to the discipline of the
army, but relating to that state which subsists by military power, as plots
against the sovereign, intelligence to the enemy, and the like, which are
all considered as within the cognizance of military authority. (Ibid. et vide
judgment of Lord Loughborough. Grant v. Gould, 2 Hen. and Black-
( 42 )

Martial law (a) meets the emergency and removes the
difficulty ; because, being based upon necessity, its power is
discretionary, and it allows of summary procedure, even to
executions for any acts in furtherance of the rebellion,
whether or not punishable, or capital, at common law, and
thus, by terror of military executions, it checks and arrests
the rebellion from breaking out into such acts as can be
dealt with at common law.

The legislature have repeatedly (b) in our own time re-
cognised the existence of this great power or prerogative in
the Crown, and this not only indirectly by annual recital
in the Mutiny Act, but directly, and expressly in statutes
framed, either to prevent any liability as to the duration or
existence of the state of rebellion, or to provide an ample and
complete indemnity, or to provide for precautionary mea-
sures without the proclamation of martial law, or for the
exercise of martial law, without waiting for any actual out-
break of rebellion, or continue it after all apparent danger.

stone’s rep. 67.) ‘Martial law is totally different from that which is ad-
ministered by courts martial (¢. c. in ordinary times), but which bears an
analogy to that which formerly existed in this kingdom, and has been ex-
ploded,” that is, in time of peace. Vide ante.

(a) Offences cognizable under martial law are—intelligence with the
enemy or rebel, concealing letters or messages from or relieving an enemy
or rebel, mutinous assemblages, and seditious or mutinous words, conceal-
ing traitorous or mutinous designs, or not endeavouring to suppress them,
or coming to the knowledge of any intended mutiny or rebellion without
giving any notice thereof, &c. (vide MacArthur on Court Martial. vol. i.)
Acts of this kind are capital by law martial, whereas by the common
law they are mere misdemeanours, or not capital. Thus, for instance, al-
though, by the law of England, if a man be adherent to the King’s enemies
in the realm or elsewhere, is made high treason, this must be by some
overt act (4 Blackstone’s Comm. vol. iv.); and by the common law, giving
intelligence to, or relieving an enemy, is only considered to bein the same
light with that of an enemy when in actual rebellion in the realm (vide
MacArthur on Court Martial). The Petition of Right recognises the sum-
mary procedure by law martial, in time of war.

(6) As the 48 Geo. III, cv. 117, the act (1803) for the suppression of re-
bellion in Ireland, reciting that a treasonable and rebellious spirit of
insurrection then existed, which had broken out into open act of rebellion,
( 43)

Thus the act for the suppression of the Irish rebellion (a)
authorized the Lord Lieutenant to put in force martial law
in any part of the kingdom, without proclaiming martial
law, and whether or not the courts were open, so that it
might be doubtful whether martial law could be proclaimed ;
and it expressly recognised and preserved the power of
the Crown, apart from statute, to proclaim martial law.

That act expressly recognised the right of the Crown in
Ireland to proclaim martial law in case of rebellion, in any
district covered by the rebellion, and was only designed to
give power to act upon martial law in any part of the.
country where it wasdeemed necessary, whether or not it could
there be lawfully proclaimed, and whether or not that part
of the country was covered by the rebellion. And it plainly

and that the persons who might be guilty of acts of outrage in furtherance
of such rebellion, who may be taken by the forces employed to suppress it,
might avail themselves of the common course of law to evade punishment,
and then enacted that it should be lawful for the Lord Lieutenant, from
time to time, during the continuance of the rebellion—and whether the
ordinary courts of justice should or should not be open—to issue orders to all
officers of the army to take the most vigorous and effectual measures for
suppressing the insurrection, in any part of the kingdom, which shall
appear to be necessary for the public safety, and to pursue all persons act-
ing, aiding, or in any way assisting in the rebellion, or attacking, &c.,
according to martial law, either by death or otherwise, and to arrest and
detain all persons engaged in the rebellion or suspected thereof, and to
cause them to be brought to trial before courts martial. So the 3 & 4Wm.
IL. 4, declares that, nothing shall take away, abridge, or diminish the ac-
knowledged prerogative of Her Majesty, for the public safety, to resort to
the exercise of martial law against open enemies and traitors.

(a) This act provides that no act done, in pursuance of any orders so
issued, should be questioned in any court of law ; and to prevent any doubt
which might arise, whether any act alleged to have been done in confor-
mity with any order so issued, was so done, the Lord Lieutenant might de-
clare such act to have been go done, which should be conclusive ; and all
officers or soldiers who shall act under such orders, shall be responsible for
all things which shall be so done, to courts martial only, &c. All this, itis
to be observed, was to be without proclamation of martial law, and whether
or not martial law could legally be proclaimed ; or, if it had been pro-
claimed, continued, And then there was this saving clause, that no-
( 44 )

implies that when martial law has been at common law
lawfully proclaimed, it is an absolute indemnity for all that
is really done under it by military orders, for it expressly
gives such’an indemnity for?acts done under the statutable
power of exercising martial law where it could not be exer-
cised at common law (either because not declared, or because
it could not be lawfully declared), and it would be absurd
to suppose that the Legislature meant that there should be
an indemnity in one case, and not in the other.

That subjects in a state of rebellion may levy war against
the Crown, has been within the last few years declared
by the Legislature in an Irish statute (a), which makes
it felony or conspiracy so to levy war, without any actwal
levying of war; and, as the actual levying of war would
beyond all doubt justify martial law even within the realm,

thing herein shall be construed to take away, or abridge, or diminish the
undoubted prerogative of the Crown for the public safety,to resort to the
exercise of martial law against open enemies or traitors, or any persons, to
guppress treason or rebellion, so that this act affirmed the power of the
Crown to proclaim martial law, and also declared what martial law involves.

(a) The Crown and Government Security Act, 11 & 12 Vict. ¢«. 12.—The
first section, after reciting portions of 36 Geo. III., ¢. 7, and 57 Geo. IIL,
c. 6, repeals the same, except so much thereof as relates to the compassing
the death of the sovereign. And then, bys. 3, itis enacted, “ That if any per-
son whatever, after the passing of this Act, shall, within the United King-
dom or without, compass, imagine, invent, or devise, or intend to deprive
or depose_our most Gracious Lady the Queen, her heirs or_ successors, from
the style, honour, or royal name of the Imperial Crown of the United
Kingdom, or of any other of her Majesty’s dominions and countries, or to
lery war against Her Majesty, her heirs, or successors, within any part of the
United Kingdom, in order by force or constraint to compel her or them to
change her or their measures or counsels, or in order to put any force or
constraint upon, or in order to intimidate or overawe both Houses or either
House of Parliament, or to move or stir any foreigner or stranger with force
to invade the United Kingdom or any other of Her Majesty’s dominions or
countries under the obeisance of Her Majesty, her heirs or successors, and
such compassings, imaginings, inventions, devices, or intentions, or any of
them, shall express, utter, or declare, by publishing any printing or writing,
or by open and advised speaking, or by any overt act or deed, every person
so offending shall be guilty of felony.”
a)

so the conspiracy to do so, if widespread and formidable,
might justify it out of the realm (a).

The latest (6) and most approved authors on the subject
of military or martial law, declare that the power of the
Crown to proclaim martial law, in case of rebellion, is not,
even within the realm, limited by the Petition of Right,
which does not, be it observed, apply owt of the realm (ce),
and they lay it down broadly that the effect is to establish
an absolute military authority over all persons.

The most constitutional writers (d) have affirmed the

(a) And under that Act it has been lately laid down (in the masterly
charge by Mr. J. Keogh to the Grand Jury of Dublin, under the Special
Commission for the trial of the Dublin rebels, 1865), that there may be a
levying of war against the Crown, however weak, ill-arranged, and abortive
the attempt may be.

(b) Courts martial formerly derived their authority exclusively from
the Crown. A series of annual Mutiny Acts contained a special clause,
which expressly provided that they should not abridge that branch of the
Royal Prerogative ; and so far as it might prevail beyond seas, an analogous
distinction is still preserved in the terms in which the Mutiny Act declares
that the Crown may grant commissions for the holding of courts martial
within the United Kingdom, no mention being made of commissions
granted to hold courts martial elsewhere out of the realm. But the Crown
may grant commissions to Governors, &c., as well abroad as at home, to
convene courts martial. And the Articles of War speak of courts martial
out of the realm. (Simmons on Court Martial.) This power remains by
the prerogative, as at common law, the Petition of Right only applying to
a state of peace within the realm.

(c) The declaration of martial law renders all persons amenable to
courts martial under the orders of military authority—Simmons, 14,
The Petition of Right indirectly recognizes the legality of resorting to it
in times of war or intestine commotion. Ibid.

(d) ‘‘ There may, indeed, be times of pressing danger when the conserva-
tion of all demands the sacrifice of the legal rights of a few ; there may be
circumstances that not only justify, but compel the temporary abandon-
ment of constitutional power. It has been usual for all governments during
an actual rebellion to proclaim martial law, or the suspension of civil

jurisdiction. And this anomaly is very far from being less indispensable
at such unhappy seasons, in countries where the ordinary mode of pro-
ceeding is by jury, than where the right of decision resides in the judge.
But it is of high importance to watch with extremejealousy the disposition
towards which most governments are prone’ to introduce too soon, to extend
( 46 )

necessity for such an exercise of martial law in cases of
sudden danger or extreme emergency, when there is appre-
hension of an imminent peril to the public peace or safety
of the country, too sudden and too alarming to be met by
the ordinary processes of the law, which are necessarily
somewhat dilatory, and too powerful to be met by ordinary
force, which is only provided for ordinary occasions.

This prerogative of the crown (qa), not being at all affect-
ed by the Petition of Right, in case of a rebellion or in-
surrection, may be exercised even within the realm in such
case; and as the Petition of Right does not extend to the
foreign dominions of the Crown, the exercise of the pre-
rogative by Governors, representatives of the Crown in
colonies or dependencies where the English law prevails, is
still less limited, and fully exists as at common law, apart
from any statutable law.

In some colonies, however—among others, in Jamaica (6)
—there are special statutes on the subject, which affirm

too far, to retain too long, so perilous a remedy ” (1 Hallam’s Const. Hist.
vc. 5, p. 240). With every respect to the eminent author, it is apprehended
that this must have been written rather with reference to past times (at all
events in this country), than to the present, for in our own age ‘there
certainly is no disposition on the part of governments to coerce the people.
The same writer says, elsewhere, that, with the aid of our regular army,
the government can, in no probable emergency, have much to apprehend
from popular seditions. (Vol. iii. p. 263.)

(a) “The legality, or more properly the power, of the Crown, or the repre-
sentatives to proclaim martial law, has been fully set forth in many statutes,
which recognize the prerogative of the Crown to resort to the exercise of
martial law against open enemies or traitors.” (Simmons, p. 14, 5) It is
indirectly recognized in the Petition of Right; z.e. the legality of resort-
ing to it in time of war, or intestine commotion.

(6) In the 33 Chas. IT., cap. 31 (on the Jamaica Statute Book), passed
in 1861. In the 7th section it is laid down, ‘That upon every appre-
hension and appearance of any public danger or invasion, the Com-
mander-in-Chief do forthwith call a Council of War, and, with their
advice and consent, cause and command the Articles of War to be pro-
claimed at Port Royal and St. Jago de la Vega, from which said publication
the martial law is to be enforced ; that then it shall, and may be lawful for
( 47)

and extend the common law, and establish and extend
the prerogative of the Crown, expressly in the clearest
and strongest terms, confirming an absolute and discretion-
ary power to exercise martial law as may be deemed ex-
pedient.

Where an absolute power is given in express enactments
(as in the Irish or Colonial Acts alluded to), to declare, or
to act upon and exercise martial law, when the Lord
Lieutenant or Governor shall think it necessary to do so,
and to take all such measures as they or the military
authorities shall deem necessary or expedient, it is
manifest that, for the honest exercise of this power,
either in declaring, continuing, or exercising martial law,
there can be no legal liability, and it seems to be the
same at common law if all these statutes are only declara-
tory (a), as it is conceived they are.

the said Commander-in-Chief to command the persons of any of his Majesty’s
liege people, as also their negroes, horses, and cattle, for all such services
as may be for the public defence, and to pull down houses, cut down
timbers, command ships and boats, and generally to act and do, with
all full power and authority, all such things as he and the said Council of
War shall think necessary and expedient for His Majesty’s service and de-
fence of this island.” And that provision has been continued by subsequent
statutes down to the present time (vide 50 George IIL, cap. 17, sec. 73,
and 74, and the 9 Vict. Jamaica stat.) In none of the subsequent acts is
there any specific mode of proclaiming martial law, or any definition given,
except in the statute of Charles. The Petition of Right is a statute relating
to the realm of England, and did not apply to Jamaica, but if it did, this
Act overrides it.

(a) The statutes referred to appear plainly to be only declaratory, and
in aid of the common law power or prerogative of the Crown to proclaim
martial law in case of rebellion, and therefore the immunity which is
plainly implied in the absolute discretionary power, ie., an immunity on
condition of honesty, equally applies to the exercise of the common law
power, and the question is the same whether it regards the proclamation of
martial law, or its duration, or its operation and execution. No doubt,
when a man acts in execution of a strict legal duty; he must do go at his
peril; honesty of intention is immaterial, and he must “hit the exact
line,” however difficult (vide ante p. 80. in notds.), But that is the very reason
( 8 )

Waiving the question (a), which is one of great moment,
whether a Governor or Viceroy, representing the Crown,
can be liable, civilly or criminally, for any act done in the
exercise of royal authority, seeing that it is an act of State,
it is manifest that he cannot be held liable criminally for
the honest exercise of a lawful authority, in which he has
to exercise his own judgment, provided he has exercised
that judgment, however erroneously ; for even a private indi-
vidual, in acting in the suppression of rebellion, is protected,
if he acts honestly.

why martial lawis required, which is not limited by strict legal rule, but
is from the beginning to the end of it a discretionary power. And
it may be laid down undoubtedly, that there can be no culpability in the
honest exercise of a discretionary power. “It is certain that no man ought
to suffer, criminally, for an error injudgment (De Grey, C. J., Miller v.
Seares, 2 Wm., Blackstone’s rep. 1144); and althoughit is added, “it is
equally just that he should make reparation, civilly, for the damage which
other persons have suffered by such his error,” that same liability which, in
case of injury, short of death, would found an action, would in case of
death, entail a criminal liability ; and hence, in one of the cases on thejsub-
ject, it was said, that if a flogging was illegal, and would support an action,
then, if it caused death, it would support an indictment. And the Chief
Justice goes on to hold the Commissioners liable in that case, on the
ground thatthe act was illegal, and beyond their jurisdiction and legal
power; and that was the ground on which the Secretary of State was held
liable for issuing a warrant wholly illegal, one which he could not in any
case issue (Entick v. Carrington, 2 Wils. rep. 275.) But the Secretary
of State or Governor of a colony, acting in the exercise of a high
executive power of State, higher than judicial power, can surely never be
liable for an error in judgment, in declaring martial law, though in the
opinion of others it was not necessary to do so. It hasbeen held, lately,
that a Secretary of State is not liable for advice to the Crown. (Jrwinv.
Grey, 3 Finlason’s rep. 635, and see the author’s notes to his report of the
case of Dickson v. Gen. Peel, 8 Finlason’s rep. 527.) A Governor is not
liable for an act approved of by the Secretary of State, even though not
within his general authority, as it then becomes an act of State (Buron v.
Denman, 2 Exch. rep. 167). And if it is within his general authority, it
is equally so before the approval.

(a) It seems clear that he is not so liable whdle he holds the office, nor
afterwards, unless the act is clearly illegal or beyond his powers, as in the
case of a Secretary of State issuing a general warrant, that is one which he
could not even legally issue atlaw (Entich v.Carrington, 2 Wils. 275). Itisother-
wise where the act is one which under circumstances he might do, and as to
( 49)

There is strong authority for saying that an act within
the general power of a Governor or Minister of State is pro-
tected as an act of State.

It is a general principle of law (a) that those engaged in
the administration of public justice are not allowed to be
harassed by legal acts and prosecutions for their part in it,
whether as judges, jurors, or officers; and if this is the case
as to ordinary law & mullo fortiori, it is so as to extra-
ordinary law, like law martial, which is only lawful upon
some great emergency, and the execution of which is of
course likely to expose those engaged in it to greater
obloquy and odium, and involve them in greater peril if
they were legally liable, which it is conceived they were not,
unless they have acted maliciously.

Although, of course (0), if a general, or military officer,

the doing of which he has to exercise a judgment ; and moreover, the honest
exercise of a discretionary power is never criminal or legally culpable.

(a) “ As the law has exempted jurors from the danger of incurring any
punishment in respect of their verdict in criminal cases, it hath also freed
the judges of all courts of record from all prosecutions whatever, except in
the Parliament, for anything done by them openly in court as judges; for
the authority of a government cannot be maintained, unless the greatest
credit be given to those who are so highly entrusted with the administra-
tion of public justice, and it would be impossible for them to keep up in the
people that submission to their judgments, without which it is impossible
to execute the laws with vigour and success, if they should be continually
exposed to prosecutions of those whose partiality to their own classes
would induce to think themselves injured.” (Hawkins’ Pleas of Crown, B. 1.
c. 72.) Even ordinary Justices of the Peace are not liable at law unless
they act out of their jurisdiction, or maliciously. (Vide 6 B. & C. 626.)

(b) If the court-martial in time of peace put a man to death by martial
law, both the judges and officers are guilty of murder; but where persons
act by virtue of a commission, which if it were strictly regular would give
them full authority, but happens to be defective only in some point of law,
it seems that they are in no way criminal. (Hawkins’ Pleas of Crown,
B. 1. ¢ 72.) And so it would be according to ordinary legal analogies, if,
martial law having been lawfully proclaimed, there were any irregularities
committed in the manner of proceeding. There can be no doubt, and
appears implied from the proclamation, that if, in time of rebellion, the
Crown or its representative declared martial law, what was done under it,
that is, under the orders of the military authorities, who put it in force,
would not be criminal, nor in any way legally wrongful.

i
( 50 )

act upon or put in force martial law, when the state of
war or rebellion does not exist, or has not lawfully been
declared, he will be legally guilty of an illegal act, although
it may even then be a case for an act of indemnity ; yet
if he has acted honestly, either in declaring martial law,
or in carrying it out, according to military usage, he is
not legally liable, whatever errors or irregularities there
may have been.

That is, the law, it is conceived, is (a) not, of course, that
a governor or military commander can arbitrarily, and with-
out any honest or reasonable belief in its necessity, declare
martial law, and then under it act as arbitrarily as he
please with impunity, either as against persons not subject
to it, or in cases not coming under it, or the like, but that,
assuming that in the honest exercise of his judgment
he declares martial law, in a state of things in which he might
honestly and not unreasonably believe to be a case for it,
then, for what is done under it, in accordance with
military usage in such cases; or, on the other hand,

(a) Thus if a governor arrests or imprisons unlawfully or arbitrarily in
time of peace, that is in a case where he has no power to arrest or imprison,
he is liable to be sued, as a Secretary of State is, if he issues a warrant for
arrest, except in cases of treason or sedition. (Lntick v. Lord Carrington,
3 Wilson’s reports, 288, the great case of general warrants.) So, if he
imprisons in time of peace, he must show a legal justification. (Way v.
Gally, 6 Mod. 195; Lord Bellamont’s case, 2 Salk. Rep. 625.) So if he
subjects to military discipline persons not amenadle to it, as in the case of
General Sabine, cited Cowper’s report, 169; and so if he puts martial law in
force as to persons or cases not coming under it, or acts on martial law
without lawfully declaring it, or without its lawful existence. But it is
otherwise if he lawfully proclaims martial law, and it is only put in force
as to persons or places which come under it. Lord Mansfield truly says:—
“To lay it down in an English court of justice, such a monstrous proposition
as that a governor is accountable only to God and his own conscience, that
he is absolutely despotic, and can spoil and plunder, and affect Her
Majesty's subjects in their liberty or property, with impunity, is a doc-
trine that cannot be maintained.” But that was spoken of a case in
which the governor had virtually acted under martial law, where it did not
exist, and there was no suggestion that it existed. The other passages in
that celebrated judgment plainly imply that if it had lawfully existed it
( 81 )

done (without such authority), in excess of it, he is not
legally liable.

The very cases (a) in which at common law governors or
military authorities have been held legally liable foracts done
by them in the exercise of their authority honestly, and with
the best intentions, for the most praiseworthy objects, only
serve to show the necessity for martial law on occasions of
public emergency, on account of the infirmity of the com-
mon law in regard to such occasions, and also show that
when martial law has been lawfully declared, the governor or
military authority cannot be legally liable for what is
honestly done, for otherwise there would be no difference
between ordinary law and martial law.

would have been a justification for anything that could be done under it,
and it was not material to consider whether an action would lie at all.

(a) Such as were cited by Lord Mansfield in the judgment already
quoted: “I rememberan action broughtagainst Capt. Gambier, who, by order
of Admiral Boscawen, had pulled down the houses of some settlers, who
supplied the navy and sailors with spirituous liquors ; and whether the act
was right or wrong, it was certainly done with a good intention on the part
of the Admiral, for the health of the sailors was affected by frequenting
them. They were pulled down; the captain was inattentive enough to
bring the settler over in his own ship, and as soon as he came here was ad-
vised to bring his action against the captain. He brought his action;
and a thousand pounds damages given against Captain Gambier.” (Cowper’s
rep. 101.) “I recollect another case which came before me, which was the
case of Admiral Palliser; it was for destroying fishing huts upon the
Labrador coast. After the treaty of Paris, the Canadians, early in the sea-
son, erected huts for fishing, aud thus got an advantage by beginning
earlier than the fishermen who came from England. It was a question upon
the rights of the Canadians. However, the Admiral, from general prin-
ciples of policy, ordered the huts to be destroyed. The action went on.
Ibid. A similar instance occurred in the naval service of Lord Nelson,
who was continually harassed by actions for some steps he took in the public
service abroad. These are illustrations of the danger which governors or
military authorities run in acting for the publie welfare at common law,
seeing that they must make out a strictly legal justification for their acts,
which they hardly ever can. This is the difficulty to be met by martial law,
but if the authorities have to convince a court of law that they were

justified, they are not relieved from the difficulty.
E2
( 52 )

It is manifest from these premises (a) that even if a
governor who has lawfully declared martial law and directed
certain acts to be done under it, can be liable legally at all,
whether for acts justified by martial law or not, so if not
done under his direct orders, at all events the lawful pro-
clamation of martial law would be a full legal defence for
any acts, justified by military usage, under martial law,
however arbitrary.

The law on the subject is not at all affected by the
statute (b), which provides that criminal proceedings may
be taken in England against a person who has acted as
governor, for acts done abroad during the period of his

(a) “I can conceive casesin time of war in which a governor would be
justified though he acted very arbitrarily, in which he could not be justified
in time of peace. Suppose, during a siege, or upon an invasion of the
island, the governor should judge it proper to send an hundred of the inhabi-
ants out of the island, from motives of real and general expediency ; or, sup-
pose upon a general suspicion, he should take up people as spies, upon proper —
circumstances, laid before the court, it would be very fit to see whether he
had acted as the governor of a garrison ought according to the circumstances
of the ease.” (See Lord Mansfield, C. J., Mostyn v. Fabrigas, Cowp. 173.)
That is, as itis presumed, whether he had acted honestly in the exercise of
his supreme military authority, for it could hardly be meant that a court
of law could enter inio questions of military strategy, especially as Lord
Mansfield also says, “The court, if the nature of the case would have al-
lowed of it, might have adjudged that the raising of a mutiny was a good
ground for such asummary proceeding.” Ibid.

(6) The 42 Geo. III. c. 85, reciting that whereas persons holding or exer-
cising public employment out of Great Britain, often escape punishment for
offences committed by them, for want of courts having sufficient jurisdiction,
or by reason of their departing from the country or place where such
offences have been committed ; and such persons cannot be tried in Great
Britain for the offences, as the law now stands, inasmuch as such offences
cannot be said to have been committed in any county; and then enacting,
that if any person who shall be employed in any civil, or military station,
or office, out of Great Britain, or shall hold or exercise any public office,
&c., shall commit or be guilty of any crime or offence in the execution of,
or under colour of, or in the exercise of such office, &c., such crime may
be prosecuted in the court of Queen’s Bench in England, on infor-
mation exhibited by the Attorney-General, or indictment, &c. The act
assumes that the governor has been guilty of a crime, and that is left as
it was. It only affects the venue.
( 53)

government ; for the scope of that statute is merely pro-
cedure ; it assumes that there has been an offence pun-
ishable by law, and it leaves the law as to the criminality or
criminal responsibility for the act just where it was, so that
if it was not criminal in the colony, it will not be so here.

A Minister of State, or a governor, or viceroy, declaring a
state of rebellion to be a state of war, and proclaiming mar-
tial law, exercises a high discretionary authority vested in
him by the Crown to be exercised by him according to his
judgment, for an error in which he may no doubt be liable
to be censured by the Crown or by Parliament, but for
which he cannot be criminally liable to an individual, unless,
at all events, in the not very probable case of a proceeding
wholly colourable and tyrannical (a).

The truth is, the subject of martial law cannot be
granted unless it is regarded as, from first to last, a measure
of military necessity. In war it is every thing to anticipate
the enemy; and in government it is idle, and also cruel, to
wait for an insurrection. (b) The moment it appears that

(a) See thejudgment of Baron Parke, in the case of Buron vy. Denman, 2
Exch. rep. 167, as to the immunity of an officer for an act adopted by the
Government as an act of state, which of course implies immunity in the
minister. See also the notes by the author to the report of the case of
Dichson v. Peel, 3 Finlason’s Nisi Prius cases, 635, where a similar view
is maintained. In the recent case of Luby v. Lord Wodehouse, in
Ireland, the court of Queen’s Bench in Ireland summarily took off the
file a declaration in an action against the Lord Lieutenant for having the
plaintiff arrested under a warrant issued under the Treason Felony Act,
but which virtually gives a qualified power of acting under martial law
without proclaiming it,—the court holding that it was an act of State for
which the Lord Lieutenant could not be sued. It would be disastrous if it
were otherwise, andif a Lord Lieutenant or the Governor of a colony, who
had proclaimed martial law in an honest belief of its necessity, were liable
to be indicted for murder by the friends of those slain in rebellion. It
would thus depend upon the opinion of a jury, thousands of miles away
from the place, months or years after the event, when circumstances had
altered and witnesses had died, and memory had failed or been tampered
with by partisans—whether a Governor who had saved a colony from
cruel massacre, should himself be convicted of murder.

(6) The arming and drilling of men in secret, under such circumstances
as to show that it can only be against the Government, is a levying of war or
( 54 )

a large part of the population, too numerous to be dealt
with by civil force, are arming and drilling, and thus
preparing for rebellion, it is best to declare martial law at
once, and crush the rebellion before it breaks out.

The matters (a) which have to be considered as elements
of judgment, upon the question of the declaration of mar-
tial law, are far too large for the consideration of a jury.
They embrace the character and condition of the disaffected
part of the population ; their preparations for rebellion ; the
signs and symptoms of the spread of a rebellious spirit ; the
strength of the military and police, the strategical capacity
of the country, the conditions of warfare, &c.

The fundamental question (b) upon the consideration of

so near it, as fully to warrant the declaration of martial law, supposing
that there are reasonable grounds for believing the disaffected part of the
population so numerous that if the rebellion spread, it must be fatal. It
would be idle to wait until it was too late. A smaller force must meet a
larger by superior strategy and energy. There may be the state of war long
before the actual outbreak of it; and the state of war is proved by hostile
arming and drilling, at all events accompanied with any lawless acts, or
defiance and resistance of the law, as in the Jamaica case.

(a) For example, in the recent remarkable instance of Jamaica, there was
a large island with much mountain, and wood, and bush, difficult of ac-
cecss, and an enormous black peasant population, in their character singu-
larly credulous and excitable, about 400,000 to only 15,000 whites, with
only 1,000 soldiers and scarce any police, witha strong and overwhelm-
ing passion among the blacks for the possession of land, favoured and
influenced by popular agitation, &c. Then, for months there had been
evident disaffection, secret arming and drilling, open acts of resistance and
defiance of the law, and at last a terrible and cruel massacre.

(6) Nothing is more clear than that if there is no original authority, and
the assumption of it is illegal, all those who act under it act illegally;
although, it is also a well-known principle that if there is the original
authority, then those who act under it, notwithstanding any mere irregu-
larities in its execution, may be justified. The common instance of thisis
that of any court issuing its warrant or writ; in such case, if the court has
jurisdiction, then the writ or warrant will justify the officer acting under it,
for he can only go thereby; but it is otherwise if the court has no jurisdiction,
then all are trespassers, and, in the case of a capital sentence,—may be mur-
derers. (Vide Carratt v. Morley, 1Q. B. rep. 18.) It is always, therefore, a
fearfully vital question when life has been taken, whether there was original
( 55 )

a case of martial law is, the legality of the proclamation or
declaration of it, which depends, it is conceived, simply
upon the fact of its having been so declared; otherwise
there could be no security for any one ever acting under
martial law, for it is a general principle that if there is no
original authority or jurisdiction, all who act under it act
illegaliy, and so, if they take life (save in self defence, or in
suppression or resistance of actual felonious outrage), are
guilty of murder.

If the legality of martial law were made to depend (a)
upon the soundness of the judgment exercised in declaring
it, in the opinion of other persons, at a great distance, and
after the event, and under different, perhaps hostile in-
fluences, it is obvious that no one could even venture to
declare, or to act upon, martial law, and put in force its
terrible powers for the salvation df a colony or a depen-
dency.

Assuming, however, that martial law has been legally
proclaimed, then there can be no doubt that its effect is to
place all persons within the district under military govern-
ment (6), which, as is well known, is purely arbitrary, and is

authority orjurisdiction; all important, for the sake of those who act under
it, by the order of superior authority.

(a) The absurdity and incongruity of such a view is only the more apparent
under the Act of 42 Geo. III. than it was before. For, prior to that act the
governor would be sued, if at all, after being removed from office, in the
colony, where people, at all events, would know the necessity for martial
law, and probably be grateful to him for proclaiming it, and the governor
is unlikely to declare it, unless in accordance with a general widespread
feeling of necessity and apprehension. And now it is to be tried in
England, thousands of miles away, with the witnesses at that great distance
only to be examined on commission, without the benefit of oral evidence,
and perhaps with the disadvantages of prejudice raised by partisans.
Indeed, he would not be likely to be indicted here unless from prejudice.

(4) It is laid down in Simmons on Court Martial, that the effect of
martial law is to render every person liable to be treated as a soldier,
or rather as a rebel; for, in case of a rebellion, the population are

prima facie rebels, (Vide General Nelson’s evidence, in the Jamaica
case.) The effect of this is that the military code prevails as to offences, as
to penalties, as to procedure, and not the common law. Thus, therefore,
( 56 )

guided only by military rule, military usage, and military
authority, and this solves all questions arising as to the
scope or extent of martial law, as to the persons or matters
coming under it, or the measures adopted.

Assuming, however, that a minister or governor can be
legally liable for declaring martial law (a), it is clear that
the question can only be whether he really exercised an
honest judgment upon such facts as might not unreason-
ably tend to the conclusion of its necessity. The difficulty,
however, is that this might be a matter of military
exigency, of which a jury could not judge, or of facts
and circumstances of which there was an honest belief, but
of which no strict legal proof could be given.

The proclamation of martial Jaw, as it is a declaration of
a state of war, based upon the existence or imminence of a
rebellion, and the inadequacy of the force to meet it, must
always, more or less, be a question not merely of policy, but
of military exigency (b), and dependent upon a personal

under martial law persons are liable to be seized and shot for acts, no
offences at all, or mere misdemeanours at common law, and may be so dealt
with on suspicion without strict legal proof, which is only regarded at eom-
mon Jaw. It is a matter certainly of military discretion and military
exigency. There is, therefore, no sort of analogy between martial law and
ordinary law. (Vide Johnstone v. Sutton, 1 Term. rep. 545.)

(«@) Which would involve of course the necessity for his being prepared
to satisfy a jury of the reasonableness of his judgment, and to do so by
strict legal proof of facts which would satisty them of it, for only strict legal
proof could be received on a legal trial. The result would be that a jury
would have to determine a matter not only of political prudence, but
military exigency, and that the governor would have to justify, by strict
legal proof, a judgment which he had found to the best of his ability,
upon information or belief of himself or others, and observations made,
much, or most of which, he could not produce as legal evidence, much of it
being personal observation, general belief, hearsay, rumour, &c., all of
which would be legitimate elements of judgment, but would not be
admissible in evidence.

(6) It must necessarily depend upon the size and extent of the colony, or
dependency, or the district endangered, the character and condition of the
population, and especially of that part of it deemed to be disaffected; the
information gained as to the numbers and movements of the disaffected,
which might be alarming, but vague, and might turn out to be exaggerated.
judgment, to be formed at the time, uponan emergency,
on a sudden sense of responsibility, without much time or
any leisure for reflection, upon hasty observation and hear-
say information, and upon various matters more or less
elements of judgment, but not admitting of legal proof,
and also necessarily matters of opinion, on which one man’s
judgment might differ from another's.

All the reasons which apply against holding a com-
mander-in-chief legally liable for carrying out military
authority in time of war, equally apply in time of rebellion,
when martial law has been declared, which is a discretionary
military authority, and also apply @ fortiori against
making the governor liable for declaring it, for it is an
an act done by him in the exercise of a high governmental
function as representing the Crown, and seems to come
under the denomination of an act of State (a).

The extent to which they were armed or organized (which again would be a
matter on which there might be alarming, but uncertain information, and
great difference of opinion), the character of their leaders and their
ultimate intentions, the degree to which the disaffection was local or
general, and, with reference to this important point, the degree to which
it was mixed up with any fanatic or hostile feeling towards any other
class of the population. Perhaps. it was a rebellion of caste or colour, or
creed, or otherwise of a character likely to diffuse itself in the signs and
symptoms of impending insurrection. The number of the military and
police, their capacity for dividing their forces, the probability of their
being overwhelmed either by numbers in actual attack, or by the fatigue of
constant watching, and so forth, a vast variety of circumstances, all resting
more or less either upon uncertain information, or upon mere opinion
and personal observation, little of which could be reproduced in legal evidence.
(2) It is a well settled principle that a party cannot have a remedy at law
for an act of State (Zlphinstone v. Bedrechaud, 1 Knapp, 316), that is, for
an act which a Minister of the Crown had legal power todo. The remedy
(such as it is), is only against the Crown (Benson v. Denman, 2 Exch.
rep. 184). That was an action by a foreigner against Captain Denman for
an act done under the orders of a governor of a colony, approved of by the
Secretary of State. But the principle appears equally to apply to the acts
of a governor as representing the Crown, and exercising a high prerogative
of the Crown, provided he does so lawfully, though, indeed, if the
prerogative is really exercised it must be done lawfully, for the prerogatives
of the Crown are part of the common law of the land (Vide 2 Blackst.
Comment.) Of course it would be otherwisc if he acted colourably.
( 58 )

PART II.

THE NATURE AND POWERS OF MARTIAL LAW.

From these premises it will be manifest that the effect
of the legal declaration of martial law (a), is to establish in
the proclaimed district a state of war, and a species of rule,
altogether different from, and opposite to, that of the
common law, in every respect, whether as to offences,
penalties, or manner of procedure, power of arrest, nature
of proof, or mode of trial.

What may be done under martial law depends upon its
real nature and character, and that, as has been shown, is
neither more nor less than this, that is a declaration of
war by the Crown, against the subjects, in consequence of
a prior declaration of war by them against the Sovereign.
This is the fundamental principle, and from this results the
necessary consequence, which underlies the whole subject of
the scope and effects of martial law, that it justifies the
treatment of all that part of the population which is fit for
fighting, except those who are actually engaged in putting

(a) This is the very reason why the Petition of Right prohibited it in time
of peace, and why its exerciseis regarded with such jealousy. If it were atall
like the common law, there would be no reason for this ; it is just because
it is the opposite of the common law in every respect and utterly absolute
in its character, that therefore the Constitution will not allow of it within
the realm in time of peace. Thus Hale declares that it is no law at all-
Thus the Petition of Right adverts to it as the power of summary execution
by military law. It is, in fact, the establishment of military rule, which is
necessarily in its nature arbitrary and absolute. So Blackstone’s Martial
Law is the law, whatever it may be which is imposed by military
authority, vol 2, p. 502.
( 59)

down the rebellion, prima facie as rebels ; that is, under sus-
picion of rebellion, whether or not they are found actively
employed in support of the rebellion. Prima facie they are
rebels, because they are in a district in a state of rebellion,
and are not found acting against the rebellion. In rebellion,
there can be no neutrality.

All, therefore,,who are not with the Crown, are, rightly
and necessarily regarded as with the enemy, and are subject
to such military usages as affect the forces of an enemy.
Martial law means the law, whatever it may be, which is
imposed by military power ; for which reason it has now no
place in our constitution within the realm, except in case of
war or rebellion, for it implies much more (a) than the
establishment of that regular military rule, however strict
and severe, which is administered, in ordinary times, in
the army under the Mutiny Act and the Articles of War (0).
It means the establishment of absolute and arbitrary
military authority, such as in time of war is exercised over
the army, or against the enemy.

From this it is manifest (c) that the effect of proclaim-

(a) Blackstone’s Comment. vol. 2. Part 1, p. 602.

(6) “Where martial law is established and prevails in any country, it is of
a totally different nature from that which is commonly called martial law,
merely because the decision is by a court-martial, but which bears no
affinity to that which was formerly attempted to be exercised in this
kingdom, was contrary to the Constitution, and has been exploded.”
(Lord Loughborough, Grant v. Gould, 2 H. Blackstone’s rep. 118). That
is, in time of peace within the realm, according to the Mutiny Act
and the Petition of Right. Vide ante. It was contrary to the Constitution
because it was absolute and arbitrary. The ordinary military law, as laid
down in the Mutiny Act and Articles of War, is terribly severe. The act
itself makes provision as to certain specific offences, and fixes the general
nature of the punishments to be inflicted, so that if any soldier shall excite
or join in a mutiny, or, knowing of it, shall not use his utmost endeavour
to suppress it, or hold correspondence with arebel, he shall suffer death.
(2 Black. Comm. 601.)

(c) It must mean all this or it must mean simply nothing ; for the fullest
power of resistance to actual outrage is already given by the common law
under the great natural right of self-defence, and the common law likewise
gives the fullest power of regular procedure against traitors or rebels, by
( 60 )

ing martial law, in a district, 1s to declare it in a state of
war, and to place it under the absolute military authority
of the chief military commander, to put the population in
the position of being prima facie treated as rebels, and to
confer an absolute power on the chief military commander
of taking such measures as he may deem proper, subject
only to the rules and usages of war.

The truth is that, as the very phrase martial law (a) im-
ports, it is not that under martial law the ordinary law,
is administered in a more summary way, but it is a to-
tally different law, which is, indeed, no law at all, in the

indictment, arrest, legal trial, and strict legal proof, all of which, of course,
interpose such difficulty and delay, as to render it perfectly idle and use-
less upon a sudden conspiracy and imminent public peril. The highest
military and legal authorities describe the effect of martial law to be the
establishment of a state of war, and of absolute military authority. Thus,
the Petition of Right distinctly describes it as a power of summary execu-
tion by martial law. Thus, inthe great case of Grant v. Gould, 2 H. B.
Lord Loughborough speaks of it as quite different from regular courts mar-
tial under ordinary military law, and as involving a state of war. Thus,
Lord Hale speaks of it as no law at all, &e. vide ante. Thus, Simmons
states, “That courts martial are regulated by the Mutiny Act, and the Ar-
ticles of War, and general orders, and that their practice is moreover regu-
lated on points where that law is silent, chiefly by the customs of war, 7. e.
the usages of the British Army (Simmons on Court Martial, p. 87).
So it is laid down in that work, p. 97, that, “The proclamation of martial
law renders every man liable to be treated as wu soldier, that is, liable to be
tried summarily for the same offences, and to suffer the same penalties for
the game offences.” To the same effect was the opinion of the Attorncy-
General of Jamaica; and in his evidence he declares it impossible to define
martial law, otherwise than that those taken are liable to be treated as
rebels.

(a) The Articles of War, which form the only definition of offences
cognizable by military law, include a number which are no offences at all
by the common law, and render others, which at common law are mere mis-
demeanours, capital. Thus, for instance, the offence of sending intelligence
to an enemy, that is, to a rebel, is by military law capital. So is the offence
of seditious words, or even the concealment of seditious papers. Seditious
words indeed, and still more seditious public actions, or proclamations,
tendiog to inflame the population, although at common law a mere misde-
meanour, is, under martial law, visited with the capital penalty,and re-
garded as most formidable.
( 61 )

sense in which that phrase is usually understood, but is at
all events in its offences and of penalties, as well as in its
mode of proceeding, or of proof, utterly different from those
which prevail under the ordinary law of the land. It is
the application of military law to the whole popula-
tion of the district, and every one knows how unlike that
is to the ordinary law.

The true reason of this distinction (a), and the real key
to the subject of martial law as distinct from ordinary law,
is, that its scope is not so much legal culpability as military
exigency ; or, in other words, not so much criminality as pub-
lic safety ; and hence, although ut common law the criminal
intent is always so important, and, indeed, generally es-
sential (always in capital crimes), it is not so in martial law,
which looks rather at the actual than the intentional
cause of the mischief, and the necessity for an exemplary
penalty.

The greatest authorities (b) of the common law itself,

(a) The scope of the common law on criminal questions, is the vindica-
tion of the law in ordinary times and under ordinary circumstances, when,
therefore, the main object is the avoidance of injustice to the accused,
and the satisfactory demonstration of his guilt. But, under martial law,
the paramount object is the safety of the State, and the meeting of the im-
minent peril which is supposed to threaten it. Those rules of strict proof,
and that perfect demonstration of guilt, therefore, which are required by
the criminal judicature at common law, are dispensed with necessarily under
martial Jaw, or it would utterly fail of its ohject. Under common law the
question is, whether it is clearly made out that the man is guilty; under
martial law, the great question is, whether he has caused the mischief, so
that he must be taken to have intended it ; and whether his death is neces-
sary to remove the danger he has caused.

(6) Thus, Lord Hale, in treating of treason, and, in particular, of that
kind of treason which consists in adhering to the King’s enemies, dis-
tinguishes cases in which the offender might be liable to death by martial
law, although not guilty of the crime of treason, because not having that
criminal intent which is of the essence of that crime. Thus, he says of
one case, ‘“ Though the charge was treason, and possibly the proofs might
amount to it, the facts found did not amount to it, because showing no
treagonable intent ;” and then he goes on, “ The truth is, if it were de-
livered up by treachery it might be treason, but if delivered up upon
cowardice or imprudence, without any treachery, though it were an offence
( 62 )

listinguish between the criminal intent which is essential
o the legal guilt, and that matter of fact, quite apart from
ictual intent, or guilt, which may justify even a sentence of
leath under martial law in time of civil war or rebellion, and
ecognize that the nature and scope of martial law, as of war:
s rather the suppression of hostility and the removal of
langer, by means of terror, than the vindication of law.

The great difference here arises, as has been already
iointed out, from the distinction (a) between the scope of
ommon law and of martial law ; in that the former mainly
egards guilt, the latter chiefly regards danger. The one,
herefore, exacts strict legal proof of guilt, and especially
he intent; the other, looking rather to the danger, looks
nly to the actual cause of the danger, and less to the intent,
nd to the actual or probable result of the punishment to
e inflicted on persons supposed to be implicated.

As regards the apprehension of persons on suspicion,
rere is the utmost difference between common law and
iartial law. By the common law (6), the suspicion must

tainst the laws of war, and the party subject to sentence of death by mar-
ul law, as it once happened in a case of the like nature in the late times of
suble, in the case of Col. Francis, Parliamentary Governor of Bristol,
: surrendering the same to the King’s forces.” (See State Trials, vol. i. p.
5.) “Yet it is not treason by the common law unless it was done by
sachery ; but though the sentence was given in terrorem, it was not exe-
ted; it seems to be akind of arbitrary sentence.” (Pleas Crown, vol. i.
168.)

(a) The reasons of this distinction have been already pointed out, and
xy arise from this, that common law is the law of peace, and martial law
the law of war. (Vide ante.) This distinction is radical, and essential,
1 pervades the whole subject. In time of peace, the courts can afford to
strict, critical, and technical in the definition of offences or the proof
guilt; but in times of great public danger, there really is not time for it,
1 there would be nosense init, The question then is, who has caused
: danger, or helped to cause it, and who are those whose prompt punish-

nt will be most deterrent. At such a time, if it is plain that a man has

wed a rebellion, and that nothing but his death will stop it, what does
natter whether he directed exactly what has happened ?

6) Under the common law, a person arrested must be charged with some
cific offence, as, that he has set fire to such a house, or killed such
( 68 )

be of some specific felony or crime already committed, and
there is only aright of apprehension for judicial inquiry. By
the law martial, or rather by military usage—it is enough
that there is a suspicion of general complicity in the rebel-
lion or conspiracy ; and the seizure is for the purpose of
prompt and summary disposal.

So far as regards the resistance of acts of outrage, or
suppression of actual rebellion, the common law is identical
with, and includes martial law, for, as already shown, all
persons, soldiers or citizens, with or without the authority
of magistrates, may resist rioters and suppress riot and
tumult (a), with force of arms if necessary, and (6) so, even
as to the apprehension of persons on suspicion of a felony
which has already been committed.

It is as regards general complicity in rebellion, apart from
acts of outrage (c), and as to measures taken to prevent

or such a person, and the like. At all events, unless he can be fixed with
participation in some general criminal design, as conspiracy or treason, it
is not enough that there are circumstances to show that he has been
guilty of some acts of crime, or that he is in complicity with the rebellion ;
he must be fixed either with being a party to it, or with some specific crime.
There may be hundreds or thousands, of whom there is no moral doubt that
they have committed some crimes, and that they are in complicity with,
and secretly assist, the insurgents, who cannot legally be fixed.

(a) Vide ante p. 30.

(6) It is here that the divergence between the common law and martial
law begins, There is a distinction, at common law, between constables
and private persons, so that though both may arrest on suspicion of
felony, the latter do it at their peril, unless a felony has been committed,
and unless the grounds of suspicion are reasonable. (Mure v. Kay, 4 Taunt.)
Whereas the power of a police officer is larger, and he may arrest, not only
on suspicion of guilt of a felony which has, in fact, been committed, but on
suspicion of a felony which, it turns out, has not been committed. Sup-
posing a felony committed, and the party charged refusing to surrender, he
may, if necessary, be killed by the officer. (R. v. Woolmer, 1 M. C. C. 334.)

(6) The object of all criminal prosecutions and punishments is to deter
others from the like offences; but the process at common law is so slow and
uncertain that in times of public peril it totally fails. The peril will be
over, or will have proved fatal, before the parties—even if they can be
arrested and convicted—can be prosecuted. Therefore the deterrent effect
of martial law, as compared with common law, must necessarily be
, oF)

such acts from being committed, that martial law differs
so widely from the common law. As regards both, the
object is the same, and the main means adopted under
martial law are, in crushing the spirit of rebellion through
the terrors imposed by the stern, summary severity of
military measures.

As to the military measures to be adopted, and especially
as to the manner under which the inhabitants are to be
arrested (a), or otherwise dealt with, it must be a matter of
military discretion, dependant upon military exigency and
upon all the circumstances ; the governing principle being
that the basis of martial law is danger rather than guilt ;
and the meeting of danger by the exciting of terror.

Of course, the proposition on which martial law rests,
viz., a state of rebellion, involves, in one sense, the right
to treat every man in the district as prima facie
a rebel ; but it would be perhaps more correct to say that it

in being infinitely more prompt, speedy, and summary in its scizure
and punishment of offenders.

(a) Of course, martial law must involve the discretionary power of
arrest, that is of arrest on general suspicion, as distinguished from that par-
ticular suspicion supported by specific proof, which alone justifies an arrest
at common law for an offence already committed. For the mere suspension
of the Habeas Corpus Act involves that, and martial law means infinitely
more than the mere suspension of a special statutable guard to the liberty
of the subject as it exists at common law. It means the suspension of the
common law itself, and the substitution of military law, now under ordinary
military law ; first, there may be an arrest or charge of any offence known
to military law, which may not be avuilable at common Jaw, as insubordi-
nation, mutiny, &., and next, follows from this, a power of killing in case
of flight or resistance, if it is impossible otherwise to arrest, as at the
common law, in case of lawful arrest on a charge of felony, and then, further,
there is, of course, a right to attack and disperse any body of persons found
together under such circumstances as to suggest. to the military even the
suspicion that they are a body of rebels, unless they submit and surrender
themselves as prisoners, in which case, of course, their cases are to be
inquired into. Further, military law involves an unlimited power of arrest
of persons on suspicion of complicity in the rebellion, even in their habita-
tion, and so of persons out lurking about at night, which, indeed, may,
sometimes, under martial law, after notice, be punishable by death.
( 65 )

involves (a) a right to treat them as is proper to treat per-
sons in a district which is in a state of rebellion, or as sol-
diers are liable to be treated in time of war, 4. e., with strict
military discipline, according to the usages of war. This
necessarily involves the discretionary power of making
prisoners, and of summarily dealing with them.

Under martial law, those acts or offences which, under
common law are only misdemeanours, and liable to the
regular, deliberate legal procedure, as for instance (6)
seditious publications, tending to stir up sedition and
rebellion, become, on account of that tendency, grievous
and dangerous offences, punishable, according to military
usage, by death, because, although, at common law, in time
of peace, they are of no great mischief, the result being
trivial,—in times of danger, and of universal insurrection,
they are the most formidable and fatal offences.

Nor is it in the least necessary, under martial law, as it
is at common law, to bring home to a party charged with
seditious or rebellious incitements complicity with any

(a) This must necessarily be the result, because martial law is the estab-
lishment of a state of war, and the extension to the whole population of the
laws and usages of war, one of which is, that all bodies of men, apparently
assembled in hostility, may be attacked, and that all men whom itis thought
are enemies or rebels, may be arrested and subjected to military inquiry,
and all contravention of military discipline treated with summary severity
under law martial ; as, going about at night, seditious words, plunder, in-
telligence to the enemy, &c., possession of plunder, or weapons, or-am-
munition, or the like.

(6) It is certain that it isa very high aggravation of a libel, that it tends
to scandalize the Government by reflecting on those who are entrusted
with the administration of public affairs, which doth not only endanger
the public peace by stirring up the parties immediately concerned in it to
acts of revenge, but also has a direct tendency to breed upon the people a
dislike of their governors, and incline them to sedition and rebellion.
(Hawkins’ Pleas, Crown, B. 1, ¢. 70.) This direct tendency is to stir up
rebellion, which may be comparatively unimportant in time of peace,
but become fearfully formidable in a time of popular excitement and of
imminent insurrection, when large multitudes of people are only waiting
on a little incitement to raise an actual rebellion. Therefore martial law
deals with it very severely. (See Simmons on Court Martial.)

F
( 66 )

particular acts of outrage which may have been com-
mitted (a), for instance, a massacre. At common law it
would be so at all events, in order to inflict a capital
sentence, because to that end the party must be guilty of
the act of murder ; but not so at martial law, by which the
sedition itself per se, however general, and whether or not
proved to have caused the particular acts of outrage, is
capitally punishable.

Tt would be idle to expect any great deterrent effect
through observance of the strict rules of proof, as under
common law. After all, evidence (6) is in substance a.
mere matter of probability, and those positive rules of legal
proof which are observed so strictly in our common law
courts, are not only sneered at by philosophic jurists, but are
admitted by learned lawyers to be mere positive rules,
comparatively modern, and to be adapted in a great
degree to the infirmity of the trial by jury (c), which forms
the essence of our common law system.

The distinction is this (d) that, as in most human

(a) It is hardly necessary to mention that at common law sedition is not
capital, although treason is, and though a riot may be felonious. To
authorize a capital conviction there must be legal proof of a capital offence,
and by our present law no offences are capital but treason and murder;
therefore a man cannot be convicted capitally for a murder at which he
was not present, and which he cannot be shown to have incited—that is, at
common law he must be shown to have incited to that particular muider
or massacre, and it is not enough that he can be shown to have issued
seditious proclamations, &c., which, in point of fact, led to the massacre,
if he cannot be shown to have intended it, although it is”manifest that
he must have known it had a natural tendency to result in some such
disaster. Under martial law, this strictness of proof and sequence is not
necessary, and it is enough that a man published seditious proclamations,
tending to rebellion, whether or not intended.

(6) Locke and Hume both agree in this, and Lord Chief Baron Gilbert,
quoting the latter, says there are several degrees of it from perfect certainty
and demonstration, quite down to improbability, and even to impossibility.

(c) Vide per Tindal, C. J.,8 Bing. 58. Coleridge, J., Wright v. Tatham,
4 B.N. C. 10. Rutzen v. Farr, 4 A. &E. 561.

(d) Vide Burdett v. Abbott, 4 B. & Ald. rep. 61. So, Gilbert on Evi-
dence. ‘‘ All probability is founded on obscure and indistinct views, or
upon reports from the sight of others; and it is very plain that where
( 67 )

affairs, it is impossible to arrive at absolute demonstration,
it is a matter of degree of probability, and the common law
in criminal matters demands the highest degree (a), while
under martial law, the theory of which is a great public
peril and an imminent danger to the State—the authorities
who have to act in such an emergency must take what
evidence they can get, and often must act on a much
lower degree of probability, founded on the same credibility
of testimony as the highest.

Nor, again, is any formal trial, nor any strict legal proof
necessary ; the trial may be quite summary. It is of the
essence of martial law that it involves the power of
speedy summary procedure, with or without trial, for
offences against such law ; and, on the other hand, as it is
the suspension of the common or ordinary law of the land,
it necessarily involves the dispensation of the strict rules of
legal trial, and especially of proof, and it is sufficient if at
the time there is such proof as satisfies the honest
judgment of those who have to act.

we cannot see or hear for ourselves, and yet are obliged to make a
judgment of it, we must see and hear by report from others, which is one
step further from demonstration, and yet there is that faith and credit to be
given to the honesty and integrity of credible and disinterested witnesses
attesting any fact, and by the solemnity of an oath and the penalties of
perjury, that the Courts equally acquiesce therein as on a knowledge
by demonstration, and this is the original of trials and all manner of
evidence.” Jbid. And as this principle is applied at common law to facts
the witnesses state of their knowledge, so ina lesser degree it applies to
what they state on hearsay or the contents of written documents they have
seen, &c., although excluded by common law.

(a) The legal rules of evidence only apply to matters in which the
course of the common law prevails (Fell v. Hutchins, Cowper’s Rep. 424), and
not to proceedings before a forum not subject to the course of the common
law, as in the case of a visitor, “ who does not proceed, according to the rule
and forms of the common law, but suffers a party allegare non allegata et
probare non probata, and decides entirely on the merits.” (Rex v. Grunder,
Ibid., 322.) Courts martial are subject to the control of the courts of
common law only, so as to keep them within their jurisdiction (Grant v.
Gould, 2 Hen. Blackstone’s rep. 68); not that they are bound to adopt all
the rules that have been established in the courts of law, which cannot be
affirmed. Jbid. And that was said of ordinary and regular courts martial

FQ
( 68 )

The common law (a), indeed, lays it down that a
man must be taken to have intended the natural results
of his own words or acts, so that if he has issued publica-
tions or proclamations calculated to incite to sedition
or rebellion, he is to be deemed guilty of an intention to
excite sedition and rebellion. But, then, this principle only
extends to the direct natural consequences, not the indirect;
and, therefore, though at common law aman may in such a
case be convicted of sedition, because he is deemed to have
intended and incited to sedition, he is not deemed guilty of
murder, or other acts of outrage, arising from the sedition,
though morally he is guilty. Thus, in Sir F. Burdett’s
case, the judge told the jury in summing up, that the in-
tention was to be collected from the paper itself, unless ex-
plained by the mode of publication or othcr circumstances,
and that, if its contents were likely to excite sedition, the
defendant must be presumed to intend that which his act
was likely to produce. And so it has been held, again and
again, in cases of sedition (b), and it isa general rule and
principle of law.

It should be borne in mind with regard to procedure be-
fore court martial, that though, asa matter of precaution
in ordinary times (¢), the common law requires certain rules

governed by strict military rules, not of courts such as are established
under martial law, which are governed by no rule at all.

(a) Rea v. Burdett Bart, 4 B. & A. 95; 3B. & A. 717; 80 in Horne
Tooke’s case, the judges said in the House of Lords . “The crime of se-
ditious libel consists in conveying and impressing injurious reflections upon
the minds of the subject. If the writing is so understood by all who read
1t, the injury is done by the publication, beforethe matter comes into court.’,
(Cowp. rep. 685.) So Lord Mansfield said: “ It is the duty of the juryto con-
strue plain words according to their obvious meaning, and as everybody else
who reads it must understand them.” Jbid., 680. But if the jury doubt
as to what everybody understand from the words, the offender may escape.

(6) Vide Re Harvey, 2 Barn. and Cress. 257.

(c) It is only in general rules that the rules of precedure at common law
are vindicated by Judges, or great Jurists, or legal writers, (Vide Best's
Treatise on Presumptive Evidence, p. 112. Et vide ante, p, 60).
( 69 )

to be observed, it is rather for the sake of general rules
than because of their intrinsic or essential necessity or justice ;
and that writers (a) of a philosophical character, approve
of a more natural and less artificial mode of procedure, and
speak of courts martial, with other instances of summary
jurisdictions, as instances of what they call natural pro-
cedure.

The whole course of common law procedure in criminal
matters is, as we have seen, based upon the principle of
providing as much as possible for the security of the ac-
cused, and that is the great object in view. Hence the
necessity for a specific charge and sworn information, even
to warrant an arrest. Hence the strict requisitions of
pleading and of proof. Hence the onus is on the prose-
cutor to make out his case. Hence the necessity for the
clearest and most conclusive evidence as to warrant a con-
viction. Hence the need for an unanimous verdict of a jury
of twelve men. But the great object under martial law
is the safety of the State, and to that the security of the indi-
vidual must give way. If it were otherwise, martial law
would not be declared or allowed at all, for, beyond all
doubt, it provides rather for the security of the state than
for the individual, and takes no particular precautions for

(a) Mill, in his History of India, is very strong against our artificial pro-
cedure, as he calls it, especially the rules of evidence ; and though no doubt
he carried his views much too far, as regards a general and ordinary system
of administration of justice, his ideas alone suffice to show that there is
nothing so sacred in our rules of procedure or proof, as to render a de-
parture from them a denial of justice. Jeremy Bentham, again, speaks
with entire, though no doubt extreme, contempt of them, and holds that
courts of summary jurisdiction are courts of natural procedure, and better
than others whose procedure is more formal. And he especially instances
courts martial as courts of this natural character, superior, as he deems
them, to legal tribunals, because not fettered by strict rules of proof. And
it is to be borne in mind, that in time of rebellion, and under martial
law, our common law itself adopts this view, and consents to its own juris-
diction being suspended and amore summary system established ; and our
greatest Judges have declared, that all that is essential in such cases is an
adherence to natural justice. (Vide the author’s notes to his report of
Dicksov y. Peel, 3 Finlason’s rep. 632),
( 70 )

the protection of those who are presumably and, prima facie,
rebels, The principle on which it is presumed that all the
able-bodied inhabitants in the proclaimed district are rebels;
is plain and simple enough, as it has already been ex-
plained, and is, in short, only an expansion of the principles
of the common law itself. For at common law, in time
of rebellion, it is criminal to be neutral, and the refusal
to assist in quelling a riot is an indictable offence, while
even connivance at sedition or treason may be a serious
crime. Thus, under martial law, the state of war being pro-
claimed, it 1s the duty of every able-bodied man in the
district at once to rally round the Government, and assist
in putting down the rebellion ; and hence it is, that it is
presumed, prima facie, that every able-bodied man who is
not active on the side of law and order, is a rebel. The pre-
sumption is a just and fair one, for it is certain he is cul-
pable, and it is probable that he would not incur that
culpability, if it were not for complicity, secret or open, ac-
tive or passive, with the rebellion. And that complicity is
criminal,

Hence it is, that, under martial law, the whole able-bodied
male population are deemed, priméd facie, to be in a state
of rebellion. And hence it follows that they are all liable
to be arrested on suspicion. And although it requires
something more to subject them to attack, or to the
summary infliction of the capital penalty of treasonable
rebellion, it requires very little more in the way of pre-
sumptive proof. If, for instance, any body of men are
found in arms, that is, of course, quite sufficient to warrant
attack, and to subject such as may be taken prisoners to
summary execution ; so, if they are taken red-handed, as the
phrase is, that is, with weapons bearing the signs and marks
of recent conflict ; or if they are taken with property of
those who have recently been robbed or murdered upon
them ; always supposing that, in such cases of presumptive
proof, no explanation or exculpation is offered.

But upon the principle already explained, the burden of
( 71 )

proof is upon the person seized. It is just the opposite
state of things to that which exists at common law. For,
whereas at common law the presumption is against crime and
in favour of innocence, and every man is to be presumed inno-
cent until proved to be guilty, and proved upon strict legal
proof, and on the clearest and conclusive evidence ; under
martial law itisexactly the reverse of this,for, asalready known,
the men who are seized, standing aloof from the Govern-
ment in a time of rebellion, are already, from that very
fact, apart from any other evidence, in a position of sus-
picion, and more than suspicion, they are clearly criminal
to some extent ; they are probably, most probably, guilty
of complicity in the rebellion. It needs but some circum-
stances to raise a probability of active participation in
it, and then, under martial law, the capital penalty may
be exacted, if necessary or expedient.

Martial law means, in fact, military discipline, that is,
the application of it to a disaffected population, or a popu-
lation the whole of which are preparing for rebellion by
means cf drilling and arming, and are believed to be dis-
affected. And it operates chiefly by terror of summary
military executions, and by the rigid restraints of military
discipline. Its operation, even when inflicting military exe-
cutions, is really merciful, for it is certain to save life in
the long run.

When the Governor of a colony has declared mar-
tial law, his part in carrying it out appears to consist either
in giving general or particular orders to the Commander-
in-Chief (a) to carry it out, orin sending prisoners to the

(a) It was stated in the Jamaica case, by the Commander-in-Chief, to
be doubtful whether the supreme command rested with the Governor or
the Commander-in-Chief. The Governor is captain-general by the terms ot
his commission, and it is a matter, purely military, how far this authorizes
any direct interference with the military dispositions of forces. In point
of fact, such dispositions are, and in that case were, made by the Comman-
der-in-Chief, at the requisition of the Governor. The Commander-in-Chief
appointed a brigadier as commander in the field, and he (as the military
commanders considered), would be personally responsible for the orders
( 72)

commander, acting in the field, for the purpose of trial by
court martial, As to the former, for his own particular
orders, of course, he is responsible; for his general orders,
only so far as they are carried out in accordance with
military law, or the usage of the service.

The question, what means and measures may be taken
under martial law, must necessarily be mixed up with the
question (a).of legal liability for acts done under martial
law. The decisions in courts of law, as well as of the works
of military writers, lead alike to the conclusion, that in
time of war, mutiny, or rebellion, there is an absolute dis-
cretionary authority, so that there can be no legal liability
as regards the supreme authorities who put it in action, nor
as regards those who give or obey military orders under it.

It becomes necessary, therefore, to distinguish between
the various parts or functions taken by the persons in the
declaration or execution of martial law(b). The declara-

actually given, and the measures actually taken under those orders. He
had no particular orders, but only general orders from the Commander-in-
Chief, having therefore a discretionary power only controlled by the usages
and rules of the service. And he issued orders to the officers commanding
particular detachments.

(a) There is not, that the author is aware, any authority for maintain-
ing that a Governor or Commander-in-Chief, or any military commander
or officer, or soldier, lawfully putting martial law in force under legal
declaration of it, can be legally liable for orders issued or obeyed under
and by virtue of martial law, ¢. ¢., under and by virtue of military authority.
Any apparent authorities to the contrary are either clearly distinguishable,
or have been overruled by the highest authority in the country—the House
of Lords— who appear to have established in the great case of Johnstone v.
Sutton, 1T. R. 528, that there can be no legal liability for an abuse of a~
military discretionary power. If martial law be, as it seems to be, a dis-
cretionary military authority, this great case is decisive of the question. Of
course, this leaves wholly untouched (1) cases of utter illegality, through
total want of jurisdiction or authority ; (2) cases of acts done during martial
law, but not really under and by virtue of it, that is, not really in pursuance
of it, but under colour of it, and for private malice and revenge ; and (3)
cases of acts done without orders or authority at all.

(b) The declaration of martial law is one thing, and it is, of course,
fundamental. If it is illegal, then all that is done under it (unless other-
wise justifiable) is illegal. But assuming it legal, then all acts done under
(73 )

tion is the act of the Governor or other supreme authority,
Its execution is directed by the commander of the forces.
Its direction is entrusted to the general commanding the
forces in the field. Its actual execution to different offi-
cers commanding detachments, the men under whom have
simply to obey orders.

Even if, ina proceeding in a court of common law the
Governor of a colony could be made legally liable for any-
thing done under martial law. it is conceived that it is
abundantly clear (a) that it must be either on the ground,
not merely that there was no rebellion to justify the de-

and by virtue of it must be legal also. The Governor, declaring it illegally,
would be liable for all acts done under it, in its ordinary exercise, though
not for acts of abuse or excess, not done by his order or direction. So the
Commander-in-Chief would be liable for his orders, and for anything done
under them, and if martial law were legally declared, he would be justified
except as to any excess or abuse he personally ordered. So of the Com-
mander-in-Chief in the field, the acting commander; so of the various
officers acting in different places under him. Any one acting under orders
would be justified, except for anything which could not be justified by any
military usage, as the slaughter of infants. But short of all, such as that,
the exigencies of military service are so various, and so undefinable, that it
would be dangerous to lay down any definite rule as to what could not be
justifiable under military orders; it must be something very gross, which
might not be. But, those who committed with their own hands or by per-
sonal presence and direction, acts without, or beyond orders, would be per-
sonally liable.

(a) This seems the meaning of Lord Chief Baron Macdonald in Governor
‘Wall’s case, where there was strong evidence of malice. ‘ Whena well-
intentioned officer is at a great distance from his native country, and it
shall not appear that circumstances arise which may disturb and alarm the
strongest mind, it were not proper that strictness and rigour should be
required, where you find a real, true, and genuine intention of acting for the
best for the sake of the public. He is in a position for giving assistance
and advice; and if in those circumstances he should be somewhat thrown off
the balance of his understanding, and does not exceed greatly the line of
his duty, allowance for such circumstances ought to be given to him.
But, on the other hand, if he shall, by reason of his distance from control,
wanton with his authority and command, it will be the duty of the law to
control it and keep it within bounds,” (28 St. Trials, 148.) So is the lan-
guage of Lord Loughborough in the leading case of Grant v. Gould, 2 Hen.
Blackst. rep. 2. “That courts martial are under the control of courts of law
to bring them within the bounds of their jurisdiction.”
( 7 )

claration of martial law, but that there was no real belief in
it, and that it was a mere colour and pretence, or that the
act, though done dwring martial law, was not really done
under martial law, but was done wantonly and wickedly,
and under colowr of martial law.

~ When the authorities (a) are closely looked at, it will be
found that there is none in which the question of a mutiny
or rebellion, or the measures necessary for its repression, in a
case in which a Commander or Governor has really formed
a judgment thereupon, has been left to a jury in a court of
law. But the question has always been whether the
mutiny or rebellion was merely set up as a pretence, in
order to the indulgence of vengeance, malice, or revenge,
under colour of it, and not really under it.

Assuming a state of martial law lawfully established, the
Governor cannot be liable for acts done under it, not done
by his direct personal authority. Even in a case of an act
done by the direct military order of a Governor or Com-
mander, its illegality must depend either upon want of
jurisdiction or authority, or on a bad and wicked motive,
or upon such gross reckless excess as in our law, implies it.

(a) Thus in the case of Governor Wall (28 St. Tri. 36), the case for the
prosecution, as stated by the Attorney General, was not merely that there was
no mutiny, but that there was no pretence for it, and that the pretence of it
had been made the colour for inflicting murderous punishment (p. 56), and
the Lord Chief Baron, though he did not put it so clearly, yet taking the
whole of his summing up, perhaps substantially put it so, for he told the jury
that if the evidence for the Governor was true, there was not any doubt
that there was a mutiny, and a very serious one; but he pressed it upon
them that the Governor had never set it up at all, until the time of his trial,
so that it must have been a mere pretence and afterthought, set up to rid
himself of the criminal charge, so that in that view (which the jury adopted)
it must have been a mere colour and pretence. Beyond all doubt, however,
there were grave grounds of objection, or, in an ordinary case, there would
be, to the way in which the Lord Chief Baron formally put the question at
the end of his summing up, mutiny or no mutiny, for that might lead the
jury to suppose that the only question was whether in their judgment there
was or was nota mutiny. Lord Ellenborough, a far higher authority, put
jt correctly, that the question was whether there was a mutiny, or whether
it was made a mere colour and pretence,
( 75 )

And it is not a mere error of judgment which will render
him liable, provided he had jurisdiction or authority, the
entire absence of which, of course, will render him liable
legally, although he may be entitled to an act of indem-
nity. (a)

It may be (b) that a Governor, even though a person
representing the Sovereign in all functions, civil and mili-

(a) This was remarkably illustrated in the case of Wall v. Macnamara,
cited, 1 Term. rep. 536. That was an action by the plaintiff, a Captain in
the African Corps, against the defendant, a Lieutenant-Governor of Sene-
gambia, for imprisoning him for nine months at Gambia, in Africa. The
justification was under the Mutiny Act for disobedience of orders (not in
time of war), and the imprisonment was at first legal, but was aggravated by
many circumstances of cruelty. Lord Mansfieldsaid: ‘(In trying the
legality of acts done by military officers in the exercise of their duty, par-
ticularly beyond seas, where cases may occur without the possibility of
application for proper advice, great latitude ought to be allowed, and they
ought not to suffer for a slip of form, if their intention appears to have been
upright. It is the same as when complaints are brought against inferior
court magistrates, such as justices of the peace, for acts done by them in
the exercise of their court duty. The principal enquiry to be made by a
court of justice is, how the heart stood. And if there appears to be nothing
wrong there—great latitude will be allowed for misapprehension or mistake.
But, on the other hand, if the heart is wrong, if cruelty, malice, or oppression
appears to have occasioned or aggravated the imprisonment, or other injury
complained of, they shall not cover themselves with the thin veil of legal
forms, nor escape under the cover of justifiation, the most technically
regular, from the punishment which is due to so scandalous an abuse of
public trust.”

(b) The case of Sutherland v. Murray (cited by the Court of Error in
Johnstone v. Sutton, 1. R. 538), is, it was said, “strong to show that a
person representing the King in all functions, civil and military, where the
act complained of is expressly legal, shall answer for an abuse of his
authority. There the defendant was Governor of Minorca and Vice-Ad-
miral, and had maliciously, and without probable cause, suspended the
plaintiff, who recovered large damages.” But that was a Nisi Prius case,
and it was cited and upheld by a court whose judgment was reversed by
the House of Lords, so that it is of doubtful authority, and, moreover, even
if of good authority, (1) there the act which caused the mischief was the
Governor's own act, (2) it was in time of peace, (3) it was without reason-
able cause, (4) it was wilful and malicious. Liability, under the circumstance
of all these conditions is far from involving liability under conditions to
tally different, and, indeed, the opposite in every respect, and the judgment
of the Lords rather goes to negative it.
( 7)

tary, when the act complained of was done in time of
peace, and under the common law, shall answer, in a court
of law, for a wilful and malicious abuse of his authority,—
that is, where the act which has caused the injury was his
ownact, was without reasonable cause, and was also malicious.
But this does not apply, where the act was in time of war,
and the reasonableness of the cause itself is a matter more
or less military.

Even in such cases, however, a wide distinction is drawn
(a) between a time of war, mutiny, or rebellion, when cir-
cumstances may require, or excuse, under the idea of tem-
porary necessity, much that may be inexcusable, because in
no sense or view necessary ; and in ordinary times, when no
exceptional or extraordinary circumstances exist to disturb
the judgment ; and this bears more particularly upon the
question of excess, which is more or less a matter of degree.

(a) Thus, in the case just cited, Lord Mansfield said: ‘* The plaintiff having
really been guilty of a breach of discipline, and therefore, his imprison-
ment having been at first legal, was afterwards by circumstances wanton
cruelty. It is admitted that the plaintiff was to blame in leaving his post.
But there was no cnemy, no mutiny, no danger; his health was declining,
and he trusted to the mercy of the Government to consider the circum-
stances under which he acted. But, supposing it to have been the defend-
ant’s duty to call him to a military account for his misconduct, what apology
is there for denying him the use of the common air ina sultry climate, and
shutting him up in a gloomy prison, where there was no possibility of
bringing him to a trial for several months, there not being a sufficient
number of officers to form a court martial. These circumstances are
sufficient to presume a bad, malignant motive in the defendant, which
would destroy his justification, had it ever been within the power delegated
to the defendant by the commission.” Jbid. But then, (1) the act was
wholly illegal, (2) it was grossly and wantonly cruel, (3) it was the direct
act of the Governor, (4) it wasintime of peace. All which circumstances
are carefully dwelt upon by Lord Mansfield, so that no authority or analogy
can be deduced from this case to govern one in which the act is not the
direct act of the Governor, or is not wholly illegal, and is not in time of
peace but of rebellion, and is not, therefore, under common Jaw at all, and
is not wantonly and wickedly cruel. So, in the case of Governor Wall him-
self, tried for the murder of a soldier by flogging him to death; (1) it wasin
time of peace, (2) it was his personal act, (3) it was wickedly cruel and
intended to kill, so it was clearly a case of wilful and wicked murder,
( 77 )

It may be laid down safely, as a general principle (a),
which has been judicially established, that a person setting
or putting any kind of law in force, as a private person
giving another into custody, is only liable, even if his own
act turns out to have been illegal, for the usual and ordi-
nary consequences of it, and not for any criminal and
extraordinary cruelty or excess on the part of those who
personally carry out the law.

The state of martial law implying a state of war, the
rules and principles applicable to military authority in time
of war and not in time of peace prevail, and it may be
laid down (6) broadly that, under martial law, in time of
war or rebellion, flagrante belli, as it is called, or in the face
of the enemy, no act (at all events unless a criminal intent

(a) Thus, it has been held, that a person who illegally gives another into
custody, is liable for the usual and ordinary treatment of a prisoner in a
police cell, but not for any unusual and extraordinary cruelties inflicted by
the police, for which they, not he, must answer. (Edgell v. Frances, 1 M. and
G.) Thus, in one of those judicial decisions, soreasonable and sensible, so
based upon a general principle of natural justice, that it may be safely ap-
plied to the present question, and the inference may be deduced, that a
a Governor or Commander even putting martial law illegally in force, is
liable for such acts under it, as would be in accordance with military usage
in like cases, but not for any exceptional and criminal application of it by
wanton and wilful cruelty on the part of those who actually and personally
put it in force, for which they, not he, must answer. Inshort, he is liable
for his own acts (if illegal), not for theirs.

(6) This appears to have been laid down very broadly in the case of
Barwise v. Keppel, 2 Wilson’s rep., 317, where a serjeant, who had cer-
tainly fallen into a breach of military orders, only through neglect and
with no bad intent, for which a court martial inflicted a slight sentence on
the defendant, and his commanding officer ordered him to be broke or
reduced to the ranks, thinking that the neglect might have been attended
with the most bad consequences, for which the action was brought. But
the court declared he could not say that “the sentence was not warranted
by the Mutiny Act or Articles of War; for the Act by which the King’s
power to make Articles of War is limited, is confined to the King’s own
dominions; when his army is out of his dominions, he acts by virtue of his
prerogative, and without the act or the Articles of War, and, flagrante
belli, the common law has never interfered with the army. Inter arma
silent leges.” And Lawrence, J., afterwards oberves “ that was fagrante belli,
in face of the enemy.” (vide Warden v. Bailey, 4 Taunt rep. 67).
( 78 )

is proved), is civilly or criminally punishable in the exer-
cise of, in, or obedience to, military authority.

A similar principle (a) prevails in regard to naval warfare ;
the jurisdiction over all matters of prize, and everything
incidental to a capture, belongs exclusively to the prize
courts (which are quite different from the ordinary Admiralty
courts, and governed by different rules), and the question of
prize or no prize must be decided by these courts, and
cannot be tried at common law, so that no action lies for
the goods, nor even for false imprisonment of the persons
taken on board, even although the ship is acquitted ; for it
would be contrary to public policy to allow captors to be
punished by actions, as then no one would venture to cap-
ture a, ship.

The principle applies the more nearly, because all prize
courts, as courts of war, applyequallyto prizes taken by sea
or land, and the only difference between these and courts
martial is, that the former apply to the status of the pro-
perty, the other to the rights of the person ; and the juris-
diction of these courts is sole and exclusive in all cases of
capture by naval or military force. And so of courts martial,
within their jurisdiction, ordinary or extraordinary (6).

(a) Le Caux v. Eden, 2 Douglas, 594. In that case Lord Mansfield said :
“Tf an action would lie by the ownersand every man on board a ship, taken
as prize, against the captor, and every man on board his ship, no man
would dure to take a ship.” And the court confirmed that view, viz., that no
action at law would lie, either for imprisonment of the person or for the
capture of the vessel or goods, even although by the prize court the vessel
was acquitted, because where the injury was the necessary and natural
consequence of the capture, the prize court of the Admiralty had the sole
and exclusive jurisdiction, though there might be cases in which the courts
of law might have jurisdiction for personal ill-treatment, not the necessary
effect of the capture, as if the men were treated with unnecessary cruelty.
(Willes, J., Zoid, 600.) Prize courts in war appear to answer to courts
martial under martial law.

(0) Home v. Camden, 2 H. Blackst. rep. 533, 4 T. R. 382, 6 Parlia.
cases 203, where-the House of Lords held that the prize courts have sole-
and exclusive jurisdiction in these matters, and that the courts of common
law cannot interfere. ‘It belongs tothe King’s courts to restrain courts of
peculiar jurisdiction’ from exceeding their jurisdiction. And it is only
( 79 )

A state of martial law once established, involves a mili-
tary discretionary power in the authorities who are en-
trusted with its execution. The nearest analogy to a state
of martial law during rebellion, is the case of war, with
which it is in point of law identical; and it has been
solemnly held (a) by the highest legal tribunal in the
realm—the House of Lords—in the great leading case
upon the subject, that an abuse of an absolute discretionary
military authority, in time of war, cannot be the ground of
a proceeding in a court of law.

That, under martial law, on the one hand, the military

when the inferior court has to act upon the common law that the courts of
common law interfere in matters within their jurisdiction.” (Jbid, p. 536.)
No action, therefore, can be brought in courts of law on such matters.
(Duckworth v. Tucker, 2 Taunt. rep. 36.) And by parity of reasoning, no
civil or criminal suit for the honest exercise of military authority, ordinary
or extraordinary, within its jurisdiction.

(a) In the great case of Johnstone v. Sutton, 1 Term. rep. 548, which is
the leading case on the subject,and in which the judgments of Lord
Mansfield and Lord Loughborough were affirmed by the House of Lords, to
the following effect :—‘‘ That no action lies for the abuse of a military dis-
cretionary power in time of war, and that a court of common law, in such a
case, could not assume a jurisdiction ; that a Commander-in-Chief had a
discretionary power by the military code to arrest, suspend, and put upon
his trial, any man in his force ; and that a court martial alone could judge
of the charge. That if this power was abused, as it might be, to oppression,
the military law itself would afford a remedy or punishment, for a Com-
mander who should arrest, suspend, and put a man upon his trial without
probable cause, would be guilty of a breach of military law; but the same
jurisdiction which tried the original charge must try the question of pro-
bable cause, which was in effect a new trial of the case, and every reason
which required the original charge to be tried by a military jurisdiction,
equally held to try the probable cause by that jurisdiction, as it must tn
upon military considerations. Commanders ina day of battle (it was said)
must act upon delicate suspicion or open evidence of their own eyes ; they
must give desperate commands, they must require instantaneous obedience.
A military tribunal is capable of feeling all these circumstances, and under-
standing them ; but what condition will a commander be in, if, upon the
exercising of his authority, he is liable to be tried by a common law judi-
cature? Not knowing the law or the rules of evidence, no commander or
superior officer will dare to act.” All this, it is obvious, appears @ mullo

fortiori to martial law, ina case of rebellion, which, itis admitted, is, at the
best, a terrible thing to carry out.
( 80 )

authorities are justified in all means and measures, they
really deem necessary ; though not in wanton and unneces-
sary acts of cruelty, which from their nature they cannot have
really deemed necessary ; and that these means include
courts martial or other more summary means of enqury, in
which they are not bound by any formal rules, but only to
use the best means they can, under the existing circum-
stances, for the discovery of the truth, has been judicially
decided (a).

Even in ordinary times (0), and without any declaration
of martial law, if there is a mutiny, or reasonable ap-
prehension of it, from mutinous and insolent words on the

(a) In the case of Wright v. Fitzgerald, 29 State Trials, 760, which was
an action by a person against a civilian, a high-sheriff, by whose orders
he had been summarily and severely flogged, and without, so far as ap-
peared, any enquiry, or any reasonable belief of guilty complicity in the
rebellion. It was after the act of Parliament (vide ante p. 42). but it does
not appear to have been proved that martial law had been proclaimed, or
that any certificate had been given as by that act mentioned, that the act
was by military order, Nor did it appear that it was under any military
order, nor upon any enquiry. It was, however, taken probably as being
notorious, that martial law had been proclaimed. The Judge said it was
not to be supposed that the legislature, in enabling magistrates to justify
under the Act (vide ante, p. 43), had allowed them wantonly to exercise
power, even though it were to put down rebellion. “It expected that in all
cases there should bea grave and seriousexamination into the conduct of
the supposed criminal, and every act should show a mind intent to dis-
cover guilt, not to inflict torture before examination or trial ; hedid not
mean, he said, that sort of trial which took place at common law ; but the best
that the nature of the case and the existing circumstances would allow of.”
This shows that under martial Jaw courts martial are allowed to try
offenders, and are not bound by technical or ordinary rules, provided that
the prisoners are tried; but there was no trial in that case, and the man
was not really supposed to be guilty.

(6) The case of Governor Wall, 28 State Trials, 148, strongly illustrates
that. The Lord Chief Baron (Macdonald) in summing up, carefully
pointed out that there was neither war, nor mutiny, nor rebellion, nor even
mutinous words ; that it was like all other times; that there was not even so
much as a disrespectful word said ; that there was no trial, for there was no
hearing of the accused, nor any opportunity of defence; that he was ordered
to punishment behind his back, without even knowing that he was charged ;
that the punishment was excessive, and the expressions of the Governor
( 81 )

part of military persons,in the presence of others, sum-
mary military severity would be justified ; and even where
there has not been a mutiny, nor mutinous words, if a
Governor or Commander only acted under an erroneous
impression, and without wanton cruelty, or bad and mali-
cious motives, he would not be held liable merely for error
in judgment.

Nothing can be more clear, for it has been over and over
again recognized by the ablest law officers of the Crown (a),
and by judicial authority, that in a mutiny or rebellion, a
Governor may declare, or act under, martial law, and, on
summary enquiry before courts in the nature of courts
martial, but not bound even by the ordinary rules of mili-

tary law, still less by the stricter rules of the common law,
inflict severe chastisement.

Courts of law (6), not less than military law, recognize

such as to show a bad and wicked malice, which the Judge explains would
constitute malice in law, and make an act not legally justifiable murder,
The Attorney-General (Lord Ellenborough) in that case expressly admit-
ted that if there had been a mutiny, the Governor might have been justified
in inflicting a most severe punishment, without formal trial ; but his case
was, that there was no mutiny, and that the act was a murder under the
colour and pretence of mutiny.

(a) In the case of Governor Wall, 28 St. Trial, 56, Mr. Law, the
Attorney-General (afterwards Lord Ellenborough), said, in opening the
prosecution: adverting to the defence, which was the existence of a mutiny
necessary to be repressed by the infliction of such a punishment as had
been inflicted on the deceased, who had been literally flogged to death in
the presence of, and under the personal orders’ and express directions of,
the Governor: “I admit, to a great degree, the validity of that excuse,
if the foundation for it did exist in point of fact, and if there did exist a
mutiny which required the strong arm of power to repress, if it was s0
dangerous in its probable and immediate consequences as to supersede the
ordinary power of trial for such offences ;” but his case was, that there was no
mutiny, and not only so, but that it was a mere colour and pretence, to enable
the Governor to inflict unauthorized punishment on an object of his ven-

geance, and that there was no trial at all, and no real offence ; while,
on the other hand, the punishment was murderous and intentionally so.

(6) Thus in Governor Wall’s case, 28, St. Trial, 154, the Lord Chief Baron,
commenting on the evidence’ of a witness who stated that he knew what
drum-head courts-martial were, but that in the case in question the prisoner
was not allowed to make any defence, said, ‘‘I suppose drum-head courts-

G
( 82 )

for military persons or persons under martial law, in times
of mutiny, or rebellion, or war, what are called in military
language “ drum-head courts-martial,” at which, when the
danger is so great and pressing that the ordinary mode of
summary courts-martial cannot be followed, so many officers
as can be got together are assembled hastily, and are autho-
rized to proceed summarily, without any other inquiry than
the best they can make under the circumstances,

The principle which has been judicially established is, that
if there is a mutiny or rebellion, persons under military law
(as all persons are under martial law), may be dealt with
summarily and severely ; and that even if the matter can be
brought before a court of law at all, in a criminal prosecu-
tion against the Governor or Commander, it cau only be so
in a case in which he has personally ordered the punishment
without any trial or enquiry, and with actual malice,
or bad motive (a).

martial mean that when the alarm is such, and the danger is so great, that
the regular mode of summoning courts-martial cannot be followed, so many
officers as are upon the spot are to be summoned together; but that they
are not to proceed, altogether without any regard to the interest of the
prisoner, though they may not proceed exactly according to the dircctions
laid down in the Articles of War.” A drum-head court-martial is suddenly
called, and as well formed as circumstances will admit of, upon the plea
of necessity. The present purpose has to do with the law, and not the
facts, but the facts of that case are a salutary warning in more ways than
one; for, on the one hand, the excessive degree of the punishment, and the
weapons used, and the personal part taken by the Governor in it, all
tended to show that he was acting under feelings of revenge ; and, on the
other hand, a close scrutiny of the evidence of the witnesses against him
(who, it will be observed, if the mutiny existed, were themselves implicated
in it), will convince any one that there was a mutiny; that the sentry
pointed a bayonet at the Governor’s breast ; that there was uw trial; and
that the deceased was the ringleader. The jury, however, found otherwise,
and that finding rules the law, but this case is a great warning not to
credit too easily complaints against a Governor who has proceeded with
severity.

(a) Thus in the case of Governor Wall, 28 St. Trial, 127, the Lord Chief
Baron left to the jury whether there had been a mutiny or not; such a
mutiny as would put a good officer, a man of common firmness, into such a
state of alarm as would make extraordinary measures necessary to quench
( 83 )

It is manifest (a), that this power extends to trial and
punishment for offences already committed, and not
merely to resistance or repression of present acts of mutiny
or rebellion, for otherwise martial law would not differ
from ordinary law, and it is distinctly laid down that per-
sons under martial law, i.¢., in case of mutiny or rebellion,
may be summarily tried and convicted, without even the
ordinary forms of military law, and with only such
inquiry, whether by court-martial or otherwise, as the
circumstances admit of; and if by court-martial, then by
such evidence as can be obtained.

the fire instantly by overthrowing it in the speediest way that he possibly
could; and he told them that if there was no such mutiny, and if there was
no court-martial or trial of any kind, and the deceased was, by the direct
order of the Governor, sentenced to an excessive punishment, inflicted by
his personal order, in an unusual and cruel manner likely to cause death,
then the jury might infer malice, which would make it murder. It is
needless to point out how entirely different such a case is from one where
there is a mutiny or rebellion, and martial law has been lawfully pro-
claimed, and the Governor has not personally interfered, beyond putting a
man on his trial, and there is no pretence for inferring malice; however, it
must be borne in mind that were it not for the personal directions, the
absence of any trial and the presence of violent malice, it would be doubtful
whether the questions of mutiny or nomutiny, rebellion or no rebellion, would
be for a jury, seeing that it is a question on which the Governor is bound
to form his judgment, and it might depend upon circumstances, of which a
jury could not judge, and this seems implied in the judgment of Lord
Mansfield, in the case of Johnston v. Sutton, 1 T. R., for circumstances might,
in the judgment of military men, amount to mutiny, which a jury
might not so consider, and it would be monstrous to make a man’s liability
for murder depend upon an error in the honest exercise of judgment ; but
the jury thought in Wall’s case that there was no judgment exercised, and
that it was all a mere pretence.

(a) Thus the Lord Chief Baron, in Wall’s case, said, if there was no
mutiny, and if there was such a court-martial as could be had, if there were
reasonable notice to the man, that he was charged, and if he was called
upon for his defence, and if there was an opportunity given him of defend-
ing himself if he could, and there was as much attention to his interest as
the circumstances of the case would admit of, then the defence would be
made out; and the Attorney-General put it that it would suffice if it were
shown, supposing a mutiny, that the ordinary mode of trial could not
be resorted to, and that, upon conference with his officers, the Commander

a2
( 84 )

All that is necessary in case of actual mutiny, or even the
imminent peril of it, if really formidable, is, that there shall
be the observance of those rules of common justice and
humanity, which are universally obligatory, which are
independent of all positive laws or forms, and the wilful,
non-observance of which indicates a bad motive, not an
honest intention to do what is right and really necessary (a).
And a similar principle applies to the case of a rebellion.

It seems self-evident (a), that, when martial law has once
been lawfully declared and established, to render a person
legally liable, criminally or civilly, for acts they have done
or ordered under it, the acts must not only be such acts as are
offences by military law, as beyond and in excess of martial

did that which on the emergency was thought best to be done, but that, in
point of fact, there was no trial, not the very loosest; no trial of any kind,
and not only no crime, but no belief in it.

(a) Thus the Attorney-General in Wall’s case (28 St. Trial, 591). said there
may be circumstances which may constitute a sufficient defence for a
military officer in the infliction of punishment, without either a regimental
or general court-martial; for if there be that degree of imminent necessity
existing which supersedes the recourse to any ordinary tribunal ; if there be
actually that flagrant mutiny which must either be repressed with force, and
by the immediate, though irregular application of severe punishment, or
must be left to rage uncontrolled, at the utmost peril of public rights; that
which is irregular, becomes, if that which is regular cannot be resorted to,
itself regular and capable of being justified upon every principle of public
duty, for it imports the public safety that the means of resisting an enormous
and overbearing evil should be as strong, sudden, and capable of application,
as the evil itself is capable of immediate, mischievous effect; but if it
appears that there was no mutiny and no crime, and no trial, and that in
addition to that there was malignity of motive, then the case leads to the
contrary conclusion.

(0) For it is a general principle that the criminality or culpability of an act
is determined by the Jaw prevailing at the place and time where it was com-
mitted ; hence the doctrine as to the lex loci, which applies to torts as well as
to contracts, for an act may be justifiable by the law of the place where it was
done; hence the legal principle that “ crime is local,” which was laid down
in a case of an act done by a Governor abroad (Raphael v. Verelest, 1 Wm.
Blacks. rep. And see Mure v. Kay, 4 Taunt., per Heath, J.) The trial may
be here, either at common Jaw (Mostyn v. Fabrigas, Cowp.) or by statute, as
by the 42 Geo. III, c. 85, in the case of foreign Governors, but the law is
local; a principle, obviously, most important in criminal matters. There is
( 85 )

law, as contrary to military usage, or without military
authority, but really wnder colour of martial law.

It follows from these premises (a), that all the officers
and men employed in the service are amenable only to
military discipline and military law, and are justified in
acting on the orders they receive, whether particular and
specific, or general, in accordance with military usage and
discipline, though, even as to their acts, without, or beyond
orders, they may be justified, if at all, by the common law
right of self-defence, or resistance of actual outrage, or
apprehension of offenders.

There are many cases (b) in which officers have been held

something monstrous in calling upon a man to act under one law, and
then trying him by another. The controlling power of eourts is what is
only to keep them within their jurisdiction (Grant v. Gould, 2 Hen. Blackst.
rep. 97.) Within the jurisdiction of martial law it is as much a law or
rule, while it prevails, as any other special or peculiar law, and persons
who act under it must be tried by it.

(a) It is so declared by Parliament, in the Irish Act, which allowed
the exercise of martial law without declaring it, and whether or not it could
be legally declared; distinctly affirming the common law prerogative
of the Crown to declare it when it may lawfully be declared, z.c., in a case
of rebellion. It is there distinctly enacted, of the exercise of martial law
under the statutable power, that, as stated in the text, the military were to
be deemed justified by their orders, and it would be absurd to sup-
pose that they would be left unjustified in acting on their orders under
martial law, when declared by the common law power which the act ex-
pressly recognizes.

(b) As in the case of Wall v. Macnamara, 1 Term Reports, 536, and the
cases there cited. Governor Wall, the plaintiff in that case, was afterwards
hanged for flogging a soldier to death, but therea murderous intent was
proved ; and it was really a murder under colour of a sentence. So ina case
cited by Heath, J. W. 4 Taunt. Rep. 70, where an action was brought
against the officers of the Devon Militia for inflicting 1,000 lashes, in con-
sequence of the sentence of court-martial for a pretended mutinous act,
which was not mutinous at all. In that case, Heath, J., said that if the man
had died under the lash, all the members of the ‘court-martial would have
been liable 10 be hanged. 7.77. But there were cases of illegal punish-
ment under ordinary law, and merely under colour of military authority.
So in Frye v. Ogle, 4 Macarthur on Court Martial, p. 269, the plaintiff had
been guilty of no offence at all. (Laurence, Ji4 Taunt. 56). So in Warden
y. Bailey, 4 Taunt. 60, where no mutinous expressions were heard, and no
military offence committed ; and it was in time of peace.
( 86 )

liable for flogging, arrests, imprisonments, or other punish-
ments illegally inflicted, but then they have all been cases
in which the persons so punished were not subject to their
authority, either generally or in respect of the particular
subject matter, or there was a felonious or malicious intent,
and they were, moreover, all cases of regular military law,
and not of martial law, properly so called.

It is to be carefully borne in mind (a), and is material
for those who, in different ways, direct or carry martial law
out, as well as for those who may be under it, that although
the effect is to place the district under military government,
even military government has its rules and usages ; and, on
the one hand, those who carry out martial law must not
wantonly act contrary to those usages; and, on the other
hand, if they do so, they are personally liable (whether at
common law, or to military law), not those who merely
directed them to carry out martial law.

For example, there are certainly two general and funda-
mental rules, which must be obligatory in the carrying
out of martiallaw. The first is (0), that being, as the name

(a) That this is so, is known to every lawyer, and every officer, and every
reader of works on military law or court-martial. These rules and usages:
no doubt, in time of war or rebellion, are not so precise and definite as in
time of peace; but still there are rules and usages, as will be found
expressed by the orders issued in the Jamaica case ; as, for instance, (1) that
no persons must act except under military orders, (2) that there must be no
unnecessary or wanton cruelty, (3) that non-combatants are not to be
injured ; and to this it may be added, that the rules of natural justice are
of universal obligation, except as far as an imperious present and over-
whelming necessity precludes their observance.

(6) This appears an obvious inference or consequence from the very
nature of martial law itself; for it implies the establishment of military
government or authority, which is quite absolute. How, then, can any one
be entitled to act under it (except as above stated) of his own mere mo-
tion, without any orders? There may be exceptions arising from the
exigencies of military service, but they are exceptions; and the general
rule, that in military service, no one must act without orders, is fundamental.
This is as important for those who give as for those who obey orders; for
those who carry out martial law, as for those who may be placed under it.
For it is remarkable that few, if any, instances of excess or cruelty can be
( 87 )

implies, military government, no person (except only in
self-defence, or resistance of actual violence, or arrest of
known or suspected offenders,) is entitled to act under
martial law except under military orders.

It may be safely laid down (a), that, in carrying out mar-
tial law, those great principles of natural Justice, which are
of universal obligation, must not be disregarded ; and these
appear to dictate that no man shall be put to death in self-
defence, unless taken “ red handed,” nor without the most
careful inquiry that can be made under the cirtumstances ;
though, as regards the latter, it must, more or less, as the
proposition implies, depend on circumstances, and it does
not follow that the officer, who fails to observe it fully, is
culpable, or criminal.

It is to be observed that, although the effect of martial
law is to put the district under military rule, and to render

found to have been committed under martial law, by military men, acting
under military orders; those cruelties or excesses are generally perpetrated
either by volunteers, or by private soldiers, without, or against authority.

(a) It is undoubtedly true that in cases of mere removal from an office
—if there is a discretionary power of removal, as distinguished from one for
good cause—it is not necessary to show a good cause, or to hear the party
in his defence, because he has no legal right ; and the discretionary power
may be exercised on grounds quite apart from any fault or offence. But it
is quite different in cases which affect life or limb; and it may surely be
Jaid down, that even admitting, as is no doubt the case, martial lav means
an absolute discretionary military authority, that authority ought not to
be exercised to the extent of putting one to death, or even of bodily punish-
ment, except either they are taken “red-handed,” or with such circum-
stances as amount to sensible, present proof (as muskets hot, hands black-
ened with powder, possession of arms, plunder, &c.), nor without hearing
them in defence, and making the best inquiry possible under the circum-
stances. No doubt, the latter is a large qualification, and it is advisedly so
stated, and, it is considered, necessarily so ; because it must be borne in mind
throughout, that the scope of martial law is not so much guilt, or
guilty intent, as actual mischief and danger; and then it may be necessary,
under pressure of military exigency, to execute or punish men without
much inquiry, often without any, beyond hearing their defence, and looking
at the circumstances. And it is conceived that whether under such cir-
cumstances there has been a culpable disregard of the principle, is a ques-
tion for a military tribunal, unless there is evidence of malice.
( 88 )

all the population liable to be treated as soldiers, or even
as rebels (a), it by no means follows, therefore, that
they are all liable, indiscriminately, to capital execution, or
for any summary punishment ; and it remains a question, .
in each case, under the circumstances, what military exi-
gency requires or justifies ; though this, it is conceived, is a
purely military question.

Under martial law, those engaged in its execution must
act under orders, and under military authority. This prin-
ciple, indeed, has a double aspect (b), and twofold applica-
tion. It binds those who profess to act under martial law,
and it is for the benefit and protection of those who are
under it. For those who are under it must take care that
(except as to self-defence, or resistance of actual violence,
or arrest of offenders,) they act under military orders, and if
they act without orders, or against orders, they act at their
peril ; for it is not everything done during martial law
which is done under it.

(a) The proposition is differently stated. Simmons puts it, as “sol-
diers.” General Nelson, the officer commanding in the field in Jamaica,
put it, that they were primd facie enemies, Probably both meant the
same thing; and the difference is not substantial, when it is borne in mind
that persons may be dealt with summarily under martial law, on the theory
that they are soldiers, and in astate of war ; and that, therefore, persons taken
prisoners (as they certainly would not be if actively loyal, or in direct ad-
herence to the Government), must, at all events, have been neutral; and in re-
bellion, and under martial law, neutrality is criminal. It is an offence even
at common law to refuse to assist in putting down a riot or actual rebel-
lion (vide ante), and under martial Jaw, as, the mere concealment of a
rebellious design is capital; the offence is, of course, far more serious, and
is primd facie proof of complicity in the rebellion, for loyal men always
rally round the authorities on such occasions.

(b) It is as important for the protection of those who are under martial
law, as for those who carry it out; for, on the one hand, military men are
more conversant with military usages, and'more under the control of a sense
of what is due to the honour of their service, and less likely to be carried
away by local resentment and partisan feelings, or temporary excitement,
than armed civilians, who may be acting as volunteers. It is well known
that most barbarities and cruelties, committed during martial law, have
been committed by civilians or other volunteers. The fact is, military men
are accustomed to the use of arms, and to the use of arms against armed
men, and they are not unduly excited when called upon to act in the sup-
( 89 )

It is to be remembered that soldiers, or others acting
under martial law, can only justify their acts by orders, or
by self-defence, or the common law right to resist actual
Tiot or rebellion. But soldiers have all the rights of citizens,
whether under martial law or otherwise, in self-defence, or
in resistance of riot or actual rebellion, and may kill any
one actually engaged in felonious outrage, or in a felonious
assembly, and refusing to disperse ; or may arrest any one
who has been guilty of felony, and who refuses to surrender.
Apart from that, however, all persons acting in the execu-
tion of martial law must justify themselves by orders,
either general or special, express or implied (a).

It follows, from these premises, that prisoners taken, unless
liable to be shot at once, as taken red-handed (and that
should be by order of. officers), must be tried by court
martial. Ofcourse, if prisoners are made (0) as they must be

pression of rebellion; on the contrary, they have rather a repugnance to
act except against men armed, and in the field. It is, therefore, exceed-
ingly important, for the protection of the population, in a district placed
under martial law, that no one should act except under military orders and
under military command. To allow civilians to act without control is to
open a dangerous door to revenge and retaliation, prompted by personal
feelings or angry passions. In the Jamaica case, the commanding officers
were fully aware of this, and issued very sensible orders on the subject.

(a) A soldier is gifted with all the rights of other citizens, and is bound
to all the duties, and he is therefore as much bound to prevent a breach of
the peace or a felony as any other person. If it be necessary for the purpose
of preventing mischief, or for the execution of the law, it is not only the
right of soldiers, but it is their duty, to exert themselves in assisting the
execution of a legal process, or to prevent any crime or mischief being com-
mttted. (Burdett (Bart.) v. Abbott, 4Taunt. 449. And see 8. C. 5 Dow,
165; 14 East, 1, 254.) It is obvious that martial law must go further than
this, for this is common law, But then, onthe other hand, by military law,
men can only justify themselves by orders. Hence it is that the exercise of
martial law is always under military orders.

(b) Hence the Queen’s regulations expressly provide that, no persons
shall be kept in custody more than forty-eight hours without their cases
being disposed of, that is, by their being released or tried by court mar-
tial. And though, under martial law, the Queen’s regulations are not
necessarily binding, this particular one is obviously applicable, @ /ortiord in
a case of war or rebellion. (See the evidence of the Brigadier in command
in Jamaica, given before the Royal commission, post.)
( 90 )

made, they must be disposed of in some way or other, and
by some mode of inquiry, or they will speedily accumulate
so as to hamper the military force in occupation of the
country ; the prisons being probably soon filled to over-
flowing, or perhaps no prison available, and the force re-
quired to guard them, or the provisions to support them,
raising a case of military exigency. And they can only be
disposed of, under military law, by court-martial.

The measures taken under martial law are of course
military (a), for it is military rule which prevails; but
they may range under one or other of these heads—they
may either be executive, and operative, or of the nature of
service in the field ; or they may be quasi judicial, and be the
administration of military justice under courts-martial. Both
alike emanate from and are amenable to military authority
alone, provided military orders are honestly given and
honestly acted upon.

Courts-martial under martial law are as fully and as truly
lawful tribunals (assuming martial law to have been law-
fully declared), as”the Courts of Assize (b). They are
equally held under the authority of commissions emanating

(a) Vide ante. It is essential to bear in mind, in considering the means
and measures adopted under martial law, that itis purely military, and
under military authority. It is only incidentally, and as measures merely
of precaution, to prevent mistakes, that anything which has the character
of inquiry or judicial determination, is resorted to. There is no obligation
to adopt any of the ordinary rules of common law, as to proof, or
trial, or other matters of procedure. The only criterion is military usage,
that is, the custom of the army in like cases. It is no law; it is arbitrary
military rule and discipline, subject to natural justice.

(6) The Commissions of Assize are only temporary. The only differ-
ence between them and the Commissions under which courts-martial are held,
is "that the former are superior courts of regular character, whereas the
others are ofinferior and irregular character. In the former the commissions
being directly from the Crown to the Judges, in the other being indirectly
through the medium of the Commander-in-Chief of the forces, who issues
his authority to other officers to hold courts-martial. But his commission,
which carries with it authority to do so, emanates from the Crown, the
fountain of all justice and authority, civil and military, and it is certainly

true, that the courts-martial are as much lawful tribunals as any in the
realm.
( 91)

from the Crown; the commissions of Lord Lieutenant,
Captain General, and Commander-in-Chief of any county,
colony, or dependency, carrying with it authority to hold
courts-martial, in these countries, under the Mutiny Act,
and, abroad, by force of the royal prerogative.

The Petition of Right distinctly states that there
may be summary executions by military law, and it is a
matter entirely of military usage or of natural justice (a),
how far and in what degree enquiry is necessary.
As matter of military usage, those who are taken red-
handed, as it is called, with arms in their hands, with mus-
kets hot, or hands blackened with powder, or in possession
of plunder, or the like, may be summarily dealt with.

As regards any actsof the governor, or any military com-
mander, in sending a person under martial law before a
court-martial for trial, it is too clear to admit of argument
or doubt (0) that, whatever the result, the Governor or
Commander cannot possibly be liable legally for it. For it

(a) The rules of natural justice are of universal obligation, and in no
case ought a prisoner to be denied a hearing, however much appearances
may be against the prisoner. Lord Hale points out how the recent pos-
session of stolen goods, though raising a presumption of guilt, is not con-
clusive, and has led to false conclusions. But, on the other hand, when the
presumption is against the prisoner, and he can give no explanation, nor
vouch any one to prove his innocence, the analogies of common law would
warrant the infliction of summary justice by martial law (vide R. v. Burdett,
4B & Ald., as to presumptive proof.)

(6) Thus Lord Hale says, “If an indictment be found by a grand jury,
the prisoner will not be bound to show probable cause, but the plaintiff
will be constrained to show malice and iniquity in the prosecution.”
(Saville v. Roberts, 1 Lord Raymond’s rep. 374.) The true grounds of these
sorts of actions are the plaintiff ’s innocence, and the fact that it was not an
honest prosecution of justice, and a mere mistake, but that it was done in
downright malice, that is, wickedly and without any cause” (Parker, C. J.,
Jones v. Gwyn, 1 Wils. rep.) Andif a court has convicted the party, it
is impossible to maintain that the prosecution was without reasonable cause,
even though the conviction be reversed on appeal, unless the court can
be fixed with malice, and, even then, the prosecutor must also be fixed with
it, in order to render him liable. (Reynolds v. Kennedy, 1 Wils. rep. 232.)
If there is a conviction by a court, the mere approval of it by the Governor
could not make him liable for it, unless there was a conspiracy.
( 92 )

is a well-settled and fundamental principle of our law that,
no one instituting a prosecution is liable, even on an ac-
quittal, unless the proceeding be on his part, not only with-
out any reasonable cause, but also malicious and wicked.
And upon a conviction he cannot be liable, for it is an act
of the court.

And even as to regular and ordinary courts-martial (a),
which have jurisdiction only over military persons and
military offences, their proceedings are only subject to the
control of the superior courts, for the purpose of preventing
them from exceeding their jurisdiction, ¢.¢. exercising it
over persons or matters other than military; and the
superior courts cannot interfere, if the courts-martial has
kept within its jurisdiction, however erroneous.

It is undoubtedly true (a) that a soldier or officer is liable
civilly or criminally for any act not legally justifiable, as, for
summary arrests or executions not justified by common
law, and without martial law, or for exercising military
authority over persons not subject to it, ether by reason of
their not being military persons, or of martial law not
having been declared ; but that is quite different from a
lability for obeying orders under martial law, or under
ordinary military law.

(2) Grant v. Gould, 2 H. Blackstone’s rep. 69. Thus, for instance, it is
a question for the superior courts, whether a person is a soldier, or whether
the offence charged is within the jurisdiction of the court-martial. (Mann
v. Owens, 9 B & C. 595.) If the person is a military man and the offence is
a military offence, the courts of law cannot interfere (Re Poe, 5 B. & Ald,
and Re Mansergh, 1 B. & S.) This being so, even in regular courts.martial,
conducted according to regular military law, under the Mutiny Act and
Articles of War, a fortiori it is so of extraordinary courts martial, under
the martial law.

(2) Thus an action lies for an inferior military officer against his superior
officer (both being under martial Jaw), who imprisons him for disobedience
to an order made under colour, but not within the scope of military autho-
rity; although the imprisonment be followed by a trial by a court-martial.
(Warden v. Bailey, 4 Taunt. 67. And see §. C. (in error), nom. Bailey v.
Warden, 4M. & 8. 400.) In trespass against the adjutant of a regiment of
local militia, for arresting and imprisoning a serjeant in the same regiment,
upon a charge of unsoldier-like conduct, in exciting disobedience and
( 98° )

It has been held, however, that even in time of peace,
and under ordinary military rule(a), there may be an
offence against military law in mutinous or seditious words
calculated to excite disaffection, even though spoken of
orders, which in strictness the officer had no right to make.

To this it may be added (6), that the Mutiny Act, re-

mutiny ; if the imprisonment be continued by the defendant, in pursuance
of orders from the commanding officer of the regiment, the action lies;
unless the continuance of it be justifiable on the part of the commanding
officer ; and such continuance was held to be justifiable where it was in
order to bring the plaintiff to a general court-martial, for uttering words in
the presence of several serjeants and others of the same regiment, amount-
ing to disorderly conduct on the part of plaintiff, to the prejudice of good
order and military discipline, within the 24th section of the Articles of
War, art. 2, although the words uttered referred to an order made by the
commanding officer, which he was not strictly competent to make, and
although the plaintiff was acquitted by the sentence of the court-martial.
Jb. Thus the court-martial had acquitted the plaintiff, yet a court of error
held the defendant justified in arresting him, because there was reasonable
and probable cause for the charge, and the plaintiff was under his
autbority.

(a) Thus, in the case just cited being carried to a court of error, it was
held that the plaintiff having spoken mutinous words in the presence of
other soldiers, was not the less liable to court-martial, because the’order to
which the words referred was not valid ; for it was said, “‘ there may be dis-
orderly conduct to the prejudice of good order and military discipline in
the manner and terms used by one soldier in dissuading another not to
obey an order not strictly legal. If any erroneous order on the part of a
commanding officer would not only justify the disobedience of it by the
soldier, but would justify him in making inflammatory and reproachful
public comments upon it to his fellow soldiers—is it possible that military
order and discipline could be maintained? (Bailey v. Warden, 4M. &
Selwyn. rep. 410.)

(b) By the Mutiny Act, the king may make articles of war, and constitute
courts-martial, with power to try and punish, as well in Great Britain, &.
as in Gibraltar, &c. By a subsequent clause no soldier shall, by such
Articles of War, be subject to the punishment of death, or loss of limb,
within Great Britain, &c. (omitting Gibraltar) for any crime not expressed
to be so punishable by the act. Then, by the Articles of War, persons found
guilty by a court-martial at Gibraltar, of theft, robbery, &e., or of having
used violence, or committed any offence against the persons or property of
others, “ shall suffer death, or such punishment, according to the nature
and degree of the offence, as by the sentence of such court-martial shall be
awarded :—Held, that a court-martial had a discretionary power by such
( 94 )

stricting courts-martial to the capital offences enumerated
in the act or the Articles of War does not apply abroad,
where the Petition of Right does not extend, and there is no
limitation of the royal prerogative in this respect, so that
military persons under ordinary military law, or all persons
under martial law, may be punished, even capitally, for
offences not contained in that rule or the Articles of War.

When a Governor or Commander has put a man upon his
trial by court-martial (a), even although he is acquitted of
the charge, the Governor or Commander is not legally liable
unless he knew that the man was not guilty; and if the
court convict, he cannot be liable criminally in a court of
common law, because the conviction is their act, not his, and
they, on the same principle, even if legally liable at all, can
only be so, if they knew him to be innocent.

words, and were not restricted to pasa such sentence on a delinquent as
would be warranted by the law of England, And that a return to a habeas
corpus, stating that upon a charge against the defendant before such a
court, for an offence alleged to have been committed by him at Gibraltar,
such proceedings were had, that the court-martial, after hearing the charge
and the defence, found the defendant guilty, and sentenced him to trans-
portation for fourteen years, was good. (Rex v. Suddis,1 Hast, 306.) That
the Chief Commander in a colony can convene courts-martial (vide Brad-
ley v. Arthur 6 B. & C. 292),

(a) This was the view upheld by the Court of Error, which decided in the
case of Johnstone v. Sutton, 1 T. R. 503, in favour of the legal liability in
such cases, and whose judgment was reversed by the Lords in the particular
cases, therefore it represents the strongest view that could be possibly taken of
legal liability in such cases. There the man was acquitted ; and the court
of error said that “ the proposition that a Commander-in-chief had a privilege
to bring an officer or soldier to court-martial for an offence which he knows
him to be innocent of, and under colour of his power, is too monstrous to be
entertained ;” which may be, and yet he may not be legally liable, except
upon acriminal information, ora court-martial, as the House of Lords
seemed to think. The case supposed, however, was of a man known to be in-
nocent. And the court go on to say that they are not prepared to say that
a person who should indict another for murder, knowing that the other had
a justification for the act, would be guilty of murder, because after all it was
for the accused to set up the justification, and it was to be supposed that the

court would give due effect to it, and if they did not, it would not be the
fault of the prosecutor.
( 95 )

’

And it is a general principle (a) that whatever the
amount of culpability involved in putting a man lawfully
upon his trial (if the judges of the court are not unduly
coerced) the person who has so put the party upon his trial
cannot be legally liable for conviction by the court, however
erroneous the verdict or judgment, or however defective the
evidence ; nor for the approval or execution of the sentence,
unless, at all events, it is so apparent that there was no
evidence that a conspiracy to commit an act of wilful and
malicious injustice can be presumed.

In the same great case (5), it was also settled, that as-
suming jurisdiction, even after a person has been acquitted

(a) This was illustrated, in the strongest possible way, in the case of the
miscreants who conspired together to indict and put upon their trial inno-
cent persons for capital offences, which they themselves proved by false or
perjured evidence; so that the innocent men, by this means, were thus
actually convicted and executed; the object being to obtain rewards
offered for conviction of offences. The wretches were indicted for murder
and convicted, but the judges could not hold that it was murder, their act,
guilty as it was, not being the direct cause of the convictions, seeing that
thejury intervened. (See the case reported R. v. Macdaniel, 2 Leach.Cro.Cas.)
This clearly shows that a Governor or Commander who did put upon his
trial a person he knew to be innocent would not be guilty of murder, unless
perhaps by reason of his execution of the sentence ; but certainly not, unless
he knew him to be innocent.

(6) “ There is no similitude or analogy between an action of trespass or
false imprisonment and this kind of action. An action of trespass is for
the defendants having done that which, upon the stating of it, is manifestly
illegal. This kind of action is for a prosecution which, upon the stating of
it, is manifestly legal.” [That is assuming jurisdiction.] “The essential
ground of the action is that a legal prosecution was carried on without a
probable cause. From the want of probable cause malice may be, and most
commonly is, implied. The knowledge of the defendant is also implied.
From the most express malice, however, the want of probable cause cannot
be implied. A man, from a malicious motive, may take up a prosecution for
real guilt, or he may from circumstances which he really believes, proceed
upon apparent guilt ; and in neither case is he liable to this kind of action.
Whether there was probable cause was a question of fact, and in a military
case it must more or less depend upon military judgment and be open to a
variety of opinions. And under such circumstances, if there are such facts
as that military men in like circumstances considered the person liable,
there is probable cause.” (Sutton v. Johnstone, 1 Term Reports, 546.)
( 96 )

on a trial by court-martial, he cannot sue the Commander
_ who summarily arrested and suspended him and put upon
his trial, unless there not only was no reasonable and
probable cause, but also malice or bad motive, and of
course, & mullo fortiori, if the court-martial convicted he
could not be liable at all, for the conviction is their act ; nor
they, because their function is judicial.

So large is the scope of military law (a), even in ordinary
and regular military law in times of peace, and in this
country, that it has been held, and by a court of error, that
a person under military law may be liable to be put upon
his trial before a court-martial for insubordinate conduct, or
mutinous and seditious words, even directed against an
order made without authority, and that, even although on
that ground the person is acquitted, he has no legal
remedy, because the seditious words or conduct would be
probable ground for putting him upon his trial.

The Governor-General, or Commander, who sends a man
to trial by court-martial, clearly is not liable, even on
acquittal, still less on conviction, which is their act, not
his. And the members of the court cannot be liable, for their
duty is judicial, unless, indeed, there was no real trial at all,
and it was merely colourable, and not very probable. The

(a) Bailey v. Warden, 4 M. & S., in a court of error, where the doctrines
above stated were laid down under circumstances exceedingly strong. The
commanding officer made an order he had no right to make, and a military
person, in the presence of others, spoke in violent and disrespectful terms
against it; he was put upon trial before a court-martial and acquitted:
he then brought his action for his arrest, suspension, and imprisonment,
on the voyage, but it was held that he could not recover, because although
the order was illegal, his seditious words about it were sufficient probable
cause for the proseeution. It follows that if the court-martial had con-
victed him of seditious and mutinous language, the conviction would have
been legal ; and, in time of war, it would have been capital. So that the deci-
sion of the court of error really came to this, that a person under military law
may be convicted of seditious words, which in time of war is a capital
offence, even against an order which is unwarranted by military law, the

remedy of the party being to appeal to military law against it, not to use
seditious language.
( 97 )

officers sitting upon courts-martial would be entitled to
that immunity, within their jurisdiction, which attaches to
inferior judges, and even to magistrates (a), in the execu-
tion of their judicial duties, especially in judging of the
facts, and of the force and effect of evidence. It would not,
therefore, matter how much they might honestly err, nor that
they apparently convicted persons who afterwards turned
out to be innocent, especially as they would not be bound
by the strict rules of legal evidence,

Judges and jurors, in the regular courts of justice (b), are

(a) Justices of the Peace are not punishable civilly for acts done by them
in their judicial capacity ; but if they abuse their authority, they may be
punished criminally at the suit of the King, by way of information, for
regularly no man is liable even to an action for what he does as Judge.
(Hawkins’ Pleas, Crown, c. 8,8. 74.) If he acts maliciously, indeed, without
a charge or information, he is liable (Morgan v. Hughes, 2 T. N., 228).
But they can only judge on the facts laid before them, and if those facts
give them jurisdiction they are not liable (Lowther v. Lord Radnor, 8
East. 173.) If when a charge is before a magistrate, he does not exceed his
jurisdiction he is not liable to action (Mills v. Collet, 6 Bing. 93). It is
for him to judge as to the effect of the evidence and the course to be taken
(Cave v. Mountain, 1 M. & G.), and it is no ground for holding them liable,
that they form an erroneous judgment upon the facts proved before them,
or as to what facts were proved, or as to the mode of proving. Noaction
will lie against a magistrate for anything done by him in the discharge of
his judicial duty, without proof of actual malice or ill-feeling, or bad
evidence (Linford v. Fitzroy, 18 Q. B. rep. 230.)

(6) In the case of Judges and jurors they are not liable, because the law
gives faith and credence for what they do, and therefore there must always,
in what they do, be cause for it, and there never can be any malice in what
they do. The presumption of law is, that Judges and jurors do nothing
causelessly and maliciously, which docs not derogate from the principle
that, where itcan be shown that one man has causelessly and malictously
accused another of a crime, or has otherwise vexed him, by cause-
lessly and maliciously exercising upon him, to his damage, powers
incident to his situation of superior, the injured party is entitled to
redress, The Commander-in-chief is in the situation of every other
subject of the country; who, being put in authority, has responsibility
annexed to his situation. And the proposition that he has the privilege to
bring a man to trial for an offence which he knows him to be innocent of,
is too monstrous (Johnstone v. Sutton, 1 T. R. 503). The latter proposition
may be true, though it leaves the nature of his liability entirely open ; and
the House of Lords, in the same case, decided that, at all events, for acts
done in time of war there is no legal liability, and the redress, if any, is by

H
( 98 )

beyond all doubt absolutely protected from any legal
liability within their jurisdiction, however erroneous may
be their verdicts or judgments, or unless, as regards Judges,
these sentences are wholly illegal ; and as the same general
principle applies even to inferior Judges or mere ordinary
magistrates, unless they act maliciously, it appears equally
to apply to officers sitting upon court-martial ; at all events,
unless there is such an utter absence of any evidence as to
show a wicked conspiracy to commit a murder under colour
of martial law, a case happily hardly supposable.

When martial law has been lawfully declared, and per-
sons have been convicted and executed by court-martial,
the onus of proving that the proceedings were wrongful
rests on those who assert it (a); for although no doubt, in
the first instance, the onws was upon persons who take
life, to justify it, they do so, by showing it was under lawful
authority, and then the onus rests on those who impeach
the proceedings ; nor can this be done by merely proving
the innocence of the persons convicted.

The legality of the conviction (b), by court-martial

the law military. So the House of Lords negatived the previous proposition,
“ that a Commander-in-chief (at all events in time of war), is in the condi-
tion of every other subject of the country, who, being put in authority, has
responsibility annexed to his situation.” For they held that he was not
liable at law. The above, therefore, represents the extreme of the doctrine
of legal liability, and it requires wilful injustice.

(a) If it were not so, no one would even venture to sit on a court-
martial. There is nothing in which men’s minds differ so much as in the
judgment they form upon evidence; and if every officer who sat upon a
court-martial had to satisfy a jury of the soundness of the verdict, it would
not be safe to sit on a court-martial. Moreover, the strict rules of evidence
are not binding on courts-martial under martial law, and thus they would
act under one law and be tried by another, which would be contrary to the
first principles of justice. It is w general legal principle, expressed by a
legal maxim, that things done under lawful authority are presumed to be
done rightly; and, assuming martial law to have been legally declared, and
the court to have been lawfully assembled, it was a lawful tribunal.

(b) In no system of judicature, of whivh the author is aware, are Judges
of any grade liable, merely because other persons consider they have de-
cided on unsatisfactory or insufficient evidence, or because the persons
they have convicted turn out to be innocent; and if this be not so
ee)

cannot possibly depend upon the innocence of the. parties
convicted, still less upon the legal proof of their guilt.
The st:itt legal ruieés of evidence are not binding upon
courts-martial under martial law, and if they were, to
render the members of the court liable, if the guilt of the
accused is not deemed to have been clearly proved, or
even if their innocence is clearly established, would be to
impose on those exercising this summary power a heavier
burden of legal risk and peril than is imposed upon any
tribunal under any other system of law.

If the proceedings of the court-martial were lawful and
regular according to military usage, in like cases (a),
that is in case of war, then, however innocent the men
convicted may have been, it matters not as to legal
liability ; and, on the other hand, if the proceedings were
unlawful, it matters not how guilty the accused may have
been, their conviction was illegal.

Moreover, it is to be borne in mind that courts-martial
unite in themselves the functions of jwries as we.l as
judges, in other words, they are, like justices, judges of fact
(6), and they are, like justices, allowed to judgea good deal

under an ordinary system, when judges have ample time to consider, and
the benefit of knowledge of law and the legal rules of evidence, how much
Jess can it be so as to lay tribunals, acting on a great public emergency,
under the pressure, perhaps, of military exigency, ignorant of the rules of
evidence, and therefore not bound to administer them, and often unable to
get legal evidence, and yet obliged to act summarily.

(a) So it is in all the analogies of common law. If a magistrate return
a regular conviction, and the matter was within his jurisdiction, it is good
in law, although he was utterly wrong, and it condemns to the ignominy
of hard labour in a gaol a perfectly honest and innocent man. This has a
hundred times been illustrated in cases of summary convictions in our
courts. It need hardly be said, that if a trial for a capital offence be regular,
the sentence is legally valid, though the man was innocent, and our law
gives no appeal on the facts. On the other hand, it is clear law, that for a
man without authority to kill a convicted murderer, under sentence of
death, is murder. (Hawkins’ Pleas, Crown.)

() Just as it has been often said, that Justices of the Peace exercise, in
summary convictions, the functions of juries. And that juries have a very
large and wide latitude allowed them by law, in regard to evidence of mat-

H2
( 100 )

“by matters of fact, on the part of the prisoner, the absence
of denial~er-efsxplanation,or the faint tone of denial, as
to matters put forward against | him,-and-the like, which
are matters not easily put upon paper or reducible to rules
of formal proof.

Again it is to be borne in mind that, as martial law is
not only military rule, but military rule in a state of re-
bellion, in which no neutrality is allowed (for subjects, even
at common law (a), cannot stand neutral between a Sove-
reign and a rebellion), and sympathy with rebels is nearly
an offence ; positive, affirmative proof of complicity in the
rebellion is by no means so necessary as at common law,
and slight circumstances, coupled with the undoubted fact
of neutrality, which of itself goes far to show sympathy,
may not unreasonably suftice to satisfy military men under
martial law.

ters of fact before them, is shown by many cases, Thus, on the other hand,
they may disbelieve positive testimony on account of the demeanour of the
witness (Carstairs v. Stein, 4 M. & S. 99), or their own general knowledge
(Rushforth v. Hadfield, 7 East, 224), or they may be referred to their own
general knowledge in matters in which they are conversant, without any
formal proof at all. Nor is it at all clear, that as courts-martial in time
of war are not bound by the legal rules, they may not, as Justices of the
Peace may, ask questions of the prisoners; and if they may, sometimes a
single answer, or refusal to answer, may be conclusive, At all events, the
absence of explanation of circumstances, broadly suggestive of guilt or of
suspicion, and requiring explanation, and the explanation of which would
be in the prisoner’s power to give if innocent, may even according to the
common law be considered, coupled with any circumstances raising a pre-
sumption or probability of guilt (vide R. v. Burdett, 4 B. & Ald.).

(a) Nothing is more clear than that, at common law, itis not lawful to
stand indifferent between the Sovereign and his subjects, in case of war or
rebellion. It is an overt act of high treason to adhere to the King’s ene-
mies, and misprision of treason is a crime. So men may be indicted and
punished for refusing to assistin putting down a riot when called upon to
do so (vide ante, p.29). The declaration of a state of rebellion is itself a call
upon all loyal men to put it down; and it is notorious, that upon occasions
of riot or rebellion, loyal men all rally round the Government, for the sup-
port of law and order; and the bare fact that a man does not do so, and
stands aloof from the Government in guch an emergency, as it may of

itself be & positive offence, so it is always a matter ot grave suspicion, and
suggestive of complicity.
( 101 )

The weight or effect of this negative evidence (a). is,

of course, greatly enhanced as regards persons of acknow-
ledged influence, because the consciousness of that influence
would lead them, if they were not implicated in the rebel-
lion, to use it in support of law and order, and, therefore,
their not so using it, but standing entirely aloof, is as
strong a piece of evidence against them in common sense
and reason, as can well be furnished to a tribunal, bound by
no formal or technical rules of proof, and only bound to be
honestly satisfied of ecmplicity.

The truth is, that martial law is quite different from the
common law, in its offences, its penal consequences, and
its mode of proof, or manner of procedure. The effect of
tne lawful declaration of martial law, being to. establish
that law, in suspension and exclusion of the common law,
it follows that there is no necessity (6), that the offences.
punished should be common law offences, still less that
penalties inflicted should be common law penalties; least
of all, that the offences should be proved by legal proof.
And, therefore, it is not necessary that there should be the.
legal elements of the offence, as, for instance, a felonious in-
tent, or a specific intent, or an intent to do a specific act,

(a) This, and all other points arising upon trial by court-martial under
martial law, arose in the Jamaica case, especially with reference to the case
of Gordon, which caused some sensation, and is, therefore, stated carefully
in the next Part. He wasa man of unbounded influence among the negro
population, who had a residence in the district where the rebellion broke
out, and had been for months, as a matter of fact, engaged with the active
leaders, in exciting the people there to sedition ; and though he was absent
when the particular outbreak occurred, and at which the persons who were
his personal and political enemies, and whom he had held up to execra-
tion, fa a seditious proclamation, were massacred, by the active leaders, of
the insurrection, he remained out of the district, quite neutral, for nearly a
week afterwards, during which the negroes were in armed rebellion, doing
nothing to induce the negroes to put an end to it. He was then arrested,
and taken into the district, and tried, convicted, and executed, for complicity
in the rebellion.

(6) If there were, then martial law would be the same as common law,
whereas it is, as all are aware, something not only different but utterly the
opposite. For common law is strictly limited by rule, whereas martial law
is arbitrary, and has no definite limit, no formal rules,
( 102 )

which happens to have been committed. The true scope of
it is, danger, and the removal of the danger, by striking
terror into those who cause it.

This principle presents the key to the solution of all the
questions that arise under martial law, as to the time to
which it relates, or the matters or persons coming under its
opinion, or the measures to be adopted. The first question
that arises under martial law is, to the measures which
may be taken, as, whether parties arrested may be tried
by court-martial for offences previously committed (a),
that is, if committed prior to the proclamation of mar-
tial law ; and next, whether they may be arrested out of
the proclaimed district, and carried into it, to be there
tried for offences committed within it. All these questions
turn upon the real object and character of martial law, and
whether it is mere resistance of actual insurrection, or repres-
sion and prevention of rebellion, and restoration of order.

As regards the question of time, the state of war to which
martial law applies, begins, as against those who raise it,
when it is begun ; and the declaration of martial law only
recognises its existence, so that martial law applies to all
offences committed in raising the rebellion.

As regards the question of locality, whether a person
who has committed a crime in the proclaimed district can
be arrested out of it, and brought within it, to be there
tried for his offence there committed ; it appears clear that he
may beso dealt with, according to the analogies of common

(a) If not, then there will be this absurdity, that, though there may have
been a cruel massacre, by hundreds of men, known or believed to be
banded together for similar massacres, and far too numerous to be dealt
with by ordinary law, they cannot be touched until they have committed
further outrages, and perhaps sacrificed more lives; surely the reductio ad
absurdum, is endaghy The object of martial law surely is, repression and pre-
vention. If it is only resistance to actual outrage, then it goes no further
than the right of self-defence or the common law right, and only of resist-
ing actual felony, which does not require martial law at all. If the object

is repression and resistance, there is no surer mode of effecting it, than
>

striking terror by the execution of those who have already committed out-
rages.
( 103 )

law, under which it is a maxim that crime, or rather the
trial of it, is local (a), and must be tried where it is commit-
ted, indeed, cannot be tried elsewhere.

Again, even according (0) to the strict rules of the common
law, a man may commit a crime in a place in which he has
never personally been, as in the case of a seditious publi-
cation, by sending it to a place where it is received, and
read, and published, and does its mischievous work ; or, in
the case of conspiracy in one place, where the actual mis-
chief is done at a distance.

(a) Raphael vy. Verelest, 1 W. Blackstone’s rep. Hence it was held
that, a British subject, arrested abroad on a warrant upon an indict-
ment for a misdemeanour, brought in custody to England, and there
committed to prison, is not entitled to be discharged—Per Lord Ten-
terden, C. J., and Parke, J.; (x parte Scott, 4 M. & R. 361; 9B. &
C. 446.) Where the crew of a Dutch ship had mastered the vessel and
yan away with her, and brought her into Deal, it was held that they
might be seized and sent back to Holland. (Mure v. Kay, 4 Taunt. 43.)
The truth is, that it is a fundamental principle that by action at common
law, and apart from statutable or special law, causes can only be tried in
the counties where they were committed. (Sce R. v. Burdett, 4 B. & Ald.
156.) It therefore required special statutes to provide for trial in cases
of crimes committed abroad or on board ship, &c. (vide notes to R. v.
Corbett, 4 Finlason’s rep.) Therefore, if a person is implicated in acts of
rebellion, which have been committed within a proclaimed district, he must
be removed there to be tried, and must be tried (if at all) by martial law,
for he cannot be tried elsewhere.

(6) It was once doubted whether a libel be triable in any county but that
where the publication took place. (Rea v. Burdett (Bart.), 3B. & A. 717 ;
4B. & A. 95). But it is now held, that where a defendant writes and com-
poses a libel in one county, with an intent to publish, and afterwards pub-
lishes it in another, he may be indicted in either. Ib. When a letter was
enclosed in an envelope, and received in the county of M. open, accompanied
with written directions for publication, as expressed in the ehvelope, this
was evidence to go to a jury of a publication in M. The publisher of a
public register received a letter, the letter itself containing expressions of
the writer, indicative of his having sent it to the publisher of the register,
for the purpose of publication—the whole is evidence sufficient for the jury
to find a publication by the procurement of the defendant. (Rea v. Johnson,
7 East, 65 ; 3 Smith). An information at common law for a conspiracy, for
planning and fabricating false vouchers to cheat the Crown (which planning
and fabrication were done upon the high seas), is well triable in M., upon
proof there of the receipt, by the commissioners of the navy, of the false
( 104 )

Moreover, in conspiracy, one of the parties is liahle
for the acts of the others. Those who are parties to rebel-
lious conspiracy are liable, even at common law, for acts
done by others, in furtherance of it, at a time and place at
which he was not present. And by martial law, strict legal
proof is not necessary (a), and a seditious or rebellious con-
spiracy, whether or not it is connected with a murderous
object, is capital.

Upon any other principle, it might be impossible to pre-
vent the, ringleader of a most formidable and murderous
insurrection (0), except through the dilatory and doubtful
process of common law, for he may carefully keep out of
the proclaimed district, and avoid any act during martial
law; and there might not be strict legal proof even to
warrant an arrest, and in the meantime the insurrection
may be spreading, and causing terrible loss of life, though
it would be probably paralysed and put a stop to by his
summary seizure and execution.

The. scope of martial law is not guilt, but mischief and

vouchers transmitted thither by one of the conspirators through the medium
of the post, and the application there of a third person for payment, which
he there received. (Rex v. Brisac, and same v. Scott, 4 East, 164.)

(a) Hence a man, under martial law, may be well enough arrested out
of the proclaimed district for complicity in a seditious or rebellious con-
spiracy, which still exists, and which broke out and took its chief seat at a
place where he never was, if it appear that his letters or publications
caused it; whether or not he had the intent of inciting to the. particu-
lar outrages, which happen to have been committed in furtherance of
the rebellious object. For if he were privy to those, he would be indicted
for them at common law, and the mere sedition, which is an offence by mar-
tial law, has produced the rebellion. And supposing, it is considered,
that his conviction and execution will put a stop to a dangerous rebellion
which he, in fact, has caused, and must have had in general contemplation,
it matters not, under martial law, whether he had the intent of causing
the particular outrages which happen to have been committed.

(b) The real head of it will probably be a man of too much craft and
cunning to commit himself openly by any overt act, or by any writing
which would have a treasonable or murderous intent. That he might leave
to secret and ora] communications which could not be proved, or, more crafty
still, he might abstain from them, and rely on the effects of his exciting
inflammatory publication on an ignorant and excitable race. And so long as
( 105 )

danger; and if a man has, by acts—which in law were
done in the proclaimed district, though in his body he was
never there in his life—actually caused the rebellion (a),
and must have meant to cause it, though, perhaps, not in
that particular way, or at that particular moment, when it
may have exploded prematurely by accident, as he could be
removed into that district and tried there, at common law,
for the sedition ; so he may be removed there and tried for
it under martial law, by which it is capital.

In such a case the question would be, not whether a
capital offence could be proved in a trial at common law,
but whether an act could be proved reasonably, which would
be a capital offence by martial law, and which, also, could
reasonably be connected, by the relation of cause and effect,
with the rebellion.

On the last occasion (6) on which the subject came before

he remained untouched, they (his deluded dupes) might still cling to a
hope of success, or of renewing the struggle, whereas his prompt execution
would at once deprive them of hope.

(a) A man who issues seditious proclamations, is,even at common law,
deemed to have meant to cause a rebellion, whether, in fact, he meant it or
not; on the reasonable principle that we can only tell men’s thoughts and"
intents by their acts or words, and that they must be taken to mean what
they say, and to intend the natural result of what they do. (Vide R. v. Bur-
dett, 4B. & Ald.) Then, that being so, the man might be indicted for rebel-
lion at the place where he caused the publication, though he was never there
in his life. And if martial law happens to be existing there, and the
seditious publication caused the rebellion, which is its object, he is liable
to be tried by martial law, though the rebellion may have been accompanied
by acts which he did not contemplate or intend, or rather which it cannot
be proved he intended. And further, the evidence to prove he did intend
them, is not the strict proof which would be required at common law, and
it need not appear to be the sole or direct cause. It would be otherwise,
of course, if the acts were quite unconnected with the rebellion.

(6) On the occasion of the committee of enquiry into the measures taken
for the suppression of the rebellion in Ceylon, Sir. D. Dundas was then
Judge-Advocate-General, and in his examination (see Q. 5421), distinctly
laid down the doctrine stated in the text. The effect of the proclamation of
martial law upon the inhabitants generally, is to put them all under mar-
tial law, and that is quite different from ordinary military law, which is
written law found in the Mutiny Act and the Articles of War. But mar-
tial law, properly so called, is not written law ; it is unwritten law ; it
( 106

Parliament, it was distinctly stated by. the Judge-Advocate-
General of the day, that the effect of proclaiming martial
law, is to put the whole population under martial law, and
that this is something more extensive than ordinary mili-
tary law, which is written law contained in the Mutiny Act
and the Articles of War, and is arbitrary in its nature, In
short, that it is the establishment of a state of war.

On that occasion (a), after martial law had been put
in force, in an English colony, these doctrines were dis-
tinctly brought before the committee of the House of Com-
mons, not only by the evidence of the Advocate-General of
the colony, but of the Judge-Advocate-General ; and were
deemed to justify-the proclamation of martial law by a
Governor in case of rebellion, and all measures which the
military authorities deemed necessary in carrying out mar-
tial law.

It seems that the Governor can hardly issue any
orders to the Commander of the forces, beyond a general
order to carry out martial law for the suppression of the
rebellion ; nor can the Commander-in-Chief give any other
than general orders to the General commanding in the field ;
nor he to the officers commanding particular detachments,

arises upon necessity to be judged of by the executive. Martial law com-
prises all persons, civil or military, and it is to be executed by those who
have to execute it, firmly and faithfully, with as much humanity as the
oceasion allows, and according to their sense and conscience. (Parl. Pap.)
(a) The occasion of the rebellion in Ceylon, upon which a committee of
enquiry was appointed, which took a great deal of evidence, comprising that
of the Adyocate-General of the colony, Sir. J. E. Tennant, Colonial Sec-
retary, and Sir David Dundas, Judge-Advocate-General ; and they all
laid down the above doctrines. “The Governor may declare martial Jaw
upon a necessity, of which he is to judge.” (Ev. of Selby, the Advocate-
General, Q. 1361); at the time martial law was proclaimed, the Governor was
in possession of the general fact that a rebellion had been kindled. The
first step necessary to be taken was to suppress that rebellion; the next
was to inquire into the causes of it. With the object of suppressing the
rebellion, martial law was proclaimed. (Evidence of Sir J. E. Tennant
Q. 3346.) Sir D. Dundas, Judge-Advocate General, gave similar evidence :
but it is singular that both he and the Committee fell into the twofold
error of supposing that the Petition of Right, prohibiting martial law in
( 107 )

as it is necessarily so much a matter of military exigency
and military discretion as to the measures to be
adopted (a).

Martial law is, in short, the suspension of all law, but the
will of the military commanders entrusted with its execu-
tion, to be exercised according to their judgment, the exi-
gencies of the moment, and the usages of the service ; with
no fixed and settled rules or laws ; no definite practice, and
not bound even by the rules of ordinary military law (6).

In the exercise of the terrible powers conferred by mar-
tial law, it is conceived that there is an absolute discretion
for the doing of anything which possibly could be deemed
necessary or expedient, by the military authorities, for the
carrying out its object; the complete suppression of the
rebellion, the removal of the danger, and the restoration of
peace and confidence. That is, not merely what a jury or
any other tribunal might deem necessary, for it is a question

time of peace, had any application out of the realm, or that, even within
the realm, a state of rebellion is a state ofpeace. Mr.S. Wortley, however,
put the whole question on its right basis, when he observed, “ martial law
is the declaration of a state of war.”

(a) Thus, in the Ceylon case, the Governor, Lord Torrington, upon the
breaking out of a rebellion, and proclaiming martial law, did not feel him-
self able to do more than give general orders to the officer commanding in
chief, to carry out martial law, leaving it to him to take what measures he
might think necessary. (Ev. of Sir J. E. Tennant, before the committee on
Ceylon, 1850 ; Q. 3346.) “ Lord Torrington was not in a position to give
instructions of any kind tothe military commanders. He did not take upon
himself to do s0; but adopted the general measure of proclaiming martial
law, having confidence that in the hands of the officer, to whom was en-
trusted the carrying of it out, it would be carried out with every precaution.”
So in the Jamaica case, 1865, the Governor, upon declaring martial law,
left the carrying of it out in the hands of the General-Commanding-in-Chief,
who, also, at first gave only general orders to the General in the field.

(8) When martial law is proclaimed, there is no rule or law by which the
officers executing martial law are bound to carry on their proceeding,
(Ev. of Selby, Advocate-General, before committee of enquiry on Ceylon,
1850, Q. 6363.) “‘ When martial law is proclaimed, the law is the will of the
ruler, or rather the will of the rulerislaw. So the evidence of the Judge-
Advocate-General: “ There is no practice laid down for martial law; it
( 108 )

purely military, to be decided at the moment by military
authority; but anything which military authority could
possibly deem necessary under any circumstances (a).

The view of martial law supported in these pages has
been officially laid down ()) within the last few years, and
by the highest official authority on the subject, the Judge-
Advocate-General, in a paper laid before a Royal Com-
mission, and by that Royal Commission laid before Parlia-

must be executed by those who have to execute it, firmly and faithfully ;
with as much humanity as the occasion allows of, according to their sense
and conscience.” bid. It overrides all other law. “It is entirely arbitrary ;
it is far more extensive even than ordinary military law.” Ibid.

(a) This seems logically to follow from the very nature of martial law,
the establishment of absolute discretionary military authority, which is the
view evidently taken of military authority, in a state of war, by the highest
legal authorities. (Vide the judgment of Lord Mansfield, in Sutton v. John-
stone, 1 T. R.; and see the ruling of the court in Wright v. Fitegerald, 27 St.
Trials) ; and if so, then, by this authority, it must include anything which
the military commanders at the time being deemed necessary, unless it
were something which, in its nature, they could not have deemed necessary ;
as wanton cruelty to non-combatants. This is evidently the view which
was taken by Sir D. Dundas, the Judge-Advocate-General, at the time of
the Ceylon Enquiry, 1850, for, after stating that martial law was far more
extensive and arbitrary even than ordinary military law, and is not bound
by written laws or formal rules, said, “I can conceive of cases in which
something might be done in which no necessity could possibly justify, as the
torture of a child.” (Report of Committee of Enquiry, 1850, Q. 5448.) He
evidently implied in the whole tenor of his evidence, that, if it was some-
thing which might possibly be necessary, it was within the discretionary
power involved in martial law; because, of that necessity, the military
authorities would have to judge.

(b) Letters of the J udge-Advocate-General, Nov. 25, 1859, in answer to
questions put by the Royal Commissioners for National Defences, ‘‘ There
is a broad distinction between martial law, called into existence by a pro-
clamation of martial law, and the law administered by courts-martial for
the ordinary government of the army, which for distinction and accuracy
may be called military law. The latter, namely, military law, is applicable
only to the army, and to such other persons connected with it as are made
amenable to military law by express enactment. This law is partly written
and partly unwritten, The written portion of it is comprised in the
annual Mutiny Acts and the Articles of War issued under them, the pro-
visions of which, like those of the ordinary law of the land, have been
divulged and ascertained by a series of decisions given by competent
authorities. The unwritten portion of it is founded on established usage,
( 109 )

ment, and it is conceived that it is too clearly the law to
admit of any doubt in the mind of any one who has been
at the trouble of tracing the history and the authorities of
the subject.

The effect of the proclamation or declaration of martial
law (a), according to this high authority, is to establish an
absolute arbitrary military authority over the district, the
will of the superior commanding officer ; a power quite dif-
ferent from the ordinary and regular military law, and
amounting, in fact, to an authority to take any measures he
may deem expedient.

and is recognised by the legislature under the term ‘custom of war.’ The
former, namely, martial law, which is the subject of the present enquiry, is
so arbitrary and uncertain in its nature, that the term ‘law’ cannot be
properly applied to it.”

(a) “ Martial law, according to the Duke of Wellington, is neither more
nor less than the will of the general who commands the army. In fact, mar-
tial law means no law at all, therefore, the general who declares martial
law, and commands that it should be carried into execution, is bound to
lay down the rules, regulations, and limits, according to which his will is
to be carried out. The effect of a proclamation of martial law, is a notice
to the inhabitants that the executive government has taken upon itself the
responsibility of suspending the jurisdiction of all the ordinary tribunals
for the protection of life, person, and property, and has authorized the mili-
tary authorities to do whatever they think expedient for the public safety.”
(Letters of Mr. Headlam, Judge-Advocate-General, 25th Nov. 1859, cited
in the' Appendix to the Report of the Royal Commission on National De-
fences, p. 90.)
( 110 )

PART III.

OF MARTIAL LAW, AS PRACTICALLY ILLUSTRATED.

ALL this was lately illustrated in the recent case of the
rebellion in Jamaica (a), which from the attention it
excited, and the circumstance of its having been made the
subject of a Royal Commission of Inquiry, will probably be
long referred to, as an authentic illustration of martial
law. That case illustrated all the questions that can
possibly arise with reference to martial law.

All the points which are ever likely to arise with refer-
ence to martial law arose, and were illustrated and eluci-
dated, in that recent and remarkable case; that is, as to
the necessity for the declaration of martial law, or for its
continuance, or to its effect, and the powers it confers, or, as
to the orders to be issued, as to the means and measures to
be taken, and, in particular, as to the mode of dealing with
prisoners, and as to proceeding by court-martial.

With reference to the first and fundamental point, the

(a) This was the first occasion on which the declaration and execution of
martial law has received official and authentic illustration, by the publica-
tion of all the reports, orders, and despatches, and all the official docu-
ments, the proclamation of martial law itself, the orders issued under it,
the reports of the officer engaged in carrying it out, describing the mea-
sures taken, the despatches of the Governor, setting forth the grounds on
which he had acted, the despatches of the Secretary of State, commenting
upon all the proceedings ; and all these form a body of official and authentic
information on the subject, which has never yet been obtainable, and which,
therefore, has been largely embodied in this part of the work, for the pur-
poses of practical illustration.
e ats

necessity for the declaration of martial law, the case of
Jamaica was an illustration of that kind of case which
has already been pointed out as the most likely to give rise
to such a necessity, from the peculiar condition of its popu-
lation (a), in which a small white community were sur-
rounded by, or rather scattered among, an overwhelming
mass of a coloured race, for the most part belonging to a
particular class, the peasantry.

The case of Jamaica was also an illustration of what has
been already pointed out, that in the character or conditions
of a large class of the population (6), and the existence
among them of a general feeling of disaffection and pre-
disposition to rebellion, there may be the strongest grounds
for apprehensions of the spread of a rebellion, by reason of
the sympathy of race, and the bands of union, arising from
common instincts and feelings, quite apart from any actual
combination or conspiracy.

It would be all-important to consider any information
conveyed to the Governor, of any general indications of
such a spirit, in the refusal of taxes or otherwise (c), and

(a) By the census it would appear that the white population was not
above 15,000, while the blacks were about 400,000, and the ordinary mili-
tary force in the colony barely numbered 1000 men, of which many, and
all the police, were blacks. And this land, besides being of great extent,
170 miles by 40, 50, or 60, was in a great part covered with mountain and
forest, and bush, difficult of access, and affording great means of conceal-
ment and defence to a rebel race.

(b) It has already been observed that, the most disastrous insurrections
mentioned in history, have been cases of the rising of a race or a class,
among whom there has been little or nothing of previous combination or
conspiracy, but among whom smouldering feelings of animosity, enkindled
by a casual spark, have burst forth into a flame which has spread like
lightning. The massacre of the whites by the blacks in Hayti, was pro-
bably an illustration of this, for there was little trace of any actual con-
spiracy or organization ; the truth is, that in such cases there is little neces-
sity for it, where the natural instinct, and the sympathy of race and class,
afford afar stronger and more certain bond of union, so that each man ig
certain of the co-operation of the whole mass, if only the insurrection gets

to a head.
(c) It was notorious that there existed in Jamaica a general fecling
( 112)

the existence of any general feeling or desire for a par-
ticular object, among that class of the population, likely to
be worked upon or made use of, for the purpose of agita-
tion or sedition, and the excitement of disaffection.

The necessity for the declaration of martial law on the
occurrence of any outbreak, in such a case would depend
on the materials for judgment, presented in the information
conveyed to the mind of the Governor (a), as to the more
remote or more immediate causes of the outrage, and espe-
cially as to the state of feeling among the most numerous
and most dangerous class of the population, and the ante-
cedent probability that the outbreak was the outbreak of
a rebellion, or was likely to extend into rebellion.

among the blacks, that they were entitled to the waste or back lands, rent
free, and the land taxes had been refused, as well as rent, on that account.
(a) Thus, the Governor of Jamaica, some months before the outbreak,
had received such official communications as the following, from the ‘“ Cus-
tos” of a large parish, answering to the Lord Lieutenant of an English
county:—“St. Elizabeth, July 22, 1865.—Your Excellency,—I think it
my duty to inform your Excellency, that the minds of many per-
sons in this parish are distressed by rumours of intended disturbances by
the negroes ; among these the resisting the payment of taxes, and the ap-
propriation of lands to their own use, is said to be their every-day conver-
sation. I enclose a letter from a highly respectable coloured gentleman, a
magistrate. I have been spoken to by several of the peasantry and coloured
people, but I cannot arrive at any certain information. I believe many of
the black proprietors do intend to withhold the payment of the August
tax; if so, the enforcing the law by levy would very likely create disturb-
ance. Iam told the chat among the negroes is ‘Buckra has gun; negro
has firestick’ That a large portion of the people do not participate in
this bad feeling or evil intention, I believe. But it appears to me
quite necessary that a strong hand should at once arrest a spirit now
abroad, and which requires to be compelled to fear the law, and respect
the rights and security of the community. Your Excellency may consider
it necessary to have it understood that the peace is not to be broken, and per-
haps serious loss of property and life follow, and to have it seen that means
are at hand to put down any attempt at seditious commotion. But, to put
a stop to any attempt to carry out these intentions, if they exist, it might
be worthy of consideration, the presenting before the people some force to
punish and put down an emeute.” There were many similar communica-
tions; and there were many statements as to words which had been heard
uttered by negroes, as to a “war,” which was to break out in October.
rumours of drilling, arming, secret oaths, &c. ,
( 113 )

And, in considering the course taken by the Governor in
such a case, either in declaring martial law, or continuing it
after actual outrage and insurrection had ceased, it would
be necessary to look at the materials for judgment pre-
sented to his mind at the time, by the information then con-
veyed to him (a), especially as to the existence, among that
large and powerful class of the population, of a deep-seated
and widespread spirit of rebellion, ready to break forth, and
likely to render a rebellion, if allowed to break forth, for-
midable, if not fatal.

It would be very important to consider whether there
was any person or man of great influence among the ne-
groes (b), who had issued any inflammatory and seditious
addresses to the coloured people, indicating a design or de-
sire on his part to excite and urging them to rebellion.

{a) The foregoing is only a specimen of the communications received by
the Governor on the subject. Here is another letter from Mr. Raynes W.
Smith, a member of Council:—“ There is undoubtedly a spirit of disaffec-
tion abroad, and the casual remarks dropped here and there lead to a con-
viction that many of the people are ripe for mischief. People from St.
James’s and Trelawney have been observed riding backwards and forwards
in the parish, and Dr. M‘Catty informed me of a night meeting having
been held in Santa Cruz mountains, at which seditious and threatening
language was used. That gentleman, from his profession, has peculiar ad-
vantages for obtaining accurate information of the state of feeling existing
in this and other parishes, which he describes to me ‘as not to be disre-
garded.’ ”

(6) There was, it was well known, such a person, one Gordon, a man of
unbounded influence among the negroes, who had two months before issued
a seditious proclamation, which had been since in circulation, and tended
directly to excite the negroes to rebellion, blending adroitly local with
general causes of discontent, and especially holding up to execration his
political opponent:—“ State of the Island. -Public Meetings.—St. Ann’s
Bay—St. Thomas ye East.—People of St. Ann’s; Poor people of St.
Ann’s ; Starving people of St. Ann’s; Naked people of St. Ann’s; You
who have no sugar estates to work on, nor can find other employment, we
call on you to come forth. Even if you be naked, come forth and protest
against the unjust representations made against you by Mr. Governor Eyre
and his band ofcustodes. Yo don’t require custodes to tell your woes ; but
you require men free from Government influence—you want honest men—
you want men with a sense of right and wrong, and who can appreciate
you. Call on your ministers to reveal your true condition, and then call

I
( 114 )

So it would be most material to consider whether there
had been a continued distribution or circulation of such
seditious publication, all emanating from the same quarter,
and showing a settled, persistent, system of agitation, calcu-
lated, and, therefore, presumably intended (a), to excite the
large and dangerous class to whom they were addressed, to
rebellion (6).

on heaven to witness and have mercy. People of St. Thos. ye East, you
have been ground down too long already ; shake off your sloth. Prepare
for your meeting. Remember the destitution amidst your families and
your forlorn condition; the Government have taxed you to defend your
own rights against the enormities of an unscrupulous and oppressive
foreigner, Mr. Custos Ketelholdt, You feel this, and no wonder you do;
you have been dared in the provoking act, and it is sufficient to extinguish
your long patience. This is not the time when such deeds should be per-
petrated ; but as they have been, it is your duty to speak out, and to act,
too! We advise you to be up and doing on the 29th, and maintain your
cause, and be united in your efforts; the causes of your distress are many,
and now is your time to review them. The Custos, we learn, read at the
last vestry the despatch from Mr. Cardwell, which he seemed to think
should quiet you; but how can men with a sense of wrong in their bosoms
be content to be quiet with such a reproachful despatch as this ? Remem-
ber that he only is free whom the truth makes free—you are no longer slaves
but free men; then, as free men, act your part on the 29th. If the con-
duct of the Custos in writing the despatch to silence you be not an act of
imprudence, it certainly is an attempt to stifle the free expression of your
opinions. Will you suffer this? Are you so shortsighted that you cannot
discern the occult designs of Mr. Custos Ketelholdt ? Inhabitants of St.
Thomas in the East, you have been afflicted by an enemy of your peace—a
Custos whose views are foreign to yours.” The worst passages were kept
in circulation.
(a) Vide ante, p. 68.

(6) Thus, a few weeks before the outbreak, the following was found posted
about St. Thomas in the East, the words, it will be observed, being virtually
taken from the proclamation which had been previously issued by the sup-
posed author of the rebellion:—“ People of St. Thomas in the East and St.
Ann’s, be up and doing: you have been too long ground down by an
overbearing and oppressive foreigner ; you have been taxed for and robbed
of the small-pox money by the Custos, and the Rector, and Victor Her-
schell.” The above was found stuck on a cotton-tree on the main road,
opposite the house of one Chisholm (an active leader, and an associate of
Gordon), in August, 1865. And the persons here mentioned— opponents
of Gordon—were murdered in the first outbreak.
(aes

Then (a) it would be an important consideration that for
some months before the outbreak (a), meetings had been
held (a), at which a coloured person of great influence had
made seditious addresses, in one at least (a), of which, he had
incited the negroes to rise, and massacre the whites.

The Governor, of course, could only act upon the repre-
sentations he received ; and the first official account was
from the “Custos ” of the parish, who would answer to the
Lord Lieutenant of a county, who wrote (6) to the Governor,

(a) Thus, at one meeting, he told the blacks to do as they had done at
Hayti. The words, as published at this time, were:—‘‘Why don’t you
do what {Hayti does.” [On the 21st June, 1793, three thousand negroes
entered the capital city of Cape Francois, and perpetrated an uni-
versal massacre of white men, women, and children.] On this occa-
sion, Gordon also said :—‘The Governor’s a bad man, and sanctions
everything done -by the higher class for the suppression of the poor
negroes.” The context and whole character of the speech showed that
the allusion to Hayti, meant the extirpation of the whites by the blacks, as
their oppressors. ‘‘ The Governor is a bad man, he sanctions everything
done by the higher class to the oppression of the poor negroes ; now, my
friends, a few words as to the rates of wages, and how you are taxed by your
employers. The money that is said to go for the cultivation of the
properties goes into other ways. The people in Vere are in a very low
state, and very much oppressed. Educate your children, and in time they
will be able to take the leading parts in their country. What is to become
of you asa people? Whatis to become of your children? I was told by
some of you, that your Overseer said, that if any of you attend this meeting,
he would tear down your houses ; tell them that I, George William Gordon,
say they dare not doit. It is tyranny, you must do what ‘Hayti’ does;
you have a bad name now, but you will have a worse then.”

(6) ‘‘ The Costos of St. Thomas in the East to the Governor's Secretary.—
Morant Bay, October 10, 1865.—Sir,—I deeply regret that it is my duty to
bring to the notice of his Excellency the Governor, that a serious outbreak
among certain of the labouring population in this neighbourhood is threat-
ened, and, in fact, has already commenced. The facts are simply these:—
Anumber of over 150 men armed with sticks, and, preceded by a band
of music, came on Saturday, the 10th October, with the openly expressed
intention to rescue a man who was that day to be tried for some offence,
iffound guilty. Leaving the band of music outside the town, they pro-
ceeded to the Square in front of the Court-house. A man having been
ordered into custody on account of the noise he was making in the Court-
house, a rush was made by a body of the men referred to, and the man
rescued from the hands of the police, one of whom was left with his finger

12
( 6 )

describing a desperate outrage upon justice, and informing
him of the apprehensions entertained of an attack from the
rebels, and requesting the assistance of a military force,
stating that the civil force was quite inadequate. The
account showed what evidently was a designed and deliber-
ate outrage, with the intention of resisting justice.

Upon receiving this account, the Governor (a) at once
demanded military assistance in aid of the civil force, and
for the protection of the magistracy ; which, however, so
speedy was the progress of the insurgents from riot to open
rebellion, was too late to prevent a sanguinary attack upon
the magistracy, and a small civil and military force they
had for their protection.

broken, and several others beaten and ill-treated. In consequence of this
outrage, warrants were issued, yesterday, against twenty-eight individuals
who had been identified, and the warrants placed to-day in the hands of six
policemen and three rural constables, for execution. On, however, the
attempt being made by this force to arrest one Paul Bogle, 1 am informed
by the policemen who have just returned, that on a signal being given, a
body of over 150 men, armed with cutlasses, bayonets, and pikes, appeared
and made prisoners of three of the policemen, on two of whom they placed
handcuffs, and only suffered them to leave after having obtained an oath
from them, that they (the police) would jointhem. The oath was adminis-
tered by Paul Bogle, ona Bible he had. The statement of the police is
to the effect, that the people openly declare that they would come to Morant
Bay to-morrow. J may add, that for fear of overstating the case, I name
150 as the number of the men engaged in the outrage of this day, but the
evidence I have received while writing this despatch, leaves no doubt in my
mind that the number was far greater. The Police, and the Morant Bay
Volunteers, have no powder. I cannot hesitate, under these circumstances,
to submit that it is very probable that, without some military aid, the force
at the disposal of the authorities will, in the event of the people carrying
out their threats, be insufficient to uphold the law, and in that case the worst
consequences must be anticipated.—I have, &ec., (Signed) M. A. Von
Ketelholdt. P.S.—6 pm. The shells are at this moment blowing to collect
men all through the Blue Mountain Valley, and through Johnston. I am
of opinion that no time ought to be lost in despatching a sufficient military
force.—M. A. Von Ket.”

(a) “Governor Eyre to Major-General O’Connor, King’s House, October
11, 1865.—Sir,—I have the honour to acquaint your Excellency, that in-
formation has just reached me, that a serious disturbance has occurred in
the neighbourhood of Morant Bay, by a party of over 100 to 150 men
Cte)

In considering whether there was a deliberate and de-
signed attack, the Governor would consider all the surround-
ing circumstances, especially as to the conduct of the
leaders of the outbreak, who at the same time sent to the
Governor a letter (a), giving a false account of the matter,
as indicating that they had in contemplation what followed,
and were seeking excuses and pretences for it, and had
brought themselves designedly into collision with the law,
with a view to outrage justice, and provoke its action
against them, with the design of resisting it and setting it
at defiance.

The view taken by the Governor of these outrages (b),

armed with cutlasses, bay nets, and pikes. It is necessary that the most
prompt measures should be taken to put down this resistance to constituted
authority, and I have the honour to request your Excellency will be pleased
at once to detach 100 men to be removed to the disturbed district. I have
requested the senior naval officer to provide conveyance for these troops, if
possible, in a man-of-war, and T trust that arrangements might be made to
embark them in course of the day, as, if possible, the steamer ought to
leave with them without delaying time. It is stated that rioters ‘will
come to Morant Bay to-day.’—I have, &., (Signed) E. Hyre.”

(a) For instance, the fact, that on the day of the original outrage the
leaders sent an insolent letter to the Governor, falsely representing that
they had been attacked and were forced to stand on the defensive, evidently
in order to supply by anticipation a pretext for the further violence they
contemplated. The letter ran thus :—“ When on Saturday, the 7th of this
month, an outrageous assault was committed upon us by the policemen of
this parish, by order of the Justices, which occasions an outbreaking, for
which warrants has been issued against innocent parties, of which we were
compelled to resist. We, therefore, call upon your Excellency for protec-
tion, seeing we are of Her Majesty’s loyal subjects, which protection, if re-
fused, we will be compelled to put our shoulders to the wheel, as we have
been imposed upon for a period of twenty-seven years, with due. obedience
to the law of our Queen and country, and as we can no longer endure the
same; therefore is our object of calling upon your Excellency, as Governor
in Chief and Captain-General of this island.” This was signed by P. Bogle,
J. Bouie, J. M‘Laren, Cameron, &c., and fifteen others. The messenger
who took this letter would not wait for any answer, and it is obvious that it
was not intended to elicit one, but merely as a pretence.

(6) “Iam induced to hope that the present disturbance, magnified into an
insurrection, will be speedily checked by the prompt.measures your Excel-
lency adopted.” (General O’Connor to Governor Eyre, Oct, 12, 1865. Papers,
Part 1, p. 83.)
( 118 )

would depend upon the opinions he formed as to the pro-
bability, from the circumstances of the population, that in-
surrection, if not checked, would speedily develope into
rebellion ; and his letter showed a truer sense of the danger
of the spread of the insurrection, and the importance of
preventive measures, to prevent a rebellious spirit from
breaking out into insurrection, which, if it once made head,
might be fatal (a).

The correctness of the view he at first formed of the out-
break would be tested (b) and established by the speedy

(a) “ With you I trust that nothing very serious will take place ; but pre-
vention is better than cure, and I fear that if an insurrectionary spirit
were once allowed to make any headway, it would be more general and un-
controllable, and might cause a vast amount of trouble and expense before
it was put down. There is, undoubtedly, an uneasy spirit, almost amount-
ing to disloyalty and disaffection, in some of the districts, which has recently
been formed and stimulated by evil-disposed and illjudging persons at the
so-called Underhall meetings, which have taken place in various parishes,
and nothing but the utmost vigilance and the promptest action on the part of
Government will prevent these smouldering embers bursting into flames ;
and then, as you know, the physical features of the country, and the almost
unaccountable position of a large number of the people, would make it very
difficult to deal with an outbreak on a large scale, or in several different
localities at once.” (Answer of Governor Eyre.) This, be it observed, was
before the intelligence of any actual outbreak into murderous acts of rebel-
lion, and was a remarkable proof of the Governor’s prescience. Unhappily
the intelligence of such acts arrived almost immediately.

(8) “ Despatch of Mr. Davidson, J.P., to the Governor, of same date. The
people at Morant Bay have risen and burnt down the Court-house, released
all the prisoners, murdered several of the whites, Mr. Cook, the Clerk of the
Peace, Mr. Walton, a magistrate, &c.” The letter further stated that it was
the intention of the people to go up the valley and onwards in that direc-
tion :—“ Captain De Horsey, R.N., to Governor Eyre, “ Wolverine,” at
Morant Bay, October 12, 1865.—Sir,—I regret to have to inform your
Excellency that the disturbance you apprehended at this place has occurred,
and with sad results, about twenty-eight men, including the Custos of the
parish, having beeu brutally murdered, and the Court-house burnt by the
rioters. The company of the Ist West were immediately landed, and as
the attack on the town is expected to be repeated to-night, I am landing a
party of 114 men from this ship to co-operate with them in preserving order.
The ‘Wolverine’ will return to Port Royal to-morrow morning at daylight,
conveying those of the white inhabitants who desire to go to Kingston, and
( lig )

occurrence of worse outrages, and an attack upon the
magistracy, when assembled in session ; and his view of the
nature and character of this outbreak as indicating rebel-
lion, would greatly depend upon its character and circum-
stances, and especially, upon whether, from the numbers
engaged in it, and their being armed and previously assem-
bled, it would appear to have been a deliberate and de-
signed attack by a large and armed body of men, such as
savours of rebellion, and whether it appeared likely to be
carried out by further and similar outrages.

No other description could possibly be given to it than
that it was a rebellion, and that these were the acts and
outrages of a body of armed rebels (a), and it was so de-
scribed at the moment in military reports, as well as in the
reports of civilians.

The official accounts (4) received by the Governor could

with the object of bringing here any further troops your Excellency may
deem to send.”

(a) ‘Colonel Hunt to Governor Eyre.—King’s House, October 20, 1865.
—Sir,—It is my most painful duty to report to your Excellency that almost
the whole of the No. 1 Company of the St. Thomas in the East Rifle
Volunteers have been cut to pieces by the rebels, after a most gallant and
determined resistance to the attack made on the Court-house at Morant Bay.
The Volunteers were only twenty-two in number, and were opposed by a
mob of between 400 and 500 armed rebels, and fought to the last with the
utmost bravery. I regret I cannot herewith append a correct return, being
unable at present to obtain correct information regarding the few survivors ;
but I can state that the whole of the officers, viz., Captain Hitchins,
Lieutenant Hall, and 2nd Lieutenant Reid, fell at their posts, fighting gal-
lantly to the last against overwhelming numbers.—-I have, &c. (Signed)
Robert W. B. Hunt.”

(6) Statement of Mr. S. Cooke :—“ October 17, 1865.—In obedience to
the command of his Excellency the Governor, I beg leave to state as fol-
lows:—On Saturday, the 7th day of October, 1865, while the Court of Petty .
Sessions was proceeding with the business of the Court, the proceedings
were interrupted by one Charles Geoghegan. The Justices presiding ordered
the offender to be brought before the Court. The instant the order was
given the party attempted to make his escape, but was captured on the
steps of the court-house. Paul Bogle and two other persons rescued the
prisoner and ran down the steps of the Court-house with him, where they
were met by upwards of 100 persons with sticks; the prisoner was succegg-
( 120 )

leave no doubt in his mind that there had been an orga-
nized design for an armed attack; that there had been a
previous deliberate attack upon the police by a large band
of men already assembled, armed, and organized, for the pur-
pose, and that there was a continuance of this lawless course,
and that there was a deliberate rebellious and felonious
attack, by an armed body of men, upon an assembly of the
magistrates, and upon volunteer troops, drawn up to protect
them, and a dreadful massacre of the principal magistrates
and officers, except one or two who escaped (a).

fully rescued, and carried off, not, however, before the police were severely
beaten and ill-treated. On Monday, the 9th of the said month of October,
by order of the presiding Justices, Messrs. Walton and Bowen, | issued a
warrant for the apprehension of Paul Bogle and the other rioters. There
were seven policemen and five constables despatched to execute the war-
rant, none of whom, to the best of my knowledge, returned before the fol.
lowing day. Two of the policemen who were sent to execute the warrant
informed me on their return, that as soon as the warrant was read to Paul
Bogle, and the police attempted to capture him, a horn was immediately
blown, and about 200 people appeared out of Paul Bogle’s chapel and an
adjoining canepiece, and captured two of the policemen and one constable,
the others making their escape; they were handcuffed and taken into Paul
Bogle’s house, who threatened them that if they would take an oath to join
them against the whites, they would spare their lives, if not, they would be
murdered, to which they consented, and the oath was duly administered to
them by Paul Bogle.” This was not written until after martial law was de-
clared, but the effect of it was known, and it implies that it was known by
the Governor. The rest of it described the massacre.

(a) ‘Sergeant Mc Kenzie to the Hon. E. Gordon, Police Office, Morant
Bay, October 12, 1865.—Sir,—It becomes my painful duty to report to you,
for the information of his Excellency the Governor, an account of the anti-
cipated disturbance likely to arise between the authorities of the parish and
the peasantry. The No. 1 Company of Volunteers were ordered down from
Bath, and were embodied with a few of the No. 2 Company, and were under
arms at the court-house during the sitting of the Vestry, Wednesday, the
11th of October, 1865, about half-past 3 p.m. At this time the peasantry
in a large body came into the town, first attacked the police-station, -and
took posssession of the arms, the police at the time being at the court-house,
The mob then advanced to the parade, where the volunteers were drawn up,
His Honour the Custos began to read the Riot Act, the mob advanced close
to the volunteers, when the volunteers fired, and some of the mob were
killed, The following gentlemen were killed :—His Honour the Custos,
Inspector Alberga, Justices Walton and A. B. Cooke, Rev. Victor Her-
( 121 )

The judgment which would be formed by the Governor,
as to whether the outbreak was the outbreak of a rebellion,
would in some degree depend on the information (a) con-
veyed to the Governor at the time, as to whether the
outbreak was connected with, and the result of the head
and origin of that system of agitation and sedition which
had for some time prevailed, under the auspices of a person
of intelligence, and influence with the class of the popula-
tion among whom the outbreak had occurred.

The circumstances under which the Governor acted were
stated (b) by him, in an official despatch he wrote a week

schell, Captain Hitchins, and Lieutenant Hall, No. 1 Company Volunteers,
Mr. Arthur Cooke, and Mr. Charles Anthony Price, and several other per-
sons were killed, and others wounded. The court-house, school-house, and
the fort-house were burned down. The police force is disorganised. ‘The
prisoners in the district prison have been liberated.—I have, &c. (Signed)
J. O. Me Kenzie.” (Pap. Part 1, p.18.) ‘The statement of Mr. 8S. Cooke
was to the like effect (p. 19), and stated the numbers of the mob from about
400 to 500, and with cutlasses, spears, and guns.

(a) And certainly the first information conveyed to the Governor was
well calculated to produce this impression, for he received the following
from the principal victim of the massacre, the “Custos” or Lord Lieu-
tenant, who had been, with the other political opponents of Gordon, held
up to execration in one of his addresses, and was murdered by the rebels
under the personal directions of Gordon's political associate, Bogle, the active
leader of the outbreak :—“ Baron von Ketelholdt to Governor Eyre, Morant
Bay, October 10, 1865.—Sir,—I am sorry to say that Mr. G. W. Gordon’s
-inflammatory addresses have borne fruit earlier than I at least anticipated.
On my arrival here, a few hours ago, I found the respectable people of the
town in a great state of alarm and excitement, in consequence of demon-
strations of not only disaffection, but of open violence, by a body of men
who came to the Court-house on Saturday armed with bludgeons, and who
successfully rescued him [sic]. The circumstances that have since hap-
pened are detailed in an official despatch to your Excellency’s Secretary.
The ringleader in this affair is a man of the name of Paul Bogle, who gene-
rally acts with Mr. G. W. Gordon. I think it of the highest importance
that this outbreak should be stopped in its bud by a sufficient military
force being at once detached in aid of the police and volunteers.”

(6) “On the morning of Wednesday, the 11th instant, at 8a.m., I
received, at Spanish Town, a letter from the Baron von Ketelholdt, Custos
of St. Thomas in the East, written the previous evening from Morant Bay,
to inform me that serious disturbances were apprehended, and to request
that troops might be sent. The circumstances stated in the baron’s letter
( 122 )

afterwards to the Secretary of State; and from which it
appeared that, on the receipt of the first advices of the first
lawless acts of violence towards the police, and the threat
of further violence, he treated it merely as a case of ordi-
nary riot, and was content with recourse to military force
in aid of the civil power, and troops were at once sent to
the disturbed district as speedily as possible, though, un-
happily, too late to prevent further and worse outrage.

The impression made upon the mind of the Governor
and his council, at the time, by the recital of the horrors of
the massacre, which he received from the survivors, would

were to the effect that on Saturday, the 7th October, whilst a black man
was being brought up for trial before the Justices, a large number of the
peasantry, armed with bludgeons, and preceded by a band of music, came
into the town, and, leaving the music at a little distance, surrounded the
Court-house, openly expressing their determination to rescue the man
about to be tried, if convicted. One of their party having created a con-
siderable disturbance in the Court-house, was ordered into custody, where-
upon the mob rushed in, rescued the prisoner, and maltreated the policemen
in attendance. No further injury appears to have been done at this time,
and the magistrates seem to have thought so little of the occurrence that
no steps were taken to communicate with the Executive. On Monday, the
9th October, the Justices issued a warrant for the apprehension of twenty-
eight of the principal persons concerned in the disturbance of Saturday,
and confided it to six policemen for execution. Upon the arrival of the
police at the settlement, where the parties lived—called Stoney Gut, and
about three or four miles from Morant Bay—a shell was blown, and the
negroes collected in large numbers, armed with guns, cutlasses, pikes, and
bayonets. They caught and ill-treated three of the policemen, putting
them in handcuffs, and administering to them an oath upon a Bible which
they had ready, binding them to desert the whites, and join their (that is,
the black) party. Up to this period (Monday night) the Custos had not
been in the parish. He arrived on Tuesday, the 10th October, about noon,
but did not seem, as I am informed by Mr. Stephen Cooke, clerk of the
peace and magistrates, even now to think much of what had taken place ;
and it was only at the urgent entreaty of Mr. Cooke that he was induced to
write the letter to which I have already adverted. Upon receiving this
communication at 8 am., I immediately sent for the Executive Com-
mittee; and, after a hurried consultation with them and with the Attorney-
General, an express was sent over to Kingston, requesting the General
commanding her Majesty’s troops to get ready one hundred men for
immediate embarkation.”
( 123 )

be depicted by himself in his despatch; and would be
important, as giving in his mind (a), a fearful colour and
character to the rebellion, as likely to be marked, unless
summarily crushed, with dreadful and savage ferocity. In
substance, it was afterwards but too amply verified (0).
Whether such an outrage was an outbreak of rebellion,
and likely to spread, would, of course, a good deal depend
upon whether, in point of fact, it was repeated or imitated
in any other place, by insurgents of the same class and
colour ; and this was the case in the present instance (c),

(a) “ Whilst proceeding down the harbour, we met H.M.S. Wolverine
from the scene of action, bringing up the ladies, gentlemen, and children
who had escaped, and some few prisoners who had been captured. ‘The
accompanying report was also received from the senior naval officer, con-
veying an account of the sad scene which had presented itself on the arrival
of the Wolverine at 9 a.m. on Thursday morning (October 12th). The
shocking tale was still more harrowing, as related by those who had
escaped, and some of whom appear to have got away in a most wonderful
and almost miraculous manner. No less than sixteen gentlemen were
known to have been killed, and eighteen others wounded. The most
frightful atrocities were perpetrated. The island curate of Bath, the Rev.
VY. Herschell, is said to have had his tongue cut out whilst still alive, and
an attempt is said to have been made to skin him. Many are said to have
had their eyes scooped out; heads were cleft open, and the brains taken
out. The baron’s fingers were cut off, and carried away as trophies by the
murderers. Some bodies were half-burnt, others horribly battered. Indeed
the whole outrage could only be paralleled by the atrocities of the Indian
mutiny. The women, as usual on such occasions, were even more brutal
and barbarous than the men. The only redeeming trait being that, so far
as we could learn, no ladies or children had as yet been injured. I append
a narrative by Mr. Stephen Cooke, Clerk of the Peace and Magistrates, one
of the survivors, of the circumstances immediately preceding the massacre,
and, so far as he knows, of the occurrences of the massacre itself; but it is
obvious, from the nature of the case, that it can only be a most imperfect
and incomplete account. The true and full story can now never be hoped
for. All the principal inhabitants of the district had been killed, and the
entire volunteer force (with the exception of a few who escaped), consisting
of twenty-two officers and men, nobly died at their posts, gallantly doing
their duty.

(b) Vide the Evidence of Mr. Cooke and others, before the Royal
Commission.

(c) Thus, on the second day after the outbreak, there was another mas-
sacre, by a large party of armed rebels, at an estate called Amity Hall;
( 124 )

for the Governor had reports of similar murders perpe-
trated or attempted by armed bodies of negroes at other
places.

Whether the Governor had ground to believe that the
insurrection was likely to spread, would depend on the
communications he received as to the disposition and tem-
per-of the people, and their language and demeanour, and
apparent readiness to join in the rebellion, if it should
spread ; and the communications received by the Governor
were such as were calculated to lead him to that conclu-
sion (a).

and the Governor had a statement of Mr. Jackson, Stipendiary Justice,
who was left for dead at Mr. Hire’s house, when that gentleman was
killed :—“ After finishing all the magisterial business at Port Antonio on
Wednesday last, I started at an early hour on Thursday for Belvedere. On
my way through Manchioneal, I was told of the sad events which had
occurred at Morant Bay the day before, and was strongly advised by him
not to proceed to Belvedere, but to retrace my steps. However, thinking
that I had some influence with the people of my late district, by virtue of
my position as Stipendiary Justice ; and, being imperfectly acquainted
wirh the real state of things, I resolved to proceed. On my way I called at
Amity Hall Estate to get some refreshment. Mr. Hire, the attorney of the
property, and myself both hoped that the accounts we had heard were
exaggerated, As I was leaving Amity Hall, Mr. Chisholm, the overseer of
Golden Grove, and Dr. Crowdy, of the same place, came up for refuge, and
it was arranged that we should all remain there. About 10 o’clock p-m.
(after I had retired to bed), I was aroused by Mr. Hire, and told by him
that the rioters were close to the house. I immediately got up, and met
them at one of the entrances of the house. I tried to reason with them,
but to no purpose ; they effected an entrance, and in a few minutes I was
prostrate, washed in my blood, and, as I suppose, left for dead. In the
morning I found myself on another bed. Soon after Mr. Hire desired to
be placed on an easy-chair, with difficulty I raised myself on the bed to see it
done ; he moaned once, and died. I came down in a man-of-war, and am
still in a very weak state; but consider it my duty to report this for his
Excellency’s information and orders.”

(a) For instance, the communication from the overseer of Mr. West-
moreland’s estate :—‘‘ Metcalfe, October 17.—We are quiet here, but it is
the general opinion that if a row was begun there would be soon plenty to
join, and that some military force should be here to put a stop to anything
that may spring up, and every one is very anxious, not knowing what may
happen. There has been some threatening language, but it has been what
was going on for some time, when the people would not turn out early in
( 125 )

When, therefore, next day (a) he received intelligence of
the dreadful massacre which had occurred, and found that
the blacks had risen in rebellion, and that it was expected
that they were preparing to advance in a career of plunder
and murder, he at once saw that it was a case with which
it was impossible for the small military force then at his
command to cope, without declaring martial law; and,
accordingly, he at once summoned a Council, with whose
concurrence, as they were unanimously of the same opinion,

August ; when asked, their answer was, they were waiting for the law from
St. Thomas in the East, which, after what has occurred, seems ominous ;
and trust you will use your influence to get us protected, or we might be
sacrificed ; the excitement here is intense.”

(a) “On Thursday, the 12th, about half-past 4 p.m., I received a private
letter from a Mr. Davidson, a magistrate of St, David’s, which had been
sent across the country, stating that it was reported the blacks had risen,
and murdered the baron, two sons of the rector of the parish (Mr. Cooke),
and several other persons, and stating that it was expected the rebels were
coming along the line of the Blue Mountain Valley, to destroy the pro-
perties contiguous thereto, and to murder the white and coloured inhabi-
tants. Upon receiving this communication, I wrote a hasty application to
the General for 200 more troops, and then at once got upon my horse, and
set off for Kingston. Finding that the General had promptly and judi-
ciously anticipated, to a considerable extent, the requisition I had written,
it appeared to me that the only additional step to be taken immediately,
was to detach a company of white troops from Newcastle, to proceed along
the line of the Blue Mountain Valley, and try to intercept the rebels, who
were said to be coming up in that direction, whilst a party could be
detached from Morant Bay to meet and co-operate with them. This was
accordingly done; by midnight the order was sent off to Newcastle, and
soon after 3 a.m. the company was under arms, marching to execute the
service ; a letter having been written by me to General Jackson, an
old Indian officer of ability and experience, requesting him to attach
himself to the party in his capacity of a Justice of the Peace, and to
afford the benefit of his Jocal information and general experience. The
Executive Committee met me in consultation at the residence of General
O’Connor, and expresses were sent out to collect the Privy Council, which
was assembled a little before midnight. The result of the deliberation was,
that it was considered expedient at once to declare martial law, and notices
were forthwith sent out to the members of Privy Council and members of
assembly to meet at 8 a.m. next morning to hold a council of war, this
being the legal formality required by the 9 Vict. c. 35, s. 95, 96, 97, 98.
( 126 )

it was resolved to declare martial law; and, accordingly,
next day, it was declared under statutable authority (a).

The Governor, of course, could only act on the informa-
tion he, from time to time, received, and the information
he received described the insurrection as spreading rapidly.
Accoiding to the accounts the Governor received (6), so
rapidly and alarming did the insurrection spread, that an
officer and magistrate had to act on martial law, on his own
responsibility, in his own district; that is, to direct the
military to act as in a state of war or rebellion.

The impression made on the mind of the Governor by
the outbreaks of insurrection, and the judgment he formed
of it, as to the necessity for martial law, on account of the
disparity of military force, would be best shown by the des-
patches he wrote on receiving intelligence of the outbreak
of insurrection. The Governor first demanded military
assistance (c); and, on the next day, finding this would not

(a) Vide ante, p. 46, et vide p. 125, im notis.

(6) “ Major-General Jackson to Governor Eyre.—Mahogany Vale, Fri-
day, October 13, 1865.— Your Excellency, I humbly tender to your Excel-
lency the cordial thanks of the gentry of Port Royal and St. David’s for the
prompt despatch of troops. The insurrection is rapidly increasing, and I
have, with advice of my officers, despatched an express, calling on the
officer commanding at Newcastle to send to Mahogany Vale 100 rank and
file to join Captain Field. There being no time to refer to your Excellency
on such a momentous emergency, I have declared martial law in the
mountains of Port Royal, St. David’s, and St. Thomas in the East, and
hope the same will meet with your Excellency’s approval. The rebels are
making such rapid strides, I march in the course of an hour to meet them,
and your Excellency may depend upon her Majesty’s subjects being pro-
tected. Whilst I am alive there shall be no repetition of an East Indian
mutiny and massacre.—P.S. A serious number of murders of white and
coloured population is hourly expected.—F. J.” It is to be observed that
this so-called martial law only meant the action of the military under, and
in aid of, civil authority, avery different thing, though it hag often been
confounded with martial law. The General in command well knew the
difference, and he alludes to this detachment afterwards, in these terms :—
“The force under Captain Field, acting under civil guidance of General
Jackson. It moved before martial law. I have sent stringent orders to
Captain Field, that he may be relieved from supervision of a magistrate.”

(c) “I regret that information has just been communicated to me, that
the insurrection at Morant Bay has assumed a serious form; that the
(-.127 )

be sufficient, by reason of the extreme weakness of the
military force at disposal, without the power of using the
means and rights of war against the rebels generally, held
a council, at which, with its unanimous assent, martial law
was proclaimed.

On the second day after the outbreak of the rebellion
into insurrection, martial law was declared in the disturbed
district, by which it was declared that the military forces
should have all power of exercising the rights of belli-
gerents against such of the inhabitants as the military
might consider opposed to the Government, and to the
peaceable and well-disposed subjects (a).

On the day after the declaration of martial law the
Governor (6) wrote, under an evidently deep sense of the

rioters have burnt down the Court-house, released all the prisoners, and
murdered several white persons. It is requisite to make preparations to
act promptly, and I have, therefore, to request, &c., for more troops.”
(Governor Eyre to General O’Connor, 12th October.) Then, on the same
day, “ From information I have received, I have reason to apprehend that
the insurgents, after devastating Morant Bay, and massacring nearly the
whole of the white inhabitants, are intending to march upon the line of the
Yullahs, via Sherwood Forest and Richmond. I have to request you will
direct fifty men, in light marching order,” &e.

(a) “Victoria, &c. Whereas we are certified of the committal of grie-
vous trespasses and felonies within the parish of St. Thomas in the East,
and have reason for expecting that the same may be extended to the neigh-
bouring parishes of the county of Surrey; we do hereby, by the authority
to us committed by the laws of this our island, declare and announce that
martial law shall prevail throughout our said county (except the city and
parish of Kingston), and that our military forces shall have all power of
exercising the rights of belligerents against such of the inhabitants of the
said county (except as aforesaid), as our said military forces may consider
opposed to our Government, and the well-being of our loving subjects.”
(Papers, part 1, p. 16.) This, it will be seen, entirely accords with the
definition of martial law, according to the best authorities, declaring an
absolute military authority, and giving the military rights of belligerents,
though not, of course, recognizing such rights in the rebels, for rebels can
have no such rights; they have begun the state of war treasonably and
rebelliously, and must suffer by it, but it confers no rights upon them.

(6) “ Governor Eyre to the Governor of Barbades.——Morant Bay, Oc-
tober 14, 1865, 4 p.m.—I have the honour to inform you that an insurrec-
tionary outbreak of the most serious and alarming kind has taken place in
( 128 )

imminency of the danger, and the pressure of the emer-
gency, an urgent despatch to the Governor of a neighbour-
ing colony for further military aid, pointing out the military
considerations which gave a rebellion a formidable cha-
racter.

Then, as to the execution of martial law, the supreme
direction of the movements and measures to be adopted,
and the orders issued immediately upon the proclamation
of martial law (a), the Governor desired the Commander-

this island. The barbarous massacre of a large number of gentlemen,
being ministers of religion, magistrates, proprietors of properties, or per-
sons otherwise interested in or connected with estates in this island, has
taken place. A large amount of property has been destroyed ; numerous
estates in high cultivation have had to be left entirely abandoned; a large
portion of the south-eastern, eastern, and north-eastern portion of the
colony has been put under martial law; and general apprehension and
alarm exist lest the movement extend to the entire island, and the insur-
rection become a general one. In this emergency, a large portion of the
troops stationed in this colony have been rapidly withdrawn from the head-
quarters, and distributed at various points in the disturbed districts. I
have myself been for the last two days personally engaged in directing and
superintending, in conjunction with Brigadier-General Nelson, these move-
ments, and I am now on board her Majesty’s ship Wolverine, en route to
Port Antonio, a place on the north side of the island, to establish another
military post. The whole of the troops in this colony do not exceed above
1,000 (exclusive of those at Honduras and Bahamas), and I cannot conceal
from myself, that such a number is utterly inadequate to suppress the
insurrection in the districts where it now exists, and would not supply any
troops whatever for the assistance or defence of other portions of the colony,
should the outbreak, as is feared may be the case, unhappily extend to
them. It may be as well to bring to your Excellency’s notice, as an addi-
tional reason for this urgency, the immense area of Jamaica, extending
about 150 miles in length, and from 50 to 60 in breadth, and the physical
features of which are of such a nature as at once to prevent a rapid inter-
communication with distant points, and render exceedingly difficult all
inland movement of troops, whilst they afford both shelter and supplies of
food to the insurgents in fertile fastnesses of the mountains, where a large
portion of the peasantry reside. There is no intelligible cause for this sad
outbreak, and nothing but the most prompt and vigorous measures will put
it down.”

(a) Having had no man-of-war in port or English steamer, I chartered
the Caravelle, one of the French line ot packet ships, which fortunately hap-
pened to be in port, and was most considerately placed at my service by
( 129 )

in-Chief to send an officer to accompany him to take com-
mand of the troops in the field, and a Brigadier-general was
accordingly appointed, with whom the Governor personally
arranged the general nature of the military operations, for
the purpose of suppressing the rebellion, leaving to the
General the military direction, and he in his turn leaving
to the officers in command of detachments particular
orders. He and the General co-operated in carrying out
any measures they thought proper. But the General exer-
cised his own judgment, and carried out such only as he
thought proper.

The supreme military authority in the district under
martial law was considered to be in the General in com-
mand, subject to the Commander-in-Chief. It is of the
nature of martial law to place the district under military
authority, and the communications which took place, before
and after the proclamation of martial law (a), illustrated

Captain Burat. Having completed my arrangements, I returned to
Kingston, where I met the council of war, and with their concurrence
at once declared the county of Surry, excepting Kingston, to be under
martial law, and requested the General to send an officer to accompany me
to take command of the troops. He named Colonel Nelson, the Adjutant-
general, upon whom I at once conferred the local rank of Brigadier-general
in the militia, in order to give him seniority over all other officers of militia
or volunteers who might be present.”

(a) Thus, the day before the proclamation of martial law, the Governor
wrote to the Commander-in-Chief for a military force to proceed, under the
direction of a magistrate. And the Governor wrote to a Justice of the
Peace his instructions, by which the troops were directed to proceed, under
him, in his capacity of Justice of the Peace. So, on the same day the
Governor wrote to the Commander-in-Chief a requisition for another
detachment of troops in another section, so as to hem in the insurgents on
this side, and prevent their extending their ravages in the direction of the
metropolis, as well as guard the outlying estates in the vicinity of the dis-
turbed district ; and he added, “ Mr. Fyfe, one of our ablest magistrates,
will accompany the detachment.” In these instances the requisition pro-
ceeded from the Governor, and the troops were to act under magisterial
direction. Under martial law the military authorities acted independently.
So, in districts not under martial law, the troops only moved and acted
uuder the direction of the magistrates. Thus the Brigade-Major re-
ported :—“ Falmouth, November 3, 1865. For the information of the

-Major-General commanding, that, on requisition from the magistrates of
K
( 130 )

the distinction between the action of the military in aid of
the civil power, and under its control, and the independent
action of the military under martial law.

This distinction was well understood by the General in
command (a), who, in his despatches after the proclamation
of martial law, showed a thorough consciousness that the
effect was to give the military independent powers of
action, and to invest him with the supreme direction.

In accordance (b) with the highest authorities, both mili-

Westmoreland, Lieutenant Brett, with a party, proceeded from Montego Bay.”
And then Lieutenant Brett reported, to the Brigade-Major, “For the
information of the Colonel commanding, that in consequence of a requisi-
tion (copy forwarded last night), signed by three magistrates in this neigh-
bourhood, for troops, the foree under his command left Montego Bay for
this place, where I intend to remain, in order that the magistrates may
avail themselves of the presence of the military, to make any arrests they
may deem proper.” (See Parl. Pap.)

(a) Thus, General Nelson, in almost his first letter to the Commander-in-
Chief, after martial law was declared, wrote:—‘“‘ So far as reports have been
received, all operations have been satisfactory, except that the force under
Captain Field, acting under civil guidance of General Jackson, has not
reached the point Easington, named by his Excellency the Governor.”
(Vide ante p. 126.) “The detatchment moved before martial law was pro-
claimed ; hence Captain Field isin no way responsible. It has deranged my
plans, and I have sent stringent orders to Captain Field, and hope he will
receive them, and thus be relieved from supervision of a magistrate. “The
court-martial I named in my letter yesterday as ordered for this day, has
sentenced twenty-five to death, and they have been hung.” That is, the
court was ordered by him, without any reference to the Governor, and $0,
all through, the acts of the General showed that he considered that he pos-
sessed supreme authority in the district, and independent powers of action,
precisely as in war, without any necessity for reference to the civil
power.

(0) The Duke of Wellington said, in the House of Lords, on the Ist
April, 1851, in reference to the Ceylon rebellion of 1843, “That martial
law was neither more or less, than the will of the General who commands
the army, in fact martial law meant no law at all”—and Earl Grey on the
same occasion said, ‘ That he was glad to hear what the noble Duke had
said with reference to what is the true nature of martial law, forit is exactly
in accordance with what I myself wrote to my noble friend (Lord Torring-
ton) at the period of these transactions in Ceylon. I am sure I was not
wrong in law, for I had the advice of Lord Cottenham, Lord Campbell, and
the Attorney-General (Sir J. Jervis) and explained to my noble friend that
what is called proclaiming martial law is no law at all, but merely for the
¢ ¥3t }

‘

tary and civil, the General in command assumed and
exercised supreme authority as to all military movements
and measures, whether in the field or in court-martial, or
as to the acts of the Provost Marshal, subject only to the
control of the Commander-in-Chief.

This would result necessarily from the declaration of
martial law, which, in terms, declared and announced, that
martial law should prevail, and that the military forces
should have all power of exercising the rights of belligerents
against such of the inhabitants of the county as the military
forces might consider opposed to the Government, and the
well-being of its subjects ; so that as to the measures to be
taken, and the persons against whom they should be taken,
the power rested entirely with the military authorities,
although the General acted in concert with the Gover-
nor (a).

purpose of public safety, in circumstances of great emergency, setting aside
all law, and acting under the military power, a proceeding which requires
to be followed by an act of indemnity when the disturbances are at an end.”
[This, however, was an error, vide ante, Part I.] And Sir J. W. Hogg said in
the House of Commong, on the 29th May, 1851, thata member was inclined
to carp at the statement of the Judge Advocate-General (Sir D. Dundas),
that martial law was a denial of alllaw. “But the Judge Advocate was
quite correct —it was a denial of all law, and could not be the subject of
regulation. The rule was, that when martial law was proclaimed, the
commanding officer must use his own discretion.” Stephen, in his “ Com-
mon Laws of England” (vol. ii. p. 561,) says, “ Martial law may be de-
fined as the law (whatever it may be) which is imposed by the military
power, and has no place in the institutions of this country, unless the
Articles of War, established under the Acts just mentioned, be considered
as of that character.” That is, our ardinary instructions.

(a) Despatch of Governor Eyre, 20th Oct., in which he expresses his obli-
gations to the Commander-in-Chief, for the extremely ready and rapid
manner in which his applications for troops or arms were met, adding :—
“To Brigadier-General Nelson I owe it, that all my wishes, as regarded
military arrangements in the disturbed districts, were carried out with the
utmost promptitude and efficiency. We never had a difference of opinion,
even upon the propriety or policy of a single act or movement, and the
public service was consequently conducted, not only satisfactorily, but
pleasantly. I regarded it not only desirable, but a positive duty, to be per-
sonally present to direct and superintend the military movements in the
disturbed districts. From the first moment of the outbreak, up to the date

K 2
( 132 )

The measures taken immediately upon the preclamation
of martial law were succinctly stated (a) by the Governor, in
his despatch, a few days afterwards, to the Secretary of State.
In that despatch he very clearly stated the principal
objects to be attained :—First, to save the lives of the
ladies, children, and other isolated and unprotected persons
in the districts where the rebellion existed. Secondly, to
head the insurrectionary movement, and prevent the further
spread of the rebellion in its progress along and around the
east end of the island. Thirdly, to punish the rebels and
restore peace to the disturbed districts. He added, that,
“ considering the extreme urgency of the case, and the mag-
nitude of the interests at stake, I considered it my duty to
make preparations for proceeding in person to the scene of
disturbance, to superintend and direct the operations which
might be necessary.”

The measures which were taken (6), immediately on the
declaration of martial law, thus personally directed by the
Governor, as stated by him in a despatch he wrote a
week afterwards to the Secretary of State, comprised
military movements, with a view to rescue the white inhabi-
tants, who had been driven from their homes from fear of
slaughter, and also with a view to the attack or apprehen-
sion of the rebels, some of whom were speedily captured.

of my return to Kingston this afternoon (20th October), every disposition
of the troops, and every movement, has been made by Brigadier Nelson
under my own personal instruction and approval.

bility of what has been done, therefore, rests upon me.

(a) Despatch of Governor Eyre, October 20th.

(0) “Early on the 14th October, having made arrangements for the re-
mainder of the party at Port Morant to march to Bath, to co-operate with
the detachment of thirty-five already there, and under the guidance of
several settlers of the district, who had come up with us for the purpose, to
collect and bring down the ladies, children, and other refugees to Port
Morant, we returned in the gunboat to Morant Bay. The prisoners were
landed, and five of them tried by court-martial, four of whom were hung
on the stone archway of the burnt Court-house, near to which all the mas-
sacres had taken place on the 11th. One prisoner was flogged. The Attor-
ney-General of the colony, in his capacity as a captain in the militia, sat
asa member of the court.” (Governor Eyre’s despatch, 20th October.)

The whole responsi-
( 138 )

Measures of repression and protection, from the first, went
on together ; and as all deterrent measures were deemed re-
pressive, and no measures were so deterrent as those of
speedy punishment the prisoners first taken were tried
at once by court-martial—on which the Attorney-General
sat—for complicity in the massacre, which had been com-
mitted prior to the declaration of martial law.

It was manifest (a) from the nature of these movements
as described in the reports and despatches, and which were
undertaken, necessarily, under circumstances of great dis-
tress, pressure, and emergency, that they were directed as
speedily as possible to attack the rebels engaged in
actual insurrection. But as the rebels avoided an en-
counter with the military (6), the latter had to go in pursuit,

(a) Having made all necessary arrangements, we got under weigh to leave
Morant Bay, the gunboat having already been despatched to Port Morant
to take in the refugees collected by the troops. Having made this arrange-
ment, we steamed again to Port Morant, and found the gunboat had
already taken on board the ladies and children and other refugees (number-
ing about 100) collected from the Bath, Plantain Garden, and contiguous
districts. Many of these unfortunate people had suffered great hardships
and run great risks, some having been for days and nights in the cane-
fields or in the woods, without food or clothing, save what they had on, and
subject to all risks which exposure at night in a tropical country entails.
All had come away without any other possessions than the things they had
on. ° The weather was extremely wet, and the little gunboat, though a re-
fuge from the rebels, could not afford to such a crowd either adequate
shelter from the weather, or accommodation of any kind suited to the re.
quirements of delicate women and children. Still the night spent on
board the gunboat, and the subsequent voyage to Kingston, must have
been one of great trial and suffering to the unfortunate refugees. Eventually
they were all landed safely on the afternoon of the 15th. All having been
done for the refugees in the gunboat that was practicable, the troops,
through whose exertions they were collected and brought in in safety,
were re-embarked.” (Despatch of Governor Eyre, 20th October, 1865.)

(0) “ At daylight on the 15th October, the Onyx started for Kingston and
the Wolverine for Port Antonio, where we arrived about 11 a.m.; just in
time to save this settlement from the rebels, who were burning buildings
and destroying property about twelve miles to the eastward, and had
already threatened to come in and destroy Port Antonio this very day. A
large number of the principal inhabitants had taken refuge on board an
American barque, the Reunion.. No time was lost in disembarking the
troops, and by noon a strong detachment were on their way under Captain
( 184 )

with the view of following them into their strongholds, and
dislodging and dispersing them. And it was obvious from
these measures, and the amount of marching they involved,
with the consequent fatigue to all who were engaged (espe-
cially considering the small number of troops employed),
that the impression on the minds of the Governor and all
concerned was, that they were dealing with a rebellion,
which, if not thus speedily and thoroughly put down, might
prove formidable, and if it once rose to a head and became
general, would certainly be fatal.

With regard to the disposition and movements of
troops (a), they were arranged by the Governor in concert
with the Commander-in-Chief, and the General appointed
to command.

The power and functions of the Governor of a colony,
with regard to military arrangements, are very distinctly
enunciated in the following instructions to Governors,

Hole, to meet the rebels reported to be at Long Bay (12 or 14 miles to the
eastward), and to protect the women and children and other refugees in that
district and in that of Manchioneal, to which they were to move in accord-
ance with an arrangement concerted between myself and Brigadier Nelson.
Having made all necessaryjdispositions for the occupation of Port Antonio, the
party stationed at Morant Bay was ordered, in co-operation with the party
expected from Newcastle up the line of the Blue Mountain Valley, at once
to march by night upon the stronghold of the rebels at Stoney Gut, about
four miles inland from Morant Bay, so as to arrive about daybreak, and, if
possible, destroy the stronghold and capture or cut off the rebels. I per-
sonally inspected the Maroons, a fine body of about 150 men, who, in the
most loyal spirit, had come down on the day preceding our arrival, ill-
armed as they were, determined to protect Port Antonio. They were un-
bounded in their devotion and loyalty, and were beyond measure delighted
to see again their former captain, the Hon. A. G. Fyfe, whom I had brought
with me in the Wolverine, and under whose orders they at once placcd
themselves. A party of Maroons had already been of great service in pro-
tecting Bath, and the fact of this singular and isolated people proving faith-
ful is one of incalculable value to the Government in the emergency which
exists.” (Despatch of Governor Eyre, 20th October, 1865.)

(a) In his despatch, October 20th and 24th, he stated :—“ That from the
time of my arrival in Kingston on the evening of the 12th October, to
direct in person the movements of troops and other arrangements which I
considered necessary for the safety of the colony, until the 20th October,
( 185 )

namely (a): “It is his duty (the Governor’s), except in the
case of invasion, or assault by a foreign enemy, to issue to
the officer in command of her Majesty's forces within the
colony, orders for the march and distribution of troops, for
the formation and march of detachments and escorts, and
generally for such military service as the safety and wel-
fare of the colony may appear to him to require, but that
all the military details regarding such distribution and the
manner in which the detachments shall be formed and com-
posed rest with the military officer, who is responsible that
they are conformable in every respect to the instructions
issued to him by the Governor.”

The Governor considered that it was his duty, generally,
as Governor, to issue orders for the “ march and distribution
of the troops, for the formation and march of detachments,
and generally for such military service as the safety and
welfare of the colony appeared to require. The military
details, however, regarding such distribution, and the man-
ner in which the detachments were to be formed and com-
posed, and the direction of their movements and measures
in the declared district, were deemed to rest with the Gene-
ral in command, and were all carried out by him, although
in concert with the Governor.

The general suggestions made by the Governor for the
direction of the military movements, and measures to be
taken, plainly pointed out that the great object was to cut
off or capture the rebels, that is, all those who either were

when I left Morant Bay, satisfied that the rebellion was got under, there
was not a single movement made by Brigadier-general Nelson that was not
undertaken at my own special request and direction, not indeed in writing,
because my intercourse with Brigadier-general Nelson was of so friendly a
kind that the arrangements were decided upon in confidential discussion,
and without our ever having any disagreement or difference of opinion.
Upon the eve of going I left a minute stating the arrangements I wished to
be continued, but which were in fact, with little exception, arrangements
that had been previously agreed upon and determined.”

(a) See despatch of Earl de Grey, Secretary of State for War, to Mr.
Cardwell, Secretary of State for the Colonies.—Parl. Pap.
: 36-5

or had been in arms; all those who had taken an active
part in the rebellion (a).

During the whole period of martial law, the Governor
acted in the most entire harmony with the Commander--in
Chief, and the General in command of the forces, in arrang-
ing with them the necessary military movements; every
disposition and movement of the troops being made
with his approval, so that -he avowed his entire responsi-
bility for what had been done, while giving a general
approval to it all.

According to the military usage in such cases, Provosts
Marshal were put ‘in authority at the two chief military
stations of the district (6); one being the head-quarters of
the Commander-in-Chief, and the other of the General in
command ; and they, subject to the control and direction of
the military commanders, took charge of prisoners, and
issued such regulations of discipline as are usualy enforced
in such cases.

(a) Mem. for the General, after directing military stations:—“ That they
should be sent into the centre of the line between Morant Bay and Port
Antonio, to be divided into two divisions, one to act in the direction of
Morant Bay, or towards Blue Mountain Valley, the other towards Bath,
Plantain Garden River, and Manchioneal districts, each scouring the hills
and the outskirts of the cultivated lands, to drive in, cut off, or capture the
rebels, if any have retired from the lowlands or ,Jands contiguous. If the
Maroons thus act in co-operation with the military parties, I think the
country will be completely scoured, and those in arms against the Queen be
either cut off or captured—a step which is essential, prior to the declaration
of an amnesty.”

(6) At Morant Bay and at Kingston, the former, Ramsay, was under
General Nelson, the General in command, and the other, Major Prendeville,
was under the Commander-in-Chief, General O’Connor. The military
commander, from time to time, issued orders to the Provost Marshal, and
gave their directions as to disposal of prisoners, &c. As, for instance, the
following was issued by one of them, the former:—‘‘ Morant Bay, Sunday,
12 o’clock. Provost Marshal's office, Oct. 18th, 1865. Provost Orders.
1. Police and all well-disposed inhabitants will have passes numbered.
2. All inhabitants to be in their houses at 5 p.m., and not to move out
until 5a.m., unless the military authorities order the evacuation or other-
wise. 3. Persons without passes will be dealt with summarily. 4. All
persons who are aware of any rebel or accomplice, will give information,
to G. W. Ramsay, Provost Marshal.” This notice was stuck up at the
police station, and no doubt was strictly enforced.
( 187 )

The course (a) which by military usage is to be taken
with prisoners under martial-law, may be gathered from the
orders issued by the Commander-in Chief to one of the
Provosts Marshal—at the station more immediately under
his personal command and control.

The general orders issued, either by the Governor (0) or

(a) Major Prendeville, who was appointed Provost Marshal at Up-Park
Camp, Kingston, at the express desire of the Major General Commanding,
received from him special powers, to inflict summary punishment on
those deserving of it, and to release those he thought innocent. “ Jamaica
Command. Head-Quarters, Kingston, 27th October, 1865. Sir—I am
directed by the Major General commanding, to transmit to you an extract
from a letter addressed by his Excellency the Governor to the Major
General. In furtherance of the opinion expressed by his Excellency, and
in consequence of the large number of prisoners now at Up-Park Camp,
Iam to direct you to take pressing steps to dispose of these cases, either by
courts-martial, or, where the charge is not of a serious nature, by the in-
fliction of such amount of corporal punishment as you may deem the
offence merits. Where evidence is wanting in support of a minor charge,
release the prisoner with a caution.—I have the honour to be, Sir, your
obedient servant, (Signed) John Elkington, Lieut.-Colonel, D. A. General.”
And again, Major Prendeville Provost-Marshal, Up-Park Camp. [Ex-:
tract.] “Iam of opinion that all prisoners should, as rapidly as possible
be tried, and those who are deserving of death or flogging be released ; it
is not desirable, with our over crowded jails, to sentence persons to im-
prisonment, nor would I advise that flogging should be resorted to more
than can be helped.” [True Extract.] (Signed) John Elkington, Lieut.-
Colonel, D. A. General. October 27, 1865.

(6) Thus, at Kingston, the Provost-martial received, from the Com-
mander-in-Chief, special powers to deal with prisoners in this way. The
letter, conferring upon him these powers, contained the following extract
from a despatch written by the Governor:—“I am of opinion that all pri-
soners should, as rapidly as possible, be tried; and those who are not deserv-
ing of death, or flogging, be released ; it is not desirable, with our over-
crowded gaols, to sentence persons to imprisonment, nor would I advise
that flogging should be resorted to more than can be helped.” The Com-
mander-in-Chief also wrote to one of the officers in command of detach-
ments:—‘‘I have instructed you to send out parties and capture any rebels
they may discover ; and I am much pleased by your adopting a more de-
cided course with regard to captured rebels. The number you have sent
into camp on charges, or suspicion, caused some embarrassment. One of
two courses seems to me, under martial law, to be the rule for you to adopt.
If, on careful investigation, the captured prisoners are innocent—always
giving them the benefit of the doubt—then release them ; but, if guilty, or
taken red-handed, then summary justice and execution.” He explained
( 188 )

the General Commanding-in-Chief, were, that rebels should
be captured, and that (according to the Queen’s Regula-
tions) all prisoners taken should be dealt with as speedily
as possible by summary enquiry, and that those taken
under such circumstances as to leave no doubt of their
actual participation in the rebellion, should be executed ;
minor punishment being inflicted on those who were merely
convicted of plunder (a).

The Commander-in-Chief (6), having chosen a superior
officer to command as Brigadier in the field, gave him
general, but no special instructions ; but, considering him
as well informed as himself as to the state of affairs, left
him, and the officers under him, to carry on the military
operations according to his own judgment, giving them no
particular directions as to the mode of carrying out martial
law, beyond general directions to capture rebels, and dis-
pose of them summarily, according to their deserts.

The general principle (c) was laid down by the Com-
mander-in-Chief, that rebels were to be captured ; that if
they were guilty, and taken red-handed, 4.¢., under cireum-
stances which made their guilt clear, they were to suffer

that what was meant by this reference to a “ more decided course,” was that
the officer should dispose of prisoners in the field according to his own dis-
cretion.

(a) This, of itself, showed that those only were to be executed who were
convicted of active complicity in the rebellion.

(0) He gave to the Brigadier a memorandum :—“ The Major-General
can give you no instructions, and leaves all to your judgment. But he
would liké you to be careful about burning villages, and not to do so unless
it is clear the inhabitants have joined the insurgents. He gave no instruc-
tions to any officer in the field, except one (Colonel Hobbs), which ran
thus :—“‘ October 20, I was entrusted by Lieutenant-Colonel Elkington,
acting Adjutant-General, to order you to make Moncklands, your head-quar~
ters for some time, sending out parties to scour the adjacent country, and
capture any rebels they may discover. The Commander-in-Chief gave no
more particular instruction to the officers as to the execution of martial
law. He said that at the time Brigadier Nelson proceeded to Morant Bay,
he was as well acquainted with the exigencies of the case as witness was,
and afterwards he knew still better than witness did, what was necessary.

(c) Vide Evidence of Major-General O’Connor.—(Rep. of Royal Comm.)
( 139 )

summary justice; but if this guilt was doubtful, they were
to be released; and this was interpreted by the General
in active command, to mean that all ringleaders, or those who
were found in arms, were to be summarily dealt with (a),
whether or not found actually engaged in conflict or attack,
—as being in arms, not on the side of the Crown, was a
clear act of rebellion.

It might be collected, from the tenor of the orders, and
despatches, that the general view of the military comman-
ders (6) was, that they were to deem themselves in the

(a) Vide Colonel Nelson’s order, October 20, to Lieutenant Adcock :—
“ All ringleaders to be secured; men found in arms to be summarily dealt
with ; minor punishments to be inflicted on the spot.” So in his despatch
from the Brigadier-General, 17th October :—“ Captain Hole’s proceedings
were temperate, decided, and judicious; all rebelscaptured, having been tried,
he had instantly executed.” The context and the other despatches showed
that by this was meant actual rebels, convicted of active participation in the
rebellion ; taken red-handed, as the Commander-in-Chief expressed it.

(d) The Commander-in-Chief, in his orders, implied this ; so the General
in active command, who indeed avowed in his evidence that he relied on it;
“that he deemed the whole population to be rebels, until they proved the
contrary ; and that he was in an enemy’s country, or otherwise, martial
law (he presumed), would not have been proclaimed.” (Vide his Evidence
before the Royal Commission). It is difficult to divine what other view
could possibly be taken, that on what has been shown to be the true theory
of martial law, viz., a state of war. In such a state of civil war, or rebellion,
there can be no neutrality, and so the mere standing aloof was unlawful,
and was primd facie proof of complicity in the rebellion. That being 50,
it was deemed that it was for those who, while thus acting unlawfully, in
violation of their allegiance, were seized, on suspicion, by the forces of the
Crown; it was for them to show that they had not been engaged in the
rebellion ; and hence, the officers always asked for such proof as might, in
most cases, readily be furnished, if, indeed, the men had been honestly
occupied. To have gone on the opposite principle, of arresting, or convict-
ing no one against whom specific charges could not be made out upon evi-
dence obtained beforehand, would not have met the mischief, to meet which
martial law is proclaimed, as it is often impossible to obtain such evidence
in a state of rebellion, in which nearly the whole of the population
are implicated. When, in addition to the prima facie evidence,
there were other circumstances, as, the being found together in bodies,
especially if with arms; the possession of plunder, especially if belonging
to those murdered ; of course, there would be evidence of an active partici-
pation in the rebellion, which would warrant, as the General deemed,
punishment under martial law.
( 140 )

proclaimed district, as in an enemy’s country, in which the
whole population (not actively engaged on the side of the
Crown) were to be deemed primé facie rebels, and liable
to be attacked as such; and that the onus then rested
upon them of proving their innocence of any complicity
in the rebellion ; though it was not to be necessarily
assumed that they were guilty of any active part in it, still
less, of course, without some additional circumstance, that
they were guilty of any of the acts of murderous and
felonious outrage by which it had been accompanied.

The proclamation of martial law itself (a) authorised the
military to treat, as belligerents, all those whom they should
consider opposed to the Crown, or its loyal subjects. And
prima facie, they considered that those who were not with
them were against them (J). The circumstances of the
capture, however, would always, more or less, either aid or
rebut this presumption, and show whether the prisoners
were to be regarded as rebels; especially the circumstances
of their being found in arms, or assembled in bodies ; for
bodies of men assembled in time of rebellion, who may
easily, at a distance, be supposed to be armed, are naturally
suggestive of hostility.

In short, the whole tenor and character of the military
measures adopted, showed that the military Commandeis
dealt with the people in the rebellious districts as a body (c),

(a) Vide ante p. 127).

(6) The result proved that the people perfectly well knew it was their
duty to be on the side of the ‘authorities ; for although—notwithstanding
the horrible character of the massacre, and murders, which accompanied
the outbreak of the insurrection, there were no signs of horror and sym-
pathy on their part—yet, when the military had quite gained the ascen-
dancy, they began to come in and offer themselves as special constables, and

these rebels in disguise, there was reason to believe, committed some of the
atrocities which were afterwards charged upon the troops.

(c) This is the real distinction between the state of war, which is estab-
lished under martial law, and the system which prevails at common law in
ordinary times. The common law deals with individuals; because it is
presumed that there are ample time and means for distinguishing their
grades of guilt, and for requiring strictness of particular proof. But in war
this is impossible; and men are necessarily dealt with a good deal in the
( 141 )

and im the mass; as having a gencral and pervading
character of rebellion—raising a presumption against them
of complicity in the rebellion, which required to be rebutted
to establish their entire innocence, though, on the other
hand, it required to be supported by some further circum-
stances to raise a presumption of active participation in the
rebellion ; and some further circumstances to raise a pre-
sumption of guilt of acts of felony or murder.

Taking the general tenor of the orders to the officers,
their reports to their superiors, and the tacit or expressed
approval of the measures therein stated to have been
adopted, it may have been collected that, in the view of the
Governor and the General in command, martial law required
the pursuit and capture of rebels—that all men found within
the proclaimed district, not on the side of the Crown, were
liable to be arrested, and, if found in possession of plunder,
to be summarily punished ; that all who were found in arms,
or were taken under such circumstances as to show an
active share in the rebellion, were liable to be executed ;
and that those against whom, in addition, there was a pro-
bable presumption that they had committed, or aided and
abetted in acts of murder, before or after martial law, or

mass, and on general presumptions. And let it be borne in mind, that
rebels and traitors, though enemies, are not regular enemies, entitled to the
benefit of the regular laws of war, beyond the natural dictates of humanity.
They are in a state of treason and rebellion against their sovereign. All
who are not active on the side of the Crown are, strictly, liable to be
regarded as in a state of rebellion, unless they can show that they are not
so; and are, therefore, liable to be captured. Nevertheless, it will be
found that distinctions were drawn, on the whole, as carefully as possible,
by the military commanders, between the different grades of guilt and
degrees of proof. Mere passive complicity in the rebellion was never, by
military orders, punished capitally; nor even the mere possession of
plunder, unless there were circumstances to connect it with the actual per-
petration of acts of outrage, such as murder, or attempted murder. The
possession of articles belonging to those recently murdered was certainly
deemed, on principles of presumptive proof, recognised at common law,
sufficient to justify instant execution, in the absence of any explanation.
( 142 )

threats of murder under martial law, were to be exe-
cuted (a).

At first it was supposed that only men found with arms
in their hands were to be considered as in arms, but this
was deemed, practically, to be too strict an interpretation of
the phrase “found in arms” (6); and certainly was not
adhered to.

The General in command of the force in the field (c)
had, on the declaration of martial law, directed offi-
cers to proceed with detachments of troops in different
directions, where it was supposed the rebels were, or might
be, in force, with a view to surprise and attack them ; and
they, from time to time, reported to him, and he reported
to the Commander-in-chief, the nature of the military move-
ments and measures taken.

The General in actual command (d) issued orders of a

(a) Vide the orders of the Governor and the Commander-in-chief, ante,
p. 135; and of the General in command, vide ante, p. 186: and the
despatches of the Commander-in-chief to Col. Hobbs; and of the General
in command to Capt. Hole and Lieut. Adcock, &c., vide post.

(6) It would exclude cases of men who had just left their arms, intending
to resume them.

(c) See the despatches of the Governor to Gen. Nelson :—‘‘ On the 14th
of October, I heard that Stoney Gut was the stronghold of the rebels ; and,
not having the slightest doubt that this was the truth, and that they were
there in force, issued orders accordingly.” “Port Antonio, Oct. 15, 1865.—
The senior officer in command of the troops at Morant Bay will proceed
with detachments to Stoney Gut and James Town (distant about four miles
from Morant Bay). The object is, if possible, to surprise the rebels, who
are supposed to make these places their strongholds. Great discretion is
necessary in making the move, and a trustworthy guide is indispensable ;
the party should move so as to arrive at Stoney Gut at daybreak. Every
precaution to be observed in making an attack, and a reconnaissance should
be made previous to such. The officer commanding the troops at Morant
Bay will communicate as constantly as possible with this station, reporting
all occurrences.” So on the 20th October, he issucd the following order to
another officer in command of another detachment ;—“ Morant Bay, Oct. 20,
1865. G. O. Field Force.—Capt. Hole, commanding troops, Manchioneal,
will detach a party, under command of an officer, &c., to move on the direct
road between Manchioneal and Bath, &c.”

(2) Gen, Nelson’s evidence and despatches :—.“ On arrival at Port Antonio,
( 143)

general nature to the officers in command of detachments,
directing their movements, but necessarily leaving the
more particular measures they might adopt a good deal to
their own judgment.

Then the officer in command of the force gave them
more particular orders, which were to be collected for the
most part from their reports of what they had actually done,
or directed to be done, the effect being that they did their
best to attack and capture those whom they supposed to be
rebels, either in the field, or in their “camps,” or places of
concealment, in the woods, or in the “ bush ” (a).

they refused to go without Col. Fyfe’s orders, saying he was their old
Captain Fyfe, who had been their leader in 1832. I waited till Col. Fyfe
landed, and then issued an order describing the arrangements, and thus
concluding—‘ The above to be considered as the basis of operations of the
Maroon force, but Col. Fyfe is authorised to follow his own judgment, accord-
ing to occurring circumstances, reporting as Frequently as possible all move-
ments.’ By doing this, and by giving conjoint orders to other detachments,
I prevented the rebels from getting to Kingston.” So ina despatch to the
officer in command of another detachment:—“ You will act entirely on your
own judgment, and such information as may be gathered, making excur-
sions in any direction supposed to be advantageous.” So in another
despatch :—“I had to leave much to the discretion of Captain Hole, on
whose judgment and decision I have much confidence.” (Gen. Nelson to
Gen. O’Connor.)

(a) Thus, for instance, Col. Fyfe, the commander of the irregular force of
the Maroons, stated, in his despatch of the 22nd October, that he had been
in quest of a supposed “camp” of the rebels. Soin another despatch of
the 29th October, to the Governor, he described how he had been carrying
out his general directions:—“I have been scouring the whole of this valley,
from the backwoods of Wheelerfield, up beyond Whitehall. <A great deal
of plunder discovered ; everything quiet; the people subdued, and surren-
dering to me fast for some days. J give these papers of protection by
twenties and thirties, pending your Excellency’s pleasure, and provided they
have not been concerned in cases of murder, and have no plunder in their
possession ; these papers are also given to those who bring in the stolen
articles, for otherwise fear would prevent their delivering them up.” So in
another despatch:—TI sent out a party of Maroons in advance to scour the
woods in this vicinity. They met with no one, but a small party is again
to start a little after midnight to search a cave where one of the prisoners
states one of the ringleaders is concealed. As there are several prisoners
here who are said to be deeply impeached, I have, at the request of Captain
( 144 )

The nature of the measures sanctioned by military
authority would be gathered, in the absence of express or
explicit orders, from the express or tacit approbation, by
the military commander, of measures actually taken.
Thus, on the day after the declaration of martial law (a),
the first official despatch from the disturbed district was
sent to the Commander-in-Chief, by the General com-
manding in the field, stating that large bodies of rebels
had been attacked in the very act of felonious outrage, and
that others, taken not in the act, had been at once sum-
marily tried, and sentenced to death by drumhead court-

Field, of the 6th Royals, directed a court-martial to be held at daylight to-
morrow.” (Reports of Colonel Fyfe, Parl. Pap.)

(a) It is important to bear in mind the information conveyed to the
Commander-in-Chief and the Governor:—“ Major-General O’ Connor, C.B.,
commanding the forces of this island, feels much satisfaction in publishing
the following extracts of a despatch from Brigadier-General Nelson, A.D.G.,
commanding the troops in the disturbed district :—‘ Morant Bay, Octo-
ber 14,1865. It would appear Captain Luke had received information
that the rebels were in force at Port Morant, and thus determined to
advance upon them. He did not meet with opposition ; but the gunboat,
on arrival, found a large body (about 800), chiefly women, and in the act of
demolishing the house of Mr. Duffus. They fired three shells from the
82-pounder, and dispersed the mob. Captain Luke had issued orders for
his Bath party to rejoin him at an early hour this morning. His Excel-
leney the Governor during the night obtained information that some of the
chief rioters, who had pillaged houses, &c., were living close by, and at his
suggestion I, at 2 a.m., sent out a party, and succeeded in apprehending
three men. At 6 a.m. I ordered a drumhead court-martial to be as-
sembled for trial of one of those taken up. The court sentenced him to
be hung on a tree, where the inhabitants would see his corpse. Intelli-
gence was received by his Excellency the Governor, rendering it necessary
to throw troops in Port Antonio. I therefore proceed there with forces
stated. The trial of prisoners is now going on in the intended new church
here, and the result, I apprehend, will be against the rebels, strong evi-
dence just forthcoming. I have now detailed, so far as concluded, the
different arrangements made, and can only hope my measures may meet
with your approbation.” This despatch, it will be observed, was pub-
lished by the Commander-in-Chief with satisfaction and with approbation ;
and it is to be presumed the measures here described were duly taken
under martial law, in accordance with military usage.
( 145 +)

martial, which despatch was at once published, with
approval, by the General commanding in chief.

The first important report (a), received from the officer
in command of one of the detachments, described the
rebellion as much more serious and organized than had
been expected, and stated the signs and symptoms of a
state of rebellion which were observed. It also disclosed
that negroes were attacked, if either discovered together in

(a) “Colonel Hobbs to Major-General O*Connor.—Moncklands, St.
Thomas in the East, Jamaica, October 15, 1865, 6 p.m.—Sir,—I have the
honour and the pleasure to report, for the information of your Excellency,
that I marched to-day from Amtrolly St. David into the very heart and
stronghold of the rebel country. We started at an early hour, having
received most correct information of the locality of the insurgents. There
can be no doubt, from what I have witnessed this day, that the rebellion is
much more serious, and more regularly organized than we had at all
expected ; not only have the entire of the disaffected villages been vacated,
but all over the country there are several mounds erected, and flags of
various colours (preconcerted signals) are flying from all commanding
positions ; and it is my duty further to inform your Excellency, that the
class of people who are employed in this rebellion are not the poor, but a
class of small landholders who are, in every sense of the word, freeholders.
Finding this to be the case, and with the concurrence of three magistrates
of experience, I set fire to the entire of the vacated houses. Two pistols
were found, some impromptu drums, and numerous indications of meet-
ings and assemblies in their chapels (native Baptists) and villages. The
amount of horses, pigs, poultry, and comfortable clothing left behind by
the people, as also the amount of coffee, and provisions of all kinds, indi-
cate the utmost amount of comfort on the part of the people composing the
rebellion, who, unfortunately (aided by the natural advantages of the
country, and numerous well-mounted scouts), gave notice of our presence,
and fled. We, however, secured six prisoners, whom I would have shot,
but from the fact of their being unarmed. I now regret I did not do so, as
they are no doubt rebels. We have, however, killed between fifteen and
twenty of them at extraordinarily long distances, having discovered since
several groups of them on the hill sides, and in trees.” The tenor of thie,
and other despatches, showed that the officers considered that persons of the
same class and colour as the insurgents in the disturbed district, and stand-
ing aloof from the Queen’s troops and authorities, were primd facie rebels,
but not to be attacked or executed on the spot, unless found in arms
or assembled in bodies, apparently in arms, as they might, at w distance,
be supposed to be. And this view is to be collected from the orders of the
Generals in command.

L
( 146 )

bodies, or in arms, and that they were captured whenever
they were found, and did not give an account of themselves.
In this despatch was disclosed, for the first time, the diffi-
culty of dealing with prisoners not taken actually in arms,
though under such circumstances as to lead to the belief
that they had been in arms, or engaged in actual insurrec-
tion.

Perhaps the most important point as to the measures
taken under martial law, was as to the mode of dealing
with, and disposing of, prisoners, especially when not taken
actually in arms,or engaged in actual outrage, nor “ red-
handed,” as the military phrase is. For, notwithstanding
the absence of all these circumstances, there might be evi-
dence that they had been engaged in actual insurrection.
And this was considered a class of cases to be dealt with
by court-martial.

So soon as, by prompt and energetic measures (a), it was

(a) ‘It was now clear that, by the rapidity of our movements, we had got
ahead of the rebellion, which, breaking out at Morant Bay, had proceeded
rapidly along the south-east, east, and north corner of the island. By
occupying Port Antonio in time, we not only saved that district from de-
struction, but we met, and stopped the further progress of the rebellion
twelve miles east of it. We had, indeed, accomplished some most impor-
tant results in a singularly brief space of time. A military post was estab-
lished at Morant Bay, and another at Port Antonio, whilst the centre of a
line connecting the two was occupied by the friendly Maroons. The
greater portion of the rebels were, therefore, hemmed in within the coun-
try east of this line. The spread of the rebellion westward was stopped,
and if no independent outbreak occurs in any other part of the island, we
shall have the disturbed districts under control, and can at leisure deal
with and punish the insurgents. At the same time, all the helpless and
unprotected ladies, children, and other refugees, have been got in and
saved. All our most important work being thus done, and the troops com-
fortably established in their barracks, we had for the first time a night of
quiet and rest, on the night of Sunday, the 15th October.” So, in his
address to the Legislature on the 8th November, a week before the cegsa-
tion of martial law:—“ Within three days from the time of the news of the
rebellion reaching Kingston, the rebellion was checked, and hemmed in;
within four days it was crushed, and arrangements made for measures in
the district to capture and punish the great leaders, who have met their
just doom. To this prompt and decisive action I firmly believe we owe it,
( 147)

manifest (as was stated in the same despatch) that in three
days from the declaration of martial law the military
power had got ahead of the rebellion, and its further pro-
gress was stopped in one direction—so that, if no new out-
break occurred in any other parts of the island, the dis-
turbed district would be under control—the Governor
directed his attention to the trial of prisoners taken.

It was necessary, and was plainly implied in these
general orders, that not only should rebels be attacked, or
executed if taken in the act (a), but that where taken
“yed-handed,” in military phraseology (6), that is, under
circumstances raising a strong presumption or probability
of their having taken part in the rebellion, or the outrages
by which it was accompanied; or where, upon summary
enquiry, their guilt should be clear, summary justice should
be done.

Accordingly (c), the superior officers in command of de-
tachments, were not only authorized, but directed to hold
such summary enquiries, by what are called drum-head

under God’s providence, that we are about to assemble here this day.
One moment's hesitation, one single reverse, might have lit the torch which
would have glared in rebellion from one end of theisland to the other, and
who can say how many of us would have lived to see it extinguished ?”
This passage was strongly relied upon, as showing that there was no neces-
sity for continuing martial law or measures of severity. But it was lost
sight of, that this was written rather of the cessation of actual insurrection,
and that such cessation was only caused by terror of martial law, and
terror kept up by these measures. - And in that very despatch he stated, in
the strongest terms, that he believed the island was still in great danger.
Next day, on the 16th, the Governor mentioned that courts-martial were
held, and twenty-seven persons, found guilty, were hung.

(a) This might be done at common law (vide ante p. 29) ; and therefore,
something more must be meant by martial law.

(6) In old legal phraseology, in “ the mainour ;” that is, not in the act,
but under circumstances raising such a strong presumption of guilt that,
by the ancient law, the person so taken might be summarily executed,
without trial (Ashford v. Thornton, 1 B. & Ald.). This, of course, has long
been obsolete in our law; but the doctrine of presumptive proof is still
retained in our criminal law (vide The King v. Burdett, 4 B. & Ald. 122).

(c) Vide ante, p. 83.

L2
( 148 )

courts-martial (a), such as are usual in an army in the
field or in time of mutiny, for the trial of prisoners, and in
capital cases the proceedings were, from time to time, sent
to the General in command for approval. Indeed, if pos-
sible, it appears to have been deemed proper, that the
charge should first be submitted to him before the court-
martial.

On the third day after the declaration of martial law (0),
the General in command of the forces on service sent a

(a) See the despatches of the officers in command of detachments, Col.
Hobbs and Capt. Hall especially. See the despatch of Lieut. Adcock,
who, being a subaltern, did not deem himself at liberty to carry out a
capital sentence, without reference to the General in command ; and it
appears from the despatches and orders of the General, that, as arule, when
there was no pressing emergency, it was proper to submit to him capital
cases, before holding the court-martial, and certainly before execution of
the sentence. In ordinary military law, there is 4 distinction between
regimental and general courts-martial, and only the latter have power to
pass capital sentences, but these rules do not apply to drum-head courts-
martial in time of mutiny, rebellion, or war (vide Simmons on Court-
Martial). And though the lawyers, in Wall v. Macnamara, said that drum-
head courts-martial had no power of life and death, the military witnesses
did not say so, and it is notoriously otherwise.

(6) “Gen. Nelson to Gen. O'Connor, Oct. 14.—I ordered a drum-head
court-martial to be held for the trial of one of those taken up, and the
court sentenced him to death. I at once caused him to be hung on a tree.
The trial of prisoners is now going on, and the result I apprehend will be
against the prisoners, strong evidence being forthcoming.” “Oct. 16. The
court-martial I named in my letter yesterday, has sentenced twenty-five to
death, and they have been hung. Some confessed as having participated
in the murder of Mr. Hire, on the 13th. The Attorney-General, Mr. Hes-
lop, has been a member of the Court, holding a commission as captain of
militia; thus the Court has received the benefit of his legal acumen, a
point of considerable import when the proccedings hereafter may become
the subject of discussion.” This passed through the hands of the Com-
mander-in-Chief, who, of course, would be supposed to know military
usage, and it did not occur to him, any more than to the Attorney-General,
that the courts-martial, under martial law, had no jurisdiction over acts of
rebellion, prior to the declaration of martial law, that is, the very rebellion
against which it was declared. It only declared a state of war or rebellion
existing, and the crimes in question were committed during that state of

rebellion, They had begun the war, and the acts were part of that war, and
liable to the penalties of war.
( 149 )

despatch to the Commander-in-Chief, and through him to
the Governor, disclosing that courts-martial had been held
for the trial of prisoners, and that a number bad been con-
victed and executed for active participation in the rebellion,
and the acts of murder by which it had been commenced
prior to the declaration of martial law. And this course
had the assent of the Commander-in-Chief and the Go-
vernor-General.

In most of the cases (a), in which capital punishment
was inflicted, it was for complicity in the original massacre,
or the acts of murder, or attempted murder, which ensued,
just before the declaration of martial law. And if these
had not been so dealt with, those who had committed the
worst atrocities in the original outbreak, which called forth
martial law, would have escaped, although they included
the ringleaders ; and though these atrocities were perpe-
trated prior to the declaration of martial law, and thus
were, in fact, the very acts of war against the Crown, and
its loyal subjects, which called for it. And the terror in-

(a) The peculiar features of the Jamaica case was, that the worst atroci-
ties were perpetrated on the first and second days of the rebellion, in acts
of murder and massacre against the whites. That such atrocities were not
repeated, was only because the whites, driven from their homes by the
terror thus inspired, found refuge in flight or concealment. But if they
were to return to their homes, it would only be through the terror being
removed through a counter terror, inspired by prompt and terrible punish-
ment inflicted upon the perpetrators of these massacres and murders, which
were all committed previous to the declaration of martial law. If this had
not been done, martial law would have been useless, and obviously un-
equal, for it would have been unequal, indeed, to hang plunderers and allow
murderers to pass by; and to leave them tothe dilatory and doubtful chances
of common law, would have been to wait until the danger was over. Thus
it was that those who were convicted of taking part in the massacre, were
summarily tried and executed. Col. Fyfe shot, without trial, a man whom
he found wearing the ring of one of the victims. And the ringleaders,
Bogle, M‘Laren, &c., were summarily tried ; and it being shewn that they
were present, aiding and abetting at the massacre, they were convicted and
executed. So in several cases men, who had entered the houses of white men
in search of the owners, and as their threats showed, for the purpose of killing
them if they had found them, were summarily tried, and convicted, and exe-

cuted with the sanction of the General.
( 150 )

spired by these summary trials and executions, were made
the means of deterring others from similar atrocities, which
would otherwise have been perpetrated on others.

Very soon after the military operations commenced, the
officer in command of a principal detachment informed the
Commander-in-Chief (a), that he was necessarily em-
barrassed by the large number of prisoners, whom he hesi-
tated to execute, and of course could not retain, and the
substance of the directions he received was that he should
execute all whose complicity in the rebellion was clear; in-
flict minor punishments for mere acts of plunder, and
release the rest, and the General in actual command ap-
proved (b) of a similar proceeding.

When prisoners began to accumulate inconveniently, the
General commanding-in-chief sent to the Colonel in com-
mand of the garrison a despatch to the effect that he was
to deal with prisoners in a more summary manner, and not
to forward more prisoners to head-quarters ; explaining that
he was not to deal with them in all cases capitally, but that,
on account of the necessity of the case, he should deal with
them summarily on the spot; and the General (c) in the

(a) Col. Hobbs’ despatch, 16th Oct., said :—“ Numbers of rebels have
come in, having thrown away their arms, and seeking protection. These
men I cannot possibly undertake to guard. They are embarrassing the
troops, and I believe they are all worthy of death, but I shrink from the
responsibility of executing them, without first hearing your (General
O‘Connor’s) wishes respecting them.” In answer to that he received from
the Commander-in-Chief directions in substance, not to keep prisoners, but
to make the best enquiry he could, and to execute those whose guilt he found
to be clear, inflicting reasonable punishments for offences, and releasing the
rest.

(6) On the 17th Oct., the Brigadier sent to the Commander-in-Chief a
despatch, stating that one of the officers in command of one of the detach-
ments (Capt. Hole), had taken a course, temperate, decided, and judicious.
Allrebels captured, having been tried, he had instantly executed (of course
meaning, if convicted). In several houses he found plunder secreted, and
razed them to the ground, and intimated that where he discovered spoil,
he should adopt a similar course. As to this, however, vide post.

(c) Thus Colonel Hobbs having stated that many prisoners were taken
received a despatch from the Deputy Adjutant-General:—“ The Major-
( 15! )

field gave similar orders, in accordance, as he deemed it,
with the spirit of the Queen’s Regulations (a).

Two days afterwards (0), the same officer in command of
the detachments sent a despatch to the Brigadier-General,
which appears to be approved, announcing the capture of
several ringleaders, who had been engaged in actual outrage
and acts of rebellion, and the trial and execution of some
of the prisoners; and also stating that a great number of
prisoners remained on his hands, and that the number was

General hopes you will deal in a more summary manner, and on no account
forward any more prisoners to this place,” &c. It was at this time,
and was owing to these reports, that the Commander-in-Chief wrote to the
Colonel:—* TI instructed you to send out parties to capture any rebels you
might discover. I am much pleased by your adopting a more decided course
with regard to captured rebels. One of two courses seems to me, under
martial law, to be the rule for you to adopt. If, on careful investigation,
the captured persons are innocent, always give them the benefit of the
doubt, and then release them; but if guilty, or taken red-handed, then
summary justice,” &c.

(a) Gencral Nelson explained, in his evidence, that by the Queen’s
Regulations no prisoners are to be kept more than forty-eight hours
in custody, without their cases being disposed of; and although these Regu-
lations do not necessarily bind in war, yet this does all the more apply in
time of war, on account of the obvious necessity of the case, from the diffi-
culty of dealing with prisoners.

(6) Extracts from a despatch from Captain Hole to Brigadier-General
Nelson :—‘‘ Manchioneal, Oct. 19. I have further the honour to acquaint
you that a great number of prisoners have been brought in by the constables
of this district, all of whom seem to vie with one another to make amends
for their late delinquencies by capturing all the people concerned in the
rebellion. Amongst others, two ringleaders, Andrew Worgs and William
Jones (an escaped prisoner from Morant Bay), both of whom were engaged
in plundering and burning the Mulatto River estate, Mr. Hinchelwood’s
property, were brought in. I assembled a court-martial, and the two men
were hung in the middle of this town on the afternoon of the 17th instant,
On the 18th instant, took two fresh ringleaders, Smart Sampley and
Thomas Peters, both of whom, I believe, will be proven to have taken
prominent parts in the murder of Mr. Hire. One of them acknowledges
to have taken part in the murder, but says that he was induced to do so
by the threats of the others. He also confesses to have taken part in other
murders. I have disposed of several other prisoners by inflicting corporal
punishment, but still there remains a great number on my hands, and this
is swelling every moment.”
( 152 )

swelling every moment. It is plain by the report, and by
the other despatches of the General, that by rebels who
were to be executed, they meant men either taken in arms,
or engaged in actual rebellion, or in acts of outrage.

Active movements (a) still continued, with a view to
supply the loyal with arms and ammunition, and to make
provision for the protection of distant districts, and for the
attack of the rebel strongholds, and the arrest, if possible, of
the leaders, who, it is to be remembered, still remained at
large. This was a week after the declaration of martial
law.

(a) ‘Having placed Mr. Gordon on board the Wolverine, and having
obtained a supply of arms and ammunition from General O’Connor for
t he use of the Maroons and others, I at once set off again in the Wolverine,
about noon on the 17th of October, on my return back to Morant Bay.
At dawn of day, on the 18th of October, we entered Morant Bay. A
hurried pencilled report from Lieutenant Oxley stated that they arrived at
Stoney Gut about daybreak, but that the rebels had disappeared, and the
place was deserted. At 11 a.m. (18th October) we weighed anchor and
steamed for Port Antonio, where we arrived a little before dark. All was
going on well. The reports from Captain Hole’s party at Manchioneal
were satisfactory, and at Port Antonio itself more volunteers had been
enrolled and Maroons had come down and offered their services. Many
rebels had been captured, and several courts-martial had been held and
capital punishment inflicted. Finding that nothing occurred or was likely
to occur to disturb the suitability of the military arrangements which had
been made by Brigadier Nelson, in accordance with my requests, I decided
upon returning to Kingston, first leaving a memorandum with the Brigadier,
specifying the several stations which I desired to be kept and the movements
which I wished to be made. We remained at anchor in Port Antonio on
the night of the 18th October, and on the following day, after landing and
distributing guns to the Maroons and getting on board the Morant Bay
prisoners who had been landed here, we left about noon on the 19th Oct.
for Morant Bay, Brigadier-General Nelson accompanying me to make
Morant Bay his head-quarters for directing further operations from, All
was going on well at the camp. The parties from Stoney Gut had returned ;
more rebels had been captured or shot, and a report had also been received
from Colonel Hobbs, who, after reaching Stoney Gut, and finding it occu.
pied by the Morant Bay detachment, had retired again towards Moncklands
—a position some distance inland, on the line of the Blue Mountain Valley.
Colonel Hobbs had seen and shot a good many rebels, as well as captured
some prisoners.” (Despatch of Governor Lyre, 20th October, 1865.)
(1884

At this time (a), although the insurrection at the scene
of its original outbreak was checked, the Governor, never-
theless, found, that though danger appeared to be removed
in one quarter, it threatened to reappear in others; and he
found ample necessity for renewed energy, and, indeed,
found that the General in command was actively engaged
in directing military measures, and that fresh troops had
been deemed necessary.

The accounts received by the Governor (6) from the

(a) ‘‘ At daybreak on Monday, the 16th October, a court-martial sat to try
prisoners, and twenty-seven were found guilty and hung. Despatches
arrived from Kingston from the Executive Committee and from the Custos
and Justices, expressing a desire for my return, and urging me to proclaim
martial law in Kingston. As there was no pressing necessity for my stay at
Port Antonio, I left the Brigadier-General Nelson to complete his military
arrangements, and on the 16th set off in the Wolverine for Kingston.
Arrived off Kingston by 7 a.m. on the 17th October, I at once communicated
with the General, with the Executive Committee, and with the civil autho-
rities of Kingston. Considerable apprehension seemed to be entertained
that a rising might take place at Kingston, and reports were brought in
that disturbances were apprehended at Linstead, in St. Thomas-in-the-Vale,
about fourteen miles from Spanish Town. To guard against this last con-
tingency, I requested the General at once to send off the troops that were
in Spanish Town to Linstead, and then later in the day to replace them
by troops to be called in from Rock Fort, four miles east of Kingston
During my absence the General had, in concert with the civil authorities
taken all measures and precautions in their power, by increasing the
number of volunteers, both infantry and mounted, calling out the pen-
sioners, and making such other arrangements as were practicable. The
General had also sent a detachment of the 2nd battalion of the 6th Regiment
from Newcastle across the country to Buff Bay (not a disturbed district), aa
a precautionary measure. The party sent out originally at my request from
Newcastle, under Captain Field, to follow up the line of the Blue Moun-
tain Valley, had been strengthened and placed under the command of
Colonel Hobbs in person. From this officer a report had been received,
stating his progress up to a place called Moncklands, and a subsequent
one announcing his intention to move on Stoney Gut, and take that strong-
hold. I found also that the General, in addition to the troops written for
by me from Barbadoes, had made arrangements for recalling about 200 men
from Nassau.” (Despatch of Governor Eyre, 20th October.)

(6) Thus, on Oct. 17, the General transmitted to the Commander-in-
Chief a despatch from one of the officers (Capt. Hole), and said, “I must
leave much to his discretion, in whose judgment and decision I place con-
(° 154)

officers in command of detachments, would pass through
the hands of the General in active command, and the Com-
mander-in-Chief, and he would receive them, with their ex-
press or implied approbation, of the measures taken ; the
necessity, propriety, or expediency of which, in a military
point of view, would necessarily depend upon the aspect of
things actually presented in the field.

The reports of the officers (a) in command of particular

fidence. He has in every way carried out my orders, and has proved him-
self, not only an excellent officer, but, what is still more valuable, a man of
sound sense and judgment.” The report stated to the General that he had
found the huts full of plunder, and that he had every house within a quarter
of a mile of the road, in which plunder was found, fired, and in doing so
upwards of 20 of the rebels were killed. The rebels were firing some of
the houses in front, and everywhere fled at an approach. I am of opinion
that upwards of 60 rebels were killed yesterday by the troops under my
command.” If this were under the orders of the General, and in the exer-
cise of what he deemed a sound discretion, and in accordance with military
usage, what could the Governor say? The Commander-in-Chief, by trans-
mitting these despatches without comment, must be taken to have con-
firmed the opinion of the General, and it was a purely military matter.

(a) Thus, the following is an extract from Capt. Luke’s despatch, com-
manding first detachment, dated Port Antonio, 16th October, 1865 :—
“ Agreeably to your instructions, I left Port Morant at daybreak on the
13th, with Captain Ross and eighty rank and file of 1st West India Regi-
ment, and marched on Bath. When a mile distant from the village, I
received written information that the enemy were on the Rhine estate,
where I found several ladies and gentlemen from the neighbouring estate,
who had been taking refuge in the hills for three or four nights. A large
party of the rebels had been at Bath the previous evening, robbing the
stores, but the Maroons coming down in great force saved the lives of many
who would most probably have been sacrificed. Passing the Plantain Gar-
den River estate, Captain Ross, who was in charge of the escort, ordered
his men to fire on a number of the rebels who were on the hill threatening
our party, and several were killed. Hearing there were several gentlemen
lying on the Golden Grove estate, I sent a mounted party of men to bring
them on; but an alarm being raised of the large body of men on the
estate, I ordered off Captain Ross with sixty rank and file, who found a
number of rebels with cutlasses, who, on seeing the troops, attempted to
escape. Upwards of forty prisoners were made, and several of the rebels
were shot. The wounded gentlemen were brought in, and a number of
refugees joined our party. On arriving at Bowden Wharf, the refugees and
the escort under my command, with the prisoners, were taken on board
her Majesiy’s ship Wolverine. (vide Parl. Pap.)
( 155 )

detachments, to the General in command of the forces in
the field, stated the particular military measures which had
been taken, whether protective, or aggressive, or punitive,
and these received the tacit or expressed approval of the
General and the Commander-in-Chief, and thus present
an authentic account of the military measures deemed
warranted, by military authority, under martial law.

On the third day (a) after the declaration of martial law,
the officer in command of one of the principal detachments
sent a despatch, describing his movements and measures,
stating the rebellion to be in a great measure crushed in
his district, but believed to be in force elsewhere; and
stating the trial and execution of a rebel, who had entered

(a) It is desirable, as far as possible, to let the official despatches, and
extracts from despatches, speak for themselves. The following is from
Colonel Hobbs :—“ Moncklands, Oct. 16.—I have the honour to report we
have been most successful in our advance, and I think, in a great measure,
crushed the rebellion in this quarter. The troops under my command
have behaved not only with gallantry, but with that order which becomes
British soldiers. Private Thomas Murton, of the 6th Royal regiment,
captured the rebel chief William Carr, who entered his house in search of
Mr. Paterson, with the intention of taking his life. He was tried this day
by court-martial, and, after due deliberation, found guilty and shot. This
has produced a wonderful effect throughout the district. Since the execu-
tion, numbers of rebels have come in, having thrown away their arms, and
seeking protection. These men I cannot possibly undertake to guard.
They are embarrassing the troops,and I believe they are all worthy of death,
but I shrink from the responsibility of executing them, without first hear-
ing your wishes respecting them. I have, however, suggested to the
magistrates, that all men of substance, or proprietors of land of 30/. or
upwards, be sworn in special constables, and ordered to escort these men to
Kingston. I hope to-morrow, if all be well, to make a forced march to-.
wards Stoney Gut, in this parish, where the rebels, driven due westward by
Brigadier-General Nelson, have assembled in great force, and where they
have a large supply of gunpowder, arms, &c. As they are all mounted on
mules and horses, it is evident we shall have some difficulty in following
them up. I do not think the insurrectionist spirit extends into St,
David’s, where all seems loyal at present. Postscript.—Since the execution
of the leader, William Carr, the rebels are coming here in numbers, con-
fessing their gnilt, and seeking protection. I have handed them all over
to the magistrates, who say they cannot get special constables to guard
them, and I have no men to perform the duty.”
( 156 )

a house in search of a white person, with intent to murder
him, and stating further, that he was embarrassed by the
number of prisoners taken.

On the next day (a), the fourth from the declaration of
martial law, the Brigadier-General in command of the forces
in actual service, sent another despatch, describing the
movements and measures of a particular detachment, which
he described as temperate, and decided, and judicious, and
by which all rebels captured were tried and instantly exe-
cuted, and houses in which plunder was found, razed.

It would sometimes happen (6) as it must in all military

(a) The second is from Brigadier-General Nelson, commanding in the
field, dated Port Antonio, 17th October, 1865 :—‘‘ Captain Hole, command-
ing detachments of 6th Royal and 1st West India Regiments, had arrived
at Manchioneal, having carried all before them. The whole of his proceed-
ings were temperate, decided, and judicious. All rebels captured, having
been tried, he had instantly executed. In several houses he found plunder
secreted, and razed them to the ground, and proclaimed that where he dis’
covered spoil he would adopt a similar course.” It is plain, from the
distinction drawn between rebels and mere possessors of plunder, that those
who were executed as captured rebels, were convicted of having been
actually engaged in acts of armed rebellion, that is, of having formed part
of those armed bodies of men, who had gone about committing aets of
murder, arson, and plunder. It is necessary to compare the terms of this
despatch with others, inwhich rebels who are to be summarily executed,
are defined as rebels found in arms, or under such circumstances as to make
it clear that they had been in arms, and had been actually engaged in acts
of outrage or of armed rebellion.

(2) “Captain Hole to Brigadier-General Nelson:—Manchioneal, October
19, 1865.—Sir,—I have the honour to report that the detachment, Ist West
India Regiment, consisting of twenty rank and file, reached this about 9
p.m., 17th instant, and that on the morning of the 18th instant I detached
a party of that regiment, about 50 strong, to proceed to an estate called
Friendship, where I had been informed a body of the rebels had assembled ;
but owing to a mistake on the part of the guide, they proceeded to Hayning
and Jericho, and returned by way of Scots Run ; they did not encounter
any rebels, but found Hayning and Scots Run deserted: they fired the huts,
after which they returned to this station. Three men of the 1st West
India Regiment got separated from this party, and proceeded as far as the
Plantain Garden River district, and from their reports I learn a great num_
ber of rebels are lurking in that district. They informed me on their
return last evening that they had shot about ten rebels, three of whom were
concerned in the murder of Mr. Hire. They brought back with them two
cartloads of recovered property, some of which belonged to Mr. Hire (as in
( 157 )

movements, which were necessarily made upon report, that
the private soldiers get separated from their officers (a),
and then perhaps isolated acts of slaughter might be com-
mitted, as to which the officers would necessarily be de-
pendent upon the reports they received from the soldiers,
and in this way might occur casual acts of this kind, which
might or might not be in accordance with military usage,
but these were necessarily isolated instances.

At this time (0), a despatch was received from the
officer in command of a principal detachment, stating the
movements and measures he had adopted, and stating that

one of the pockets of a coat I discovered the two accompanying letters), and
some to Mr. Shortridge (the same being discovered by the crest on two
plated tea-pots).”

(a) Despatch from Colonel Hobbs, dated Blue Mountain Valley, nine
miles in advance of Moncklands, October 19 (midnight).—*‘ Sir,—-I have the
honour to bring to the knowledge of your Excellency, that I marched at
half-past eleven p.m., last night, for the rebel stronghold, Stoney Gut. About
daylight this morning, in passing through this village of cross-roads, where
the rebels destroyed everything, I found a number of special constables, who
had captured a number of prisoners from the rebel camp. Finding their
guilt clear, and being unable either to take or leave them, I had them all shot.
The constables then hung them upon trees, eleveninnumber. Their coun-
tenances were all diabolical, and they never flinched the very slightest.
From this we at once went to Stoney Gut. . . . . This gut or narrow
defile is three miles long, and the men were up to their knees in sticky
mud, at the bottom of which mud our horses’ shoes and ammunition boots.
were firmly imbedded. After utterly destroying this rebellious settlement, I
have returned with my jaded and footsore troops to this spot, where we
bivouacked for the night in another ecclesiastical building, called the
‘ Chigoe-foot Methodist Chapel.’ We have plenty to eat, and the few re-
maining white and coloured people treated us most kindly. Their houses
have all been wrecked, and pistols pointedat them. . . . . Imust not
forget to tell you that I have got Paul Bogle’s valet for my guide—a little
fellow of extraordinary intelligence. A light rope tied to the stirrup, and
a revolver now and then to his head, cause us to understand each other; and
he knows every single rebel in the island by name and face, and has just
been selecting the captains, colonels, and secretaries, out of an immense
gang of prisoners just come in here, whom I shall have to shoot to-morrow.
morning. One famous leader and murderer, rejoicing in the honoured
name of ‘ Arthur Wellington,’ isamong them, and three others. . . . .
If you can send me some sailors and marines, do so, as there is plenty to

do yet.”
( 158 )

several rebels had been captured from a rebel camp, and
that some, whose guilt was clear, had been executed. The
same despatch stated that one of the rebels had been com-
pelled to point out the captains and colonels in the rebel
force, out of a large body of prisoners brought in, and who
were to be executed at once, as having taken active part in
the rebellion, as other parts of the despatch appear plainly
to imply.

On the next day (a), the General in command in the
field sent a despatch to the Commander-in-Chief, stating
that he had authentic information that the rebels were still
in force in some quarters, and also stating that a court-
martial had sat and sentenced several rebels to death, whose
sentences he had approved and ordered to be executed, and
stating that there were many rebels waiting for trial, who
were implicated in the murders.

At the same time (b), the General sent orders to the

(a) Extract of a letter from Brigadier-General Nelson, to Major-General
O’Connor, C.B.—‘ Morant Bay, Oct. 20, 1865.—I have authentic informa-
tion that the rebels were in force—what number was very uncertain— but I
apprehend 300 will be the maximum ; but unless I[ see for myself, I doubt
reports coming from alarmists. During the absence of Her Majesty’s ship
Wolverine, a court-martial sat here (Port Antonio) and condemned several
rebels to death. Having approved and confirmed, the sentences were
carried into effect by hanging them on a gallows erected at the junction of
the streets and road leading to Manchioneal, and in close proximity to the
church. This spot I selected so that the passers-by might profit by the
example. I find Her Majesty’s ship Wolverine has on board, as prisoner,
George W. Gordon, a member of the House of Assembly, and sent to Morant
Bay to examine into his case. My return to Morant Bay is indispensable,
for many reasons ; moreover, there are many rebels waiting trial, who have
been implicated in the murders, &c., at the Court-house ; and, as the rebel-
lion first broke out there, I have little inclination to prevent delay in bring-
ing them to justice, and, however painful it may be to sign ‘ death warrants,’
yet, if duty commands it, I shall do so without the least hesitation.”

(6) ‘‘Mem. for Colonel Fyfe, Commanding Maroons.—l. The Charles-
town Maroons to be furnished with 50 stand of arms, and 1,500 rounds of
ammunition. 2. On receiving the arms, the Maroons to patrol along the
road, and.up the coast, guarding the pass, leaving men in ambush during
day, and scouring.the woods. 3. The Mooretowu Maroons to march accord-
ing to orders, stationing a guard to watch the Cunha-Cunha pass, and a
( 159 )

officers in command of detachments, to patrol in different
directions, when they would be likely to meet with rebels,
giving them general instructions that all ringleaders were
to be secured, and all men found in arms to be summarily
dealt with, so that it is plain he deemed that only those
who were found in arms were to be shot, and that others

supposed to have been active in the rebellion were to be
dealt with by court-martial.

Ten days (a) after the declaration of martial law, the

sufficient force to protect Mooretown.” “Mem. for Lieutenant Adcock,
26th Regiment, A.D.C., proceeding in command of a detachment on field
service. The Planters who have volunteered to act with the troops must be
kept in proper order, though not over strict. On effecting a junction with the
party from Manchioneal, Lieutenant Adcock Will act entirely on his own
judgment, and such information as may be gathered, making excursions in
any direction supposed to be advantageous ; care to be taken that firing of
huts and buildings be not carried to excess; all ringleaders to be secured ;
men found in arms to be summarily dealt with ; minor punishments to be
inflicted on the spot. If, by any circumstances unforeseen, the detachment
from Manchioneal does not arrive at the Post-office as ordered, Lieutenant
Adcock will endeavour to open communication to get it up; but he is
authorised to move about as he deems expedient. Mem. — Lieutenant
Adcock is not, except under written orders, to conform to the orders of any
one but myself.”

(a) Captain Adcock’s despatch:—“ Golden Grove, October 22, 1865.—
Sir, —I have the honour to inform you, that this morning, at daybreak, I
proceeded with 30 men, all mounted, to inspect the country on the north
bank of the Plantain Garden River; I first visited Amity Hall Village,
every house of which I searched; found a gold watch and an ancient por-
trait, set in gold, in one house, which house I burned. I then went to
Wheelerfield, where I flogged three men and burnt a house in which a
quantity of powder was found ; thence to Bachelor's Hall Penn, where I was
met by a party of Maroons with prisoners, five of whom I flogged; I con-
tinued my way to Plantain Garden River Estate Great House, which I found
sacked ; searched the village near, which was deserted ; then visited Win-
chester Estate Village, which was partially deserted; a little plunder was
found ; then returned to Golden Grove, where I arrived at half-past three
o’clock, and found Ensign Cullen with upwards of 100 prisoners ; sent seven
for trial to a drum-head court-martial, which I assembled on the spot; six
were sentenced to death, which will be carried out to-morrow ; I also flogged
a few; the darkness, and my own fatigue, prevented me from disposing of
the others in this way.” Her Majesty’s Regulation : I will read it :—
“ Prisoners are not to be kept in confinement for a longer period than 48
( 160 )

General in command received from the officer in com-
mand of a detachment, a despatch stating that he had dis-
countenanced the taking of prisoners, except those who
had actually been engaged in the rebellion, and stating
that there were 100 prisoners, and that several had been
sentenced to death ; but as his instructions did not warrant
his carrying out the sentence on prisoners brought in by
other detachments than his own, he applied for specific in-
structions, which were sent. The General was particular
in his orders to officers, to receive orders only from himself,
and to keep their force, especially civilians and volunteers,
under military discipline.

So soon as the first efforts (a) to check the rebellion were
made, orders were carefully issued by the Brigadier to the
officers in command of detachments, with a view to restrain
depredations, or other lawless acts of the troops; and the
terrors of martial law (6), which they were upholding against

hours, without having their cases disposed of.” “1 beg to state that I have
everywhere discountenanced the taking of prisoners by the Maroons and
Constabulary, except those who were actually concerned in the rebellion. I
have felt myself compelled to do this, as in many instances it appeared to
me that prisoners were arrested from private ‘pique.’ I beg further to state
that I consider this part of the country free from rebels ; and from the in-
formation I have received, I think it probable that all, except isolated cases,
have gone to the interior towards Blue Mountain Valley ; ifthe rebels were
in an organised state, they could with ease have destroyed every man of my
party ; the bush and cane fields affording such cover as to defy pursuit, and
to render precautions against an ambuscade useless with the force at my
disposal, without being armed with hand grenades. N.B.—I see by my
instructions that I am not authorised to carry out the sentence of death on
prisoners brought in by others than my own detachment; I should feel
obliged by orders prior to acting in the present case ; the evidence against
those tried is very conclusive ; there will be time for an answer.—W. P. A.”

(a) “ After making all these arrangements, I established my head-quarters
at Morant Bay, as being the best place for communication with the different
military posts, and with the sea. While at Port Antonio, my orders were:—
Captain Luke will issue stringent orders against the troops foraging for
themselves, All supplies required to be obtained by written requisitions
on the civil authorities at this place.”

(b) About this time, also, the General issued a stringent order to the
( 161 )

the insurgents, were held over the soldiers if they should
transgress their orders.

Within a week after (a) the rebellion broke out, the Gover-
nor, anxious to unite conciliation with terror, and prepare
the way for a termination of martial law, proposed the con-
sideration of an amnesty, excepting actual murderers, but
his Council were of opinion that it was far too soon to think
of it, and that it would not be safe to do so until more
troops had arrived. .

In the despatch (b) which the Governor wrote to the

officers in command of detachments, that no soldier should be allowed to
enter any house except in the presence ot an officer, and that forany breach
of this order, the offender should be punished by martial law (vide order of
Gen. Nelson to Lieut. Adcock) ; and it is to be observed, that the soldiers
acting under martial law were themselves under martial law, and subject to
its swift and summary severities for any excesses.

(a) “ The Hon. H. Westmoreland to the Governor. Kingston, Oct. 19.—
I quite agree with you as to the amnesty, if it excepts those who have
robbed as well as murdered ; but it may be advisable to delay it until we
have more troops.” “Hon. W. Hosack to Governor Eyre. Kingston, Oct.
19.—It is only a week yesterday since the rebellion broke out ; in that time
not less than thirty persons have been murdered. There has not yet been
time to develope the feeling of the population. It, therefore, seems to me that
an amnesty, or general pardon, even with exceptions, is premature just yet.
The promptness of your Excellency and the troops is rapidly restoring con-
fidence.” ‘‘ Memorandum by the Governor on the letter of Mr. Westmore-
land and Minute of Mr. Hosack, dated Oct. 19, 1865.— The remarks
made by the Committee in reference to an amnesty, originated in my stat-
ing in’a note, from the scene of the disturbances, that I thought the rebel-
lion was so far checked and under control that in a very short time an
amnesty might be proclaimed to all except actual murderers, who came in
and submitted themselves to the Queen’s authority. There was no inten-
tion or proposal to proclaim an amnesty at once.—(Signed) E. Eyre.”

(b) Despatch of General Eyre.—“ Such is a general and hurried outline
of what has taken place up to this evening, 20th October. The narrative
has been hastily drawn up at sea in such intervals as I could obtain from
other avocations, and amidst the inconveniences of board ship. In the recent
case of St. Thomas in the East, the Government had not sufficient warn-
ing, and our precautionary measures were too late. 1 trust, Sir, that you
will fully bear these circumstances in mind ; and that, in doing 80, you will
not regard the just severity which has been exercised otherwise than as a
merciful substitute for the much larger measure of punishment which would
have had to be executed had the rebellion been allowed time to gather head

M
( 162 )

Secretary of State, describing the military measures which
had been taken for the suppression of the rebellion, he sets
forth distinctly what he deemed to be the objects of martial
law, and the means and measures which had been taken to
carry out these objects; that is, the military occupation of
the disturbed districts—the shooting all rebels found with
arms in their hands—and the summary trial and execution
of all who had been actually concerned in the rebellion, and
especially the massacre. And he stated the result of the
measures adopted was to put down the rebellion in the
district where it originally broke out, but that it was wide
spread, and only kept down in other districts, and ready to
burst forth again with fury. And it is to be observed that

and extend itself. It is impossible for me to narrate all the various subor-
dinate arrangements for movements of the respective military corps in the
field, or of the several detachments sent out from them on special service.
It may suffice to state generally that a large number of rebels have been shot
with arms in their hands ; that a great many prisoners have been tried and
hung, shot, or flogged ; and that a considerable number of prisoners are
still on hand awaiting trial by court-martial. It is difficult to arrive at any
correct estimate of the number of people engaged in the rebellion. The
districts where it broke out, and into which it spread, are fertile and very
populous. Different persons have reported seeing from several hundreds to
as many thousands at a time; and Colonel Hobbs reports, in one of his
letters, that there were still thousands of rebels around him. No stand has
ever been made against the troops, and we are not only in complete mili-
tary occupation of, but have traversed with troops, all the disturbed dis-
tricts. We have been singularly fortunate in capturing or shooting a large
number of the principal ringleaders in the rebellion, and many of whom
were personally concerned in the atrocious butcheries on the 12th October
at the Morant Bay Court-house, or in the subsequent destruction of life and
property further to the eastward, as the rebellion extended in that direc-
tion. Very many acknowledged their guilt before execution. It is a
remarkable fact that, so far as we can ascertain, the rebels at Morant Bay
did not proceed in any considerable numbers to the adjacent districts, but
the people of each district rose and committed the deeds of violence and
destruction that were done within it. This fact shows how widespread the
feeling of disaffection is, and how prepared the people of each parish were
to catch the spirit and follow the example of their neighbours. It shows,
too, the extreme insecurity which yet exists in nearly all the other parishes
of Jamaica where the same bad spirit prevails. In the lately disturbed
districts the rebellion is crushed ; in the others it is only kept under for
the present, but might at any moment burst into fury.”
( 163 )

the very same despatch already showed that it was only
kept down by the terror of that military power, which was
still but small, and had not yet been reinforced.

The policy even of an amnesty would depend upon
whether the principal leaders and worst offenders had been
captured or were still at large, and whether their spirit of
insurrection was still determined or subdued ; and it would
be important that the active ringleaders, who were still at
large, had still a determined design for the extirpation of
the whites, and inciting to a “war” against the whites (a) ;
“ colour for colour,” as they expressed it ; urging every black
man to turn out at once; couched all through in terms
which showed a most determined spirit, and clearly showing
that the rebellion was, indeed, only kept under, and might
at any moment break forth with fresh fury. The snake, in
fact, was “scotched not killed.”

The actual insurrection having been subdued in the
course of a week, the continuance of martial law three
weeks beyond that time, and the nature of the measures

(a) On the 17th October, the following letter, signed by the ringleaders,
they being still at large, was found by Captain Oxley, an officer in com-
mand of one of the detachments:—“ Mr. Graham and other gentlemen,—It
is time for us to help ourselves skin for skin. The iron bar is now broken
in this parish. The white people send a proclamation to the Governor to
make war against us, which we all must put our shoulders to the wheels and
pull together. The Maroons sent the proclamation to meet them at Hay.
field at once without delay—that they will put usin the way how to act.
Every one of you must leave your house—take your guns ; who don’t have
guns, take cutlasses. Down at once! Come over to Stoney Gut, that we
might march over to meet the Maroons at once without delay. Blow your
shells | roule your drums! house to house ; take out every man; march
them down to Stoney Gut; any that you find take them in the way; take
them down with their arms; war is at my black skin; war is at hand from
to-day till to-morrow. Every black man must turn out at once, for the
oppression is too great. The white people are now cleaning up their guns
for us, which we must prepare to meet them too. Cheer,men! Cheer in
heart ; we looking for you a part of the night or before daybreak.— Weare,
yours truly, (Signed) Paul Bogle, B. Clarke, J. G. M‘Laren, P. Cameron.
Get a bearer to send us an answer to this, for they determine to make us
slave again. When you do come to Stoney Gut or Hayfield, blow your
shells and tell what place you in from before entered.—E. K. Bailey.”

M 2
( 164 )

adopted, so far as disclosed in the military reports, raised
questions as to the objects with which martial law, in such
a case, required to be kept up and carried out.

The necessity for declaring martial law originally, the
propriety of its continuance, and the nature of the mea-
sures to be adopted, would necessarily depend mainly on
the particular character of the danger to be met; and, from
the first, the Governor (a) was well aware that the danger,
after the first few days, would be, not in encounters with
bodies of armed rebels, but in their taking refuge in inac-
cessible fastnesses, where it would be difficult for troops to
follow them, and where, under the ordinary system of
peace, they might set the law at defiance, and renew the
insurrection at pleasure.

This danger, the sense of which would, it is manifest,
keep the colony in a perpetual state of apprehension and
alarm, fatal to the peace and confidence, it is the great object
of martial law to restore, would be the danger against which
the operations of the troops (6) under martial law would

(a) Despatch of Governor Eyre to the Secretary of State, November 2:—
“His Royal Highness should be made aware that in a country like
Jamaica, with an immense area, uncertain and slow intercommunication
between the different parishes (always too liable to interruption, especially
at this season of the year, by floods).” So in Governor Eyre’s letter to the
Governor of Barbadoes, October 14 :—“ It may be as well to bring to your
Excellency’s notice, as an additional reason for this urgency, the immense
area of Jamaica, extending about 150 miles in length, and from 50 to 60 in
breadth, and the physical features of which are of such a nature as at once
to prevent a rapid intercommunication with distant points, and render
exceedingly difficult all inland movements of troops, whilst they afford
both shelter and supplies of food to the insurgents in fertile fastnesses of
the mountains, where a large portion of the peasantry reside.”

(0) Hence, as stated by Brigadier-General Nelson, in a despatch to
Major-General O’Connor, dated November 20, 1865 :—“The Maroons,
under the skilful leading of Colonel the Honourable A. G. Fyfe, contri-
buted greatly towards the suppression of the rebellion. The pecaliar
nature of this force permitted of the mountains being searched, and with
the Maroons rests the honour and credit of capturing the principal ring.
leader of the rebellion, Paul Bogle, who was only caught after a whole day’s
breaking of the bush.” So, in one of the reports of Colonel Fyfe to
Brigadier-General Nelson, dated Bath, November 2, 1865:—“ As reported,
( 165 )

be properly directed ; and not merely to the encounter, of
armed bodies of rebels in the field, where they would take
care, of course, not to be met with.

Indeed, the danger lay not in the meeting of armed
bodies of rebels, but in the not meeting them ; for, as there
had clearly been some thousands actively engaged in the
acts of rebellion perpetrated, of course they must be some-
where ; and, if they were not met with openly, there was
reason to suppose them to be in the woods, and hence the
most important and arduous duties of the troops, and their
most important and successful measures, lay in scouring the
woods in order to drive in, and capture, those who were
lurking there, to renew the insurrection.

It is to be observed, that at the first declaration of mar-
tial law it was predicted, and pointed out (a) by persons of
experience, that the black population who were implicated
in the rebellion would betake themselves to the natural

I despatched a party of Maroons on the 31st ultimo, to scour the woods near
Moncklands. After finishing my despatches, in order to test the tran-
quillity of the district, I started, attended only by a servant and a boy pri-
soner as a guide, taking the road through Spring Serge Island, Garbrand
Hall, thence through the woods to Moncklands. On arriving at Monck-
lands I found the Maroons there. They had seen no traces of runaways in
their beat, Captain Field and his gallant band having performed their
work so thoroughly as to have left nothing for the Maroons todo. As there
were several prisoners at Moncklands, Captain Field requested me to order
a court-martial. This was done early the next morning: two to be shot,
one to receive 100 lashes.”

(a) “Major-General Jackson to Governor Eyre. Mahogany Vale,
October 31, 1865.—I deem it my duty to report to you, that the remnant
of the rebels of Si. Thomas in the East are retreating by routes I pointed
out some ten or twelve days ago they would take, namely, through St.
David’s into Port Royal, and then via the Yallahs River, northward, into
the fastnesses of St. George’s, &c. By the first route, viz., the Yallahs
River, after passing Mahogany Vale they have every facility, both from the
nature of the country, settlements of blacks, and tenantry on thrown up
properties, to escape into St. George’s by St. Helen’s Gap, miles from any
police-station. By the second route, through very strong defiles into Dallas ;
Qnd, via Barbecue River, north of Bloxburg, through strong defiles by Trafal-
gar Gap, and then south of Ross Valley, by blind paths into Dallas. Yester-
day four of the fugitive rebels from St. Thomas in the East were captured.”
( 166 )

fastnesses which the nature of the country afforded, forest
and bush, mountain and defile, and that thence would arise
a far more formidable danger than that of an encounter in
the field, viz. the lurking of rebels in these fastnesses,
ready to rush forth when the military should be with-
drawn, and renew the insurrection.

From the first (a) the civil or military reports received
pointed to this danger ; for, although bodies of hundreds of
armed rebels had risen, and committed outrages in different
and distant places during the first few days, they then sud-
denly for the most part disappeared, and fled from their
villages, which were found vacant and deserted, into the
woods, where they could lurk in safety.

Hence also, although the military reports (6), received

(a) “Report of Lieutenant-Colonel Hobbs, Stoney Gut, Paul Bogle’s
Chapel, the Heights, October 19, 1865, 9°30 a.m—TI have reached Stoney
Gut from my head-quarters, Moncklands, having shot a number of rebels
on the way. Stoney Gut I found vacated by the rebels, but occupied by a
party of seamen, marines and artillery, who arrived here at daybreak yes-
terday. The rebels have fled towards Somerset and Mount Lebanon. As
this is close to me, and Paul Bogle supposed to be near Moncklands, I
retire in that direction, bivouac where I can, and march early to-morrow,
as there is abundance of work cut out forme. I have directed this rebel-
lious settlement to be utterly destroyed.” Mr. Kirkland, dated “ Bath,
October 17, 1865.—The want of fire-arms prevents my sending out detach-
ments of Maroons into the woods in search of the rebels. Iam happy to say
we have ammunition, but arms are required. I would recommend a sup-
ply of them being sent by a party of Maroons,” It will be found that after
this, by means of the employment of the Maroons, a native force admir-
ably adapted for mountain service, for searching the woods, the active
ringleaders were captured, not without immense difficulty, and beating the
bush for days, and then for the first time the rebellion began to be sup-
pressed.

(6) Report of Colonel Fyfe, 24th October.—“ On arriving at Bath the
reports about Torrington were confirmed. The place is cut up into small
freeholds on the tops and sides of crumpled hills, extending from the Plan-
tain Garden River to the hills to the south of Morant Bay. I therefore
moved early yesterday morning to the place. On ascending about a mile
and a half up the hills some six or seven shots were fired at the party in
advance, wounding one Maroon slightly. Nine of the rebels were killed.
(21st October.) We then advanced, burning all the houses, but leaving a
small out-building at each place to shelter the women and children.
( 167 )

even as late as the end of the month, described encounters
with armed bodies of rebels, the real danger lay in the fact
that they were so rarely thus met with, but preferred lurk-
ing in their natural fastnesses, where it was so difficult to
follow them, and where, if not dislodged, they could remain
secure until the military force was withdrawn, and whence,
only the military force, under the powers of martial law,
could possibly dislodge them.

The reports (a) received at this period, both from civilians
and officers, which were the only grounds on which the
Governor could act, pointed to this danger; the danger of
rebels lurking everywhere in the woods, and ready to renew

Directing the main body of Maroons to put themselves in the hills for the
night, I started to meet the second party, as concerted. These arrived
about ten minutes after me, stating that they had not seen a living soul in
their march of thirty-two miles, except one man just before they came in.
I have little doubt, unless some pressing emergency shall arise, that the
whole of this valley will be the best working ground for the Maroons for a
time. I believe this to be the chief nest of the rebels, and if we hunt them
out, and they take to the woods, they are sure to be taken, as the Maroons
hunt by the track, and nothing can escape them off the roads.” It will be
observed, that in a march through a populous district (for from Torrington
a large body of armed rebels had gone to raise the insurrection), not a
single person was seen in a march of thirty-two miles. The inference to be
drawn from this was, that the rebels were lurking in the woods; at all
events, that inference was drawn by those on the spot, and it seems a fair
one. So Colonel Hobbs, in his report of 19th October, says :—‘“ Three men
went to Plantain Garden district, and from their report I learn that a
great number of rebels are lurking there.”

(a) ‘Mr. Guscott, J. P. Buff Bay, October 18—23, 1865.—We have
sent on several prisoners from here and Metcalfe to Port Antonio. I beg
to suggest to you that a detachment of Her Majesty's troopsshould remain
here during the continuance of martial law, I consider that nothing but
their presence has kept matters here quiet. From information received, a
number of the rioters from St. Thomas in the East are now lurking at
White River, and in the African houses on your estates, and other parts of
the parish. Two other threatening letters were found in the Court-house
yard this morning.” Capt. Hole, in his report of 19th Oct., stated that
three men, who had been in the Plantain Garden district, brought in a re-
port that a great number of rebels were lurking there. So Col. Hobbs
‘mentioned in one of his reports, that he came upon a body of some 300
in the bush, and similar passages abound in the reports.
( 168 )

surrection when martial law should be stopped, and
iilitary be withdrawn. And the belief founded on
reports, that there was almost universal disaffection
> island, and the very fact, that though thousands
sroes had been engaged in the insurrection, so few of
could now be met with, would afford the strongest
ds for these apprehensions.

th reference to the particular measures taken by the
's in command of detachments, all that could be known
3 Governor, would be what appeared upon the face of
reports. It must be borne in mind, with reference to
ilitary reports received from the officers commanding
iments, that it appeared upon the face of reports (a),
hey had been forced to act separately, and suddenly,
3 moment, without mutual communication, not know-
ie force of rebellion elsewhere, and reduced to act on
rumour or report, often incorrect and exaggerated, and
. might lead them to fancy the emergency. graver, and
anger greater, than it really was.

on, further, it is to be observed, that the reports being
y written, often in terms general and indistinct, it
| rarely, if ever, appear on the face of the reports, that
illing of men in the disturbed district was not, under
reumstances, justitied by military usage (6), so that the

Many instances of this will be observed upon careful perusal of these
\(vide ante), and indeed it is believed, that there is hardly one of
vhich does not refer to information received, in the way of loose
r or report ; and it will be noted that each detachment was sent in a
at direction, at a distance from the others, and each officer had to
his own impression of the state of the district, and his own judgment
irily formed on that impression (vide ante, p. 142). It was admitted
parties, that the question of humanity must depend upon necessity,
at must mean apparent necessity, and that would turn upon the sense
ger and the impression of the rebellion derived from rumour (vide
spatch of the Secretary of State on that point).

Which, it is conceived, would be the only question to be considered
rat any other time, supposing the declaration of martial law lawful.
iecessarily follows from principles already laid down, for itis the de-
ion of a state of war, and the establishment of absolute arbitrary
( 169 )

military commander could not by express or tacit approval
be deemed committed to approbation of any acts of homi-
cide not so justified. And it would be almost impossible to

gather from any of the reports that there had been any
such acts.

Even assuming that it appeared, on the face of the mili-
tary reports, that men, unarmed and unresisting (a), were
shot or summarily executed, although that, no doubt, at
common law, when the troops are acting merely in aid of
the civil power, and under subordination to ordinary law,
might be murder, it would by no means follow that it was
so under martial law, which establishes absolute arbitrary
military power, under which men might be so executed as
rebels; and there might be cases in which it might be

necessary or justifiable to kill rebels, even under such cir-
cumstances (0). :

military rule, as in time of war, with this difference, indeed, that rebels,
being subjects, cannot be lawful belligerents against their sovereign, and
cannot be entitled to any rights as belligerents, and being prima facie in a
state of rebellion, on some proof of actual participation in rebellion, it
would be a matter of military usage and expediency, whether, when
taken, they should be executed. And though,no doubt, acts of homicide
wholly unnecessary could not be really expedient, but would be as contrary
to policy as humanity, as tending to drive the population into desperation ;
the question of necessity or expediency would be one of military exigency,
upon the circumstances they appeared to the military officers at the time,
and according to military usages, and it would not necessarily follow from
the statement that so many men had been shot or hanged, that they were
improperly executed.

(a) Thus, where Sir Francis Burdett had said of the conduct of the
troops, on the occasion of what was called the Manchester massacre, that
the troops had killed men, unarmed and unresisting, and had cut down and
trampled upon women ; the court said, ‘‘If this were done; if unresisting
men were cut down, whether by troops or not, it is murder, for which the
parties areliable to be tried by the law of the country.” (Abbott, C. J., 4 B.
& Ald. p. 323). “ At all events it would import a crime, which might be
either murder or manslaughter, according to circumstances.” (Best, J. ib. p.
327). That, however, was not under martial law, but the military were
only acting in aid of the civil power under the common law, it was not
martial law, under which rebels may be dealt with summarily.

(0) For instance, unarmed men might be attacked and shot, ata distance,
( 170 )

And further, as regarded the Governor, to whom these re-
ports were transmitted by the General in command, through
the Commander-in-Chief, he would receive them after
they had passed through their hands (a), and came to him
with their express or implied approval (6), and it would be
difficult for him, on a hasty perusal, amidst circumstances
of great distraction (c), to undertake to overrule their
judgment on a matter so necessarily military in its nature,
and censure officers for unjustifiable acts of homicide, on
mere general statements.

That the Commander-in-Chief, to whom all military re-
ports were transmitted, considered that they were submitted
previously to himself, and that it rested with him to review
them, was manifest from this—that they were, as a general
rule, transmitted by him to the Governor (d), and that

as supposed to be in arms, though, as it turned out, not actually armed ;
or, again (as actually happened in this Jamaica case), a woman lurking
in the bush, or at night, might be taken for a combatant waiting to fire.
It is very difficult to lay down any fixed inflexible rule as to what would be
unjustifiable homicide under martial law, though no doubt, the general
rule would be as above stated. But the Governor, in hastily reading
reports which came to him, through superior military commanders,
could scarcely say that what they had passed over or approved, was
culpable.

(a) Vide ante, p. 144.

(6) Vide ante, p. 130.

(c) Circumstances which, were, with great candour referred to by the
Secretary of State, as reasons for a considerable degree of latitude and in-
dulgence in considering the reports themselves, and the silence of the
Governor or the Commanders as to their contents. As to sentences of
court-martial, he would have aright to, and be bound to, assume that they
were right ; and as to killing of men in the field, in the presence of officers,
he would be entitled to, and bound to, assume that they were deemed proper
by them upon military considerations ; and if so, how could he, who was
not present, overrule their judgment, and hold them criminal ?

(d) Letter from the military Secretary of the Commander-in-Chief, to
the Governor’s Secretary, dated Kingston, Jamaica, October 24, 1865.—*I
am directed by the Major-General commanding, to reply to your letter of
this day’s date, requesting to be furnished with a further report from Colonel
Hobbs, and have the honour to state, for the information of his Excellency
the Captain-General, that the report alluded to containing the statement

‘
( 171 )

he assumed the power of withholding any with which he
was not satisfied, or not being sufficiently clear or explicit.

It was the opinion of the military Commanders that the
supreme command, in a district, under martial law, was
vested in the superior military Commander, at all events,
as to all actions of the military, including convening of
courts-martial and trial of prisoners. Although, in accord-
ance with the instructions issued from the Colonial Office
and the War Office, the Governor had concerted with the
General in command, the dispositions and general arrange-
ments of the troops, and their movements, and the general
nature of the measures to be adopted; the particular
measures, as already stated, were necessarily left to the dis-
cretion of the officers commanding detachments, and he
could not be responsible for acts done under these orders,
in the exercise of that discretion (a).

that “ thousands of rebels are round him,” isnot considered by the Major-
General to be at present sufficiently authenticated, to warrant the assumption
that such is de facto the case, and which the Major-General sincerely trusts

_ Inay not eventually be substantiated ; he considers, therefore, that it would
create a premature alarm as to the position of the troops at that quarter,
were he to despatch the report in question.” This shows that the Com-
mander-in-Chief examined the reports, and would have sent back any
which, in a military point of view, he considered was satisfactory. The
statement in this report as to thousands of rebels was, no doubt, an in-
ference drawn from the fact, that the Colonel was in a district in which
there were thousands of able-bodied negroes, none of whom came forward
to co-operate on the side of loyalty, and all of whom, therefore, were pre-
sumably implicated in the rebellion, added to which, there was the fact,
that parties of several hundreds being engaged in outrages, at different
and distant places, there must have been some thousands actively engaged
in the rebellion. And the report was sent back, evidently not because the
Commander-in-Chief doubted the statementin that sense, but because it
had hastily been couched in such a form as would carry the impression
that there were thousands of rebels in the field, which might have been
misinterpreted, and thus have caused apprehension.

(a) Letter of Lord de Grey, War Office, December 1, referring to a for-
mer letter of Nov. 20.—* It is there laid down that, as the supreme authority
in each colony is entrusted to the Governor, it is for him to determine the
general nature of the operations to be undertaken by Her Majesty’s troops,
for the suppression of rebellion, and to order such steps as the safety and
welfare of the colony may appear to him to require to be taken by the
( 172 )

With regard to the trial of prisoners by court-martial (a),
as the authority to convene a court-martial would be mili-
tary, it rested entirely with the General in command, who
on several occasions accordingly declined to order courts-
martial to assemble at the Governor's request, where he
deemed the evidence not sufficient, or the case not within
military cognizance.

Commander of the forces; while it is the duty of the officer in command of
the troops to obey such orders as he may receive from the Governor, and to
adopt such military measures as may be best calculated to give effect to
them. If the officer in command of the troops should feel any objection,
‘upon military grounds, to the measures ordered by the Governor, he is
-entitled, and it would be his duty, clearly to make known those objections
to the Governor; but if the Governor, upon his own responsibility, should
think fit, in spite of these objections, to adhere to his original orders, it
would then be the duty of the officer in command of the troops to make the
best military dispositions in his power in order to carry them out.” But
this was only as to the general nature of the military operations, and the
Governor, in a despatch to the Secretary of State, Dec. 8, stated that while
all the general arrangements for the suppression and punishment of rebel-
lion had been made under his own directions, the subordinate details, and
the internal management of the districts under martial law, including the
appointment of courts-martial, the trial of prisoners, the approval of sen-
tences, and the carrying of them out, rested entirely with the military
authorities.

(a) “ Major-General O’Connor to Governor Eyre.—Head-Quarters, King-
ston, November 1, 1865.—In reply to your Excellency’s letter of the 31st
October, 1865, requesting that a Military Court may be assembled at Port
Royal to condemn the schooner “ Oracle” for landing goods shipped for
exportation, I have the honour to inform your Excellency that I consider it
is not within my province to try a vessel by a Military Court, and am of
opinion that it comes more within Admiralty jurisdiction.” Major-General
O’Connor to Governor Eyre.—“ Head-Quarters House, Kingston, October
25, 1865.—I have the honour to bring to the notice of your Excellency that
there are now at Up Park Camp seventy-five civil prisoners, sent there for
safe custody by the surrounding magistrates and the authorities of King-
ston. Against many of these prisoners there appear to be no charges or
evidence, nor even documents connected with them in any way. Where
they exist courts-martial at once deal with the offenders; but with regard to
the others, I would desire your views as to their disposal, their maintenance
alone being a great expense to the colony.” Again, Oct. 31, same to same.
—“ Some days ago, by my direction, Lieutenant-Colonel Elkington, Deputy
Adjutant-General, called upon Colonel Hobbs, 2nd battalion 6th Royals,
for list in detail of all prisoners captured by that officer while engaged in
( 173 )

With reference to the disposal of the cases of prisoners (a),
the directions of the Governor were, that care should
be taken to prepare and consider the evidence in each case,
and to dismiss all against whom “serious crimes,” or an active
participation in the rebellion, could not be substantiated.
But, whether or not there was sufficient evidence to war-
rant their being put upon their trial before court-martial,
and whether courts-martial should be convened—which
could only be made under the supreme military authority—
were matters for the military Commanders to determine.

How, entirely the military Commanders assumed the re-
sponsibility of putting prisoners on their trial, and how
carefully and accurately the General in command considered
the question of the jurisdiction of the courts-martial, with
reference especially to the offences of which they could take
cognizance, was shown by this: that he drew, with the
assent of the Commander-in-Chief and the Governor, a dis-
tinction between the offence of merely speaking seditious
language prior to the rebellion, and the offence of compli-
city in the rebellion, which he rightly deemed to be a con-
tinuing offence, having a continuing effect and operation ;
and, therefore, involving a continuing liability to martial
law ; and though they did not, be it observed, deny the

the field ; their offence, evidence, and every particular connected with each
case. When furnished with the necessary documents I will give instruc-
tions for the suggestion conveyed. in your Excellency’s communication to
be carried into effect.” *

(a) “Governor Eyre to Major-General O’Connor.—October 30, 1865.—
I would beg to suggest that Colonel Hobbs should be requested to furnish
all the evidence he can, either written or oral, against each and all of the
prisoners sent in under his authority ; and in the event, after such a refer-
ence, of no sufficient evidence being procurable, to try them at Up Park
Camp, I would recommend they should be sent to Morant Bay for identi-
fication. If on arrival there, no evidence of serious crime was obtainable,
they would, as a matter of course, be released ; and it would be better, if
this has to be done eventually, that the release should take place at Morant
Bay, and not at Kingston. You will be good enough, therefore, to take
care that all such prisoners from Up Park Camp as, upon the examination
aforesaid, you consider ought to be sent to Morant Bay for trial, be for-
warded to Port Royal as early as practicable, and that the inspector
( 174 )

power, they did not see the necessity or expediency of
exercising it in the former case (a).

This view was assented to (b) by the Governor, expressly
upon the assumption that there was no evidence to convict

of police be sent down to select those among the prisoners who,
you consider, should also go, The evidence available should, of.
course, in each case accompany the prisoner. Those prisoners sent in
by Colonel Hobbs, or his party, should not be sent on until after Colonel
Hobbs has reported the grounds of their capture, and the evidence
he is able to produce. P.S.—If any of the prisoners sent in by Colonel
Hobbs, or the party of the 2nd battalion 6th Regiment, were taken in arms
or with stolen property in their possession, the parties who captured them
should appear before the Courts to give evidence against them. It is only
the captors who can declare the grounds upon which the captures were
made.”

(a) ‘‘Brigadier-General Nelson to Major-General O’Connor.—Head-Quar-
ters, Morant Bay, November 4, 1865.—Having deemed it my duty to refer
a case of one of the prisoners sent up for trial, in order that I might be in-
formed on certain points connected therewith, so that the decision on such
case might be my guide as to the disposal of the cases of the prisoners, and
having just had the honour to receive your opinion on the several points
submitted, I have arrived at the decision that on my own responsibility I
do not consider myself justified in arraigning these prisoners before a court-
martial. My reason for thus doing so is—these prisoners all uttered the
sentiments which are said to be seditious, prior to the rebellion ; and though
I may have the power and authority under martial law (a power to myself
very doubtful), yet it is a power I do not feel myself justified in exercising,
and which Ishall not exert unless I receive positive ordersso todo. The
prisoners shall be kept under surveillance till your instructions respecting
their disposal be received.”—“TI entirely coincide in the opinion of Briga-
dier-General Nelson. We may have the authority and power, but would
not be justified to try the prisoners by a military court-martial. (Signed)
L. Smythe O’Connor. Head-Quarters House, November 5, 1865.”

(b) “ Governor Eyre to Major-General O’Connor.—King’s House, Novem-
ber 6, 1865.—I assume that in coming to this decision, Brigadier Nelson
has satisfied himself in each case that there is no evidence directly connect-
ing the prisoners with the immediate outbreak in St. Thomas in the East,
and in this view of the case I consider Brigadier-General Nelson has exer-
cised a wise and just discrimination in coming to the determination he has
done.” This must have meant the rebellion, not the particular outbreak, for
that was prior to martiallaw. What the Governor meant was, what the
General had expressed in a communication to the magistrate, viz., that
there was no complicity in the rebellion. It was only by connection with
the continuing rebellion that complicity in the outbreak, which was before
martial law, would differ from seditious language prior to martial law, not
connected with the rebellion.
¢ 05)

the prisoners, whose cases were in question, with the out-
break of rebellion, the case of seditious publication, not
connected with the rebellion, being carefully distinguished
from that of seditious acts connected with the causing of
the rebellion, and amounting to complicity with it.

It was at this point in the case that the prisoner,
supposed to be the real author of the rebellion, was
ordered by the Governor to be arrested out of the district
in which martial law was declared, and to be taken to the
district (a), with a view to his trial there.

And, as this case was made one of the main grounds of
the issuing of the Royal Commission of Enquiry, and is of
great importance, as illustrating every point which can
arise on a trial by court-martial under martial law, it
deserves an attentive consideration, with careful reference
to the respective parts taken by the various persons con-
cerned in the matter, whether as to the arrest of the pri-
soner, the putting him on his trial, or his trial and convic-
tion, and subsequent execution.

(a) It is of especial importance, in considering this case, and any other
case of trial by martial law, to bear closely and carefully in mind the par-
ticular acts for which the various parties concerned, and for which they
may be respectively responsible. The Governor, whose order was the
direct cause of the arrest, imprisonment, and removal to the proclaimed
district, would not be liable for anything else than that, and would only be
liable legally for it, if illegal. The military commanders, it will be found,
assumed the whole responsibility of putting the prisoner upon his trial,
they alone having authority to convene a court-martial for the purpose,
they asserting that sole authority by declining, in cases in which they con-
sidered that a court-martial would not have jurisdiction, to allow the pri-
soners to be put upon their trial. They, again, assuming the trial to be
lawful, would not be responsible for the verdict nor its confirmation, unless,
at all events, it was manifest that there was no evidence on which a court-
martial under martial law could possibly act. The court-martial, again,
would not be liable for their discharge of a judicial or military duty thus
imposed upon them. It is the more necessary to direct attention to this
distinction, because there was a disposition to make the Governor respon-
sible for the execution, which, it is conceived, he could not possibly be,
unless there was either an utter want of jurisdiction, or a conspiracy, by
false charges and colourable trial, to effect a murder.
( 176 )

The Governor (a), in a despatch which he wrote imme-
diately afterwards to the Secretary of State, set forth the
grounds and reasons on which he had ordered the arrest,
and avowed his responsibility for it,—that is, for the act of
arrest, and the removal of the prisoner in custody into the
proclaimed district, upon the charge of having caused or
incited to the rebellion there.

For that act (6), and that act alone, the Governor would

(a) “ Despatch of Governor Eyre, 20th October:—There was one very
important point to be decided upon. Throughout my tour I found every-
where the most unmistakeable evidence that Mr. George William Gordon,
a coloured member of the House of Assembly, had not only been mixed up
in the matter, but was himself, through his own misrepresentations and sedi-
tious language, addressed to the ignorant black people, the chief cause and
origin of the whole rebellion. Mr. Gordon was now in Kingston, and it
became necessary to decide what action should be taken with regard to
him. Having obtained a deposition on oath that certain seditious printed
notices had been sent through the post-office, directed in his handwriting,
to the parties who have been leaders in the rebellion, I at once called upon
the Custos to issue a warrant, and capture him. For some time he managed
to evade capture; but, finding that sooner or later it was inevitable,
he proceeded to the house of General O’Connor, and there gave himself up.
Tat once had him placed on board the Wolverine for safe custody and con-
veyance to Morant Bay. Great difference of opinion prevailed in Kingston
as to the policy of taking Mr. Gordon, Nearly all coincided in believing
him to be the occasion of the rebellion, and that he ought to be taken; but
many of the inhabitants were under considerable apprehension that his
capture might lead to an immediate outbreak in Kingston itself. I did
not share in this feeling. Moreover, considering it right in the abstract,
and desirable as a matter of policy that, whilst the poor black men who
had been misled were undergoing condign punishment, the chief instigator
of all the evil should not go unpunished, I at once took upon myself the
responsibility of his capture.”

(®) There is a material, a vital, distinction, between legality of arrest, or
of custody, and legality of trial. A man may be illegally arrested, or even
in illegal custody, whose tial and capital conviction may be perfectly legal.
Put the case of a man who is illegally arrested in one county, and taken
into another, where he is kept in illegal custody, but tried fora murder
there committed, and convicted. This trial would be perfectly legal,
although his arrest or custody was illegal. (Vide ante, p. 103). So, in
Gordon’s case, even although the act of the Governor in arresting him, and
sending him to the proclaimed district, was illegal, yet the trial was per-
fectly legal, the charges being of offences committed within that district,
where, alone, he could be tried upon such charges. And as—the verdict
L.L7F 3)

be responsible, not for the trial, still less for the result of
the trial, least of all for the execution of the sentence, for
the trial took place under, and was ordered hy, military
command, and the verdict was the act of the court, and the
execution of the sentence an act under military authority,
which it was only competent to the Governor to prevent, if
he saw sufficient ground for so doing. The arrest, and the
arrest alone, was that part for which he was responsible.
The trial was an act of the supreme military authority, as
it took place under martial law.

Although, as the Governor would only be responsible for
the arrest ; and the illegality of the arrest, even supposing
it illegal, would not in the least affect the legality of the
trial, and the putting him upon trial (a) was the act of the
Commander of the Forces; yet, on the other hand, the
arrest would be equally lawful, supposing the prisoner
triable at all in the district to which he was removed,
whether by martial law or at common law, as he must
have been triable there, either at common law or by mar-
tial law, if he was party to an offence committed there.

It is conceived that, even assuming that the prisoner
was not subject to trial by court-martial in the pro-
claimed district, the Governor could not possibly be liable

being the act of the court—it must be assumed, as regards the Governor, to
have been right, he is not responsible for the result.

(a) The putting him upon his trial would not be, and it is plain was not,
the necessary consequence of his arrest and imprisonment within the dis-
trict under martial law. The arrest was equivalent to the act of a Secre-
tary of State in issuing his warrant to apprehend a person on a charge of
treason or sedition. (Vide ante, p. 33.) That has nothing to do with
trial ; the evidence may be found not sufficient, and the person may be
released or detained, as the case may be. But under martial law, the dis-
trict being under military command, the act of putting a person upon his
trial would be the act of the supreme military authority, for a court-
martial would only assemble under that authority. The Governor acted
only as the executive authority in making an arrest,—he had nothing to do
with his trial. Hence, as a matter of fact, it was the Commander-in-Chief
to whom information was furnished as to the prisoner's guilt, and it was
the Commander of the Forces in the field who put him on his trial.

N
(178 )

for his arrest and transmission to that place, for several
reasons ; first, because, at all events, he was legally liable
to be tried there, whether by martial law or not, if he had
incited the people there, or had conspired to incite them to
rebellion, which would be an offence committed there (a) ;
secondly, because, whether he was triable by court-martial
or not, it would be for the military Commanders to deter-
mine; and lastly, because, whether or not he had com-
mitted an offence charged to have been committed within
the district, it would be for the court to determine. So
that, as the Governor could not be liable for the arrest,
unless it was illegal, so it would not be illegal if there
was reason to believe the prisoner had committed an
offence there, and if he might in law have committed an
offence there, although not personally there.

It was enough, to warrant the arrest, that there were facts
upon which it might be supposed that the prisoner might be
liable and triable in the place to which he was sent, as if it
were supposed that he had been a party to a conspiracy (0),

(a) Because, though, for the mere publication of aseditious libel, the man
may be indicted where he published the libel, and there may, in strict law,
be a publication by merely sending a paper through the post or otherwise,
for publication elsewhere, he may equally be indicted in the place where he
sends it to be published, by putting it forth to the people. (Zhe King v.
Burdett, 4B. & Ald. 172.) But in case of sedition, or inciting to sedition,
or conspiring to incite to sedition, the indictment must be where the sedi-
tion was raised, or where the people were incited ; and in the case of conspi-
racy or treason, it may be where any of the acts are done, either by the pri-
soner, or any of his conspirators. (Jdéd.) Even according to the strictest
rule of common law as to felony (which, indeed, was not quite settled, it
was so technical and difficult of application), it was laid down that a man
who had incited to a murder in another county, might be indicted where
the murder was committed. (Zbid, p. 174.) And the rule, strict and tech-
nical as it was, did not apply to conspiracy; and thus, a man who entered
into a conspiracy in one county to indict a man falsely, and followed up by an
indictment in another county, might be indicted in either county. (Ibid,
p. 176.) And then, in cases of conspiracy, there is this peculiarity, that, as
the prisoner may be liable for the acts of any of his co-conspirators, in fur-
therance of the unlawful object, so he may be triable in any place where
any such act has been committed. (Jdid, p. 178.)

(6) There is no reason why the crime of conspiracy may not be tried
C19 >

with other parties, active ringleaders in the rebellion, to in-
cite the people in the disturbed district to rebel, then he
would be liable, if a party to such conspiracy, where any
of the others used such incitements, or did any acts in
furtherance of their common design.

Nothing, however, is more clear (a), than that, if the

where one distinct overt act of conspiracy is committed, as well as the crime
of treason. Where no proof of actual conspiracy, embracing all the several
conspirators, was attempted to be given in the county where the trial took
place, and where the individual actings of some of the conspirators were
wholly confined to other counties, still, the conspiracy as against all having
been proved, from the community of criminal purpose, and by their joint
co-operation in forwarding the objects of it in different counties and places,
the locality required for the purpose of trial was holden to be satisfied by
even acts done by some of them, in prosecution of the conspiracy, in the
county where the trial was held. The instances of treason are well known,
and they go this length, that a witness to an overt act in the county, where
the indictment is preferred, is sufficient.” (King v. Burdett, 4 B. & Ald. 178.)
In the same case, the rule itself, requiring that in felony the whole of the
facts making the felony must have been proved in the county where the
case was tried, was deemed a technical rule of the common law, which had
caused failures of justice; and if it applied to the case in question at com-
mon law, it would not be applicable to trial by court-martial, but it would
not be applicable to the case in question, as it was, it will be seen, dealt with
as one of conspiracy.

(a) The general rule of law is, that crime, as to its trial, is local, and
hence in a well-known case, Heath, J., referred to a case where a criminal
was arrested in England, for a capital felony, created by an Irish Act of
Parliament, and upon such arrest was carried away to Ireland, tried, and
executed for the offence. He asked whether the prisoner in that case, if he
had been acquitted, could have maintained an action against those who
arrested him, supposing he were taken on probable grounds (Mure v. Kay,
4 Taunt. rep. 37). And it was there laid down, that if a person has com-
mitted a felony here, he may be arrested in Scotland or Ireland on probable
grounds of suspicion, at all events, if the law of those countries warrants
such an arrest. Hence it was necessary, by a special statute, to provide for
the trial here of offences by Governors committed abroad (vide ante, p. 52),
otherwise they must have been tried in the colony abroad. The first case
cited was very strong, for the offence (stealing an heiress), was not capital
by the law of this country, where the arrest was made, so that the parallel
is close to the present case, where martial law, a law no doubt different in
its penalties, was in force in the district where the offender was taken. But
the general rule is that the lex loct governs the quality of the criminal act
alleged.

N2
( 180 )

prisoner had either caused seditious papers to be published
in the proclaimed district, or had incited to an insurrection
there, or was privy to any conspiracy, rebellious or treason-
able, for causing a rebellion or levying war there, he was
guilty there, and could only be prosecuted and tried there,
and therefore, if arrested at all, must necessarily be con-
veyed and imprisoned there.

And, assuming Gordon to have been party to a con-
spiracy (a), for any unlawful object, even if only to raise a
rebellion, or even a mere seditious assembly, whether or
not he ‘was privy to the particular insurrection or the par-
ticular outrages committed ; then he would be liable to be
tried in any district in which it could be proved that any
act was done by any one of the conspirators, by himself or
any of the others, in furtherance of the common design.

That for the offence of seditious publication of papers (0),
the prisoner was liable to be tried where the publication was
caused, and that every publication caused by him was a
distinct offence, are propositions of criminal law familiar
to every lawyer. And that, assuming he had been guilty
of conspiring to incite a rebellion (c), or seditious as-
sembly, he would be liable to be tried in the district
where the rebellious rising, or the seditious assembly, was

(a) In indictments for conspiracies, the venue may be laid in any county
in which it can be proved that an act was done by any one of the conspi-
rators in furtherance of the common design (Re Brisac, 4 East, 164, Ross’s
Crim. Ev. 27). Soin indictments for treason, the venue may be laid in
any county in which a sufficient overt act can be proved (Ibid Re Lord
Preston, 4 St. Trials, 410). So in an indictment for sending seditious
paper libels, the venue may be laid in the county where they are received
or circulated. Jbid.

(6) (Vide Russell on Crimes, vol. i, Book ii. c. 24. Ibid.) There the
case is cited of a person in Ireland, causing a publication in London, by
sending papers there to be printed, and it was held that he could be tried
in London, since he had sent the papers to London to be published there
(R. v. Johnson, 7 East, 65). So it was held in the case of Sir Francis Bur-
dett, that he could be indicted in the county where he had sent the se-
ditious paper to be published. (The King v. Burdett, 4 B. & Ald.)

(c) As in the case of Hunt, in B. & Ald. 501, Vide wnte, 37, 39.
Cael: -4

to take place, or where the attempts or incitements were
made, is equally clear.

Whether or not the Governor could order the arrest of
the person in question, would depend upon whether, on the
facts within his knowledge (a), or information, be really
believed the person to have caused or incited the rebellion,
or to have been in complicity with those who had
incited to it; whether or not he had advised or intended
the particular insurrection, or the particular outrages which
had arisen out of it.

Nor would it be at all necessary that there should be
positive or express proof of any conspiracy (0), for that might
be inferred from circumstances, nor that there should be
express proof of an actual intent to incite to rebellion, if
the means used were such as were calculated (c) to incite

(a) There was the seditious proclamation on the state of the island ; there
was the address in which he had told the blacks “to do as they did at
Hayti.” There had been also various other similar meetings, held by this
man, with the aid of Bogle, M‘Laren, and the other ringleaders in the
rebellion, whose names were to the manifesto issued at the outbreak of the
insurrection (vide ante, p. 117). There wasa deposition (vide ante, p. 176).

(8) Vide ante, p. 35.

(c) The general rule of law is, that a person must be taken to have
intended to do that which his act is calculated to effect. The man who
publishes slanderous matter, in its nature calculated to defame and vilify
another, must be presumed to have intended to do that which the publica-
tion is calculated to bring about, unless he can show the contrary, and it is
for him to show the contrary.” (Abbott, C.J., 2. v. Harvey, 2 Barnwall
and Cresswell’s Rep. 258.) ‘‘If I utter defamatory language of a particular
person, the presumption is that I mean to do him a mischief. (Bayley, J.
ibid 263.) And so as to a charge of a publication not only libellous and
injurious to the individual to whom it relates, but mischievous to the public,
as calculated to excite great alarm in the minds of the people. (Holroyd, J.,
ibid 265.) If a thing is in itself mischievous to the public, and is wrongfully
done, that is an indictable offence. ([bid.) “ When a publication, having
an injurious tendency is proved, it is intended to have been done witha
malicious intention, because the principle of law is, that a party must be
always taken to intend those things, and those effects, which naturally grow
out of the act done. (Jdid., p. 266.) And if a publication is calculated to
produce irritation and disorder throughout the country, the publishers must
be taken to have intended to produce those consequences which it was
legally calculated to produce.” (Best, J. Ibid., 268.)
( 182 )

to it. Nor would it be necessary that the Governor should
have sufficient proof to convict, for that would be for the
Court to consider; it would be enough for the arrest that
there was some suspicion of such complicity in the rebellion
as to make the prisoner liable for it.

The question, as to the legality or even propriety of the
arrest and removal, would be, even at common law, and in
ordinary times, whether a magistrate, upon a formal deposi-
tion of these facts, or some of them, might not honestly
have issued a warrant for the arrest and removal to the
district, for the purpose of further examination or trial, on
a charge either of being accessory to murder there, or of
inciting to rebellion there. And the omission to take
formal depositions (a) would, even at common law, if there
were an honest belief in the facts, be a mere irregu-
larity, which might affect the legality of the arrest, but
could not possibly affect the legality of the trial, and not
necessarily the propriety of the arrest, if the facts, so far as
material for arrest, were notorious.

All, therefore, that the Governor had to consider, in
ordering the arrest and removal of the prisoner to the pro-
claimed district, or that would have to be considered, in
judging of his act, would be, whether he could honestly
suppose it probable (6) that the prisoner had committed

(2) A Secretary of State, or Governor, may arrest on charges of sedition
(Entick v. Carrington, 2 Wils. Rep. 278), and though, if a magistrate act
without information, and maliciously, an action would be at common law
(Morgan v. Hughes, 2 T. R.), it would only be for the arrest and false
imprisonment, and could have no possible bearing upon a subsequent trial
of the party arrested, which would depend on the locality of the crime, not
the legality of the arrest, (Heath, J., Mure v. Kay, 4 Taunt. Rep. 35.)
And as to information, there can be no doubt that all Kingston was cla-
morous for the arrest, vide post, And there was a deposition (vide p. 176).

(5) That he might honestly enough suppose so, and could searcely help
So supposing, will be manifest from the statement of a few of the notorious
facts, that Gordon had been for months engaged in a system of seditious
agitation in the district at meetings held by tickets ; thatin those meetings
he had been associated with the active leaders of the insurrection 3 that
at the time of his arrest, a week after the insurrection, they were most of
them still at large, and actively engaged in trying to keep up the revolt ;
( 183 )

any offence in that district ; as he well might have done,
either by sending or causing incitements there to the people
to revolt, or by conspiring with others to do so, although
never personally there. For if so, then the prisoner, as he
was triable there (whether at common law or by martial
law), was removable there, and this would justify the
arrest.

The only question would be whether the Governor was
justified in issuing his warrant for the arrest and removal of
the prisoner upon a primd facie case of suspicion of com-
plicity in a crime committed in the district to which he was
removed. That act, the arrest, was all he was legally
responsible for in the case ; for if the man were once arrested,
he could only be sent for trial to the district where, if at
all, his crime had been committed. And if he were guilty
of complicity in an armed insurrection there, or a conspiracy
to incite to it, it was there, and there only, that he could
be tried; and it was there he must be sent for trial (a).

The question, whether the man had committed an offence
within the cognizance of martial law, would be for the

that, up to the time of his arrest, he had never denounced the rebellion,
nor used his influence to surpress it; that the massacre was perpetrated in
the presence of the direction of these men, and upon his own political
opponents; that, when he was arrested, his portmanteau was found filled
with these meeting tickets; and that similar tickets were found, with arms
and plunder, in the houses of the rebels ; that he had never spoken of the
massacre as criminal, but rather with exultation ; that some of the rebels,
when brought to execution, ascribed their fall to him ; and that he was
everywhere and universally believed to have originated the rebellion.
And there was a deposition. (Vide ante, p. 176.)

(a) (Vide ante,"p.175.) As to the offence of sedition being committed
where the seditious papers are circulated with the concurrence of the party
accused, and as to the offence of conspiracy to incite rebellion being commit-
ted where the overt acts are committed, i.e. where the rising is to take place,
see “Russell on Crimes.” The publication of the proclamation, which, to
say the least, might honestly be deemed seditious, was a notorious fact,
of which it would have been idle, under such circumstances, to wait for
a formal deposition, and the circulation of it had been notoriously kept
up in the district. But there was a deposition. (Vide ante, p. 176.)
( 184 )

military Commander, and, assuming as the Governor
would have a right to assume, after the proceedings had
been initiated and confirmed by the military Commander,
that the trial was lawful, and the finding of the court was
justified by the evidence, it of course would be idle to dis-
cuss the legality of the arrest (a). And as to its propriety,
that would depend upon the judgment formed as to its ne-
cessity or expediency, with a view to the suppression of the
rebellion, that is, a judgment formed at the time and upon
all the circumstances.

Supposing the Governor were responsible, not only for
the arrest and removal of the prisoner into the proclaimed
district, but also for his being put upon his trial there (0),
the question, whether it was proper to put him on his trial
there (assuming that a court-martial would have jurisdic-
tion, which it would be for the military Commander to
judge), would be one of military expediency, depending

(a) If the prisoner could not be tried there by martial law, he could not
be tried, then, at all; for he could not be tried elsewhere for the offences
with which he was charged, and could not be tried there, except under
martial law, for other law was inabeyance. So that the question of propriety
or necessity turned upon whether it was desirable that the man believed
to be the real author of the rebellion, should be tried then at all, or de-
layed till the danger was over; the rebellion being still in force, and the
active leaders at large. He could not be tried anywhere else than where
the alleged offence was committed. And if he committed the offence of se-
dition or insurrection, beyond all doubt it was in the district to which he
was sent. Whether he should there be tried under martial law, would
depend upon whether he should be tried at all, that is, then.

(b) Governor Eyre’s despatch, 22nd October. He stated the circum-
stances briefly thus, “‘On the morning of the 20th October, having put on
shore the prisoners, including G. W. Gordon, I again proceeded to King-
ston, At Kingston all was quiet, though apprehensions of an outbreak is
still entertained, and all practicable precautions against it taken. Many
political characters, suspected of being implicated in the rebellion, have,
under the authority of the Executive Committee and the civil authorities,
been apprehended. So also have various Haytien refugees, suspected of
being mixed up with the leaders of the insurrection. In the country dis-
tricts rumours of disaffection exist, and threatening letters are received, but
no outbreak has occurred.” Gordon had been arrested on the 18th. The
ringleaders were still at large (vide ante).
( 185 )

upon the circumstances of the time, and whether a speedy
and exemplary punishment of the prisoner was necessary.

In this point of view, it was important to consider (a),
that though actual insurrection had been checked, the
negro population was believed to be in a state of rebellion ;
that the active leaders were still at large and as deter-
‘mined as ever ; that the prisoner had been closely associated
with them, had never said a word to denounce or discourage
it, and that he was believed to be the real head and origin
of the rebellion.

The Governor, however, was responsible only for the
arrest and removal. The act of putting the prisoner upon
his trial was the act of the military Commander. He, again,
could only be responsible for putting the prisoner upon his
trial, and would only be responsible for that, if the trial
were wholly ilegal, through entire want of jurisdiction,
whether by reason of the court not being duly constituted,
or the prisoner, or the charge, not within their cognizance.
Both were questions for him, as the military Commander, to
determine, and the latter was distinctly raised (0) on behalf
of the prisoner, before he was put on his trial.

(a) It is notorious that no rebellion is ever thoroughly suppressed, until
the ringleaders are caught and punished, and above all the real ringleaders,
the man who was its heud for itis probably in him, more than in any one
else, that the rebels, especially if ignorant and credulous, rely, and it is not
until he is executed that they finally lose all hope of success. Asa matter
of fact, in this case, the man believed to be the real head, Gordon, was
executed on the 23rd October, the active ringleaders on the 24th October,
and up to that time there were acts of armed rebellion, and of actual out-
rage, which not until then began to abate. The troops were not reinforced
until the end of the month, the 29th, and the very next day an amnesty
were declared, which, however, could of course be only retrospective, and
there was still a state of alarm and apprehension, so that it was not until
the 14th Nov. deemed safe to put a stop to martial law.

(s) An attorney, on behalf of Gordon, wrote him a letter, which he
handed to the General, desiring him to let it be given to the prisoner, and
in which he suggested, that whatever his offences might have been, they
were committed before the proclamation of martial law. “I advise you to
plead :—1. That, on that account you are amenable only to the ordinary
civil and criminal courts of the country ; and, asa further plea, 2. That
( 186 )

With reference to the question whether the prisoner
could lawfully be tried under martial law, the question
would be, not whether, under martial law, a prisoner can be
tried for an offence committed in connection with the
rebellion, and in the proclaimed district, though before the
declaration of martial law (a); but whether a person who
has incited to, caused, or joined in, the rebellion, can be tried

_wander martial law, a question which almost seems to answer
itself in the affirmative, for, in such a case, the offence was the
raising the state of war which martial law only declares,
and to which it applies; and, further, the offence is con-
tinued by the existence of the rebellion, so that it is as
much committed after as before the declaration of martial
law, and so in either view is committed wnder martial

law (6).

that only is crime which is prompted by a criminal intention, and that you,
having had no such intention, are not criminally liable for the conse-
quences, however disastrous these unhappily may have been.” The Bri-
gadier-General declined to deliver this to the prisoner, and as to the first
point, it being one which went to the jurisdiction of the court, it was for
him to determine, and it was conceived he determined it rightly by over-
ruling it. As to the other point, it was a point to be considered by him in
framing the charge, as to which it was, itis conceived, a false point, bad in
law, for in sedition, an actual criminal intent, even at common law, is not
material (vide ante), and under martial law the criminal intent is less ma-
terial than at common law, because the scope of martial law is not so much
guilt as mischief, and the actual cause of it, and men must be taken to
have meant what they havedone. And if the prisoner had published se-
ditious papers or entered into a rebellious conspiracy, it did not matter
what his intent was, and whether it was to commit the massacre or not.

(a) That question has already been discussed (vide ante, p. 104), whether
or not, under martial law, a person may be tried for an offence committed
before martial law was declared, which, it has been argued, depends upon
what is the real scope of martial law, and whether it is not the prevention
of a danger, and the suppression of a rebellion. But this assumes that the
offence has been committed and completed before martial law, and still
leaves open the question whether the offence has been so completed. Now
it is of the nature of some crimes, especially such as savour of conspiracy,
that they may be committed in places at a distance from the person who is
in law liable for them, and of course, therefore, after the time when any
personal acts of his own may have been committed.

(6) That the state of war, as against the aggressor, begins from the
( 187 )

It is to be borne in mind (a) that by martial law, in time
of war or rebellion, all persons are liable to be called as sol-
diers, and that by martial law, in time of war or rebellion,
as is by statute ; whether as to soldiers or other persons in
time of peace, the offence of inciting to mutiny or rebellion
is capital, and that it is committed where the incitements
take effect, so that it would require a statute to authorize
its trial elsewhere.

Assuming, then, either that, under martial law, seditious
publications or rebellious incitements or conspiracies, which
have led to the existing rebellion, are cognizable under mar-
tial law, declared for its suppression (b), or that, by reason

aggression, not from the proclamation. (Vide ante, p. 17.) And that is
especially true of rebellion, which is war by the subject against the sove-
reign, and is traitorous, (Vide ante, p. 18.)

(a) Simmons on Court-Martial. The law on the subject, on its civil
side, is contained in Russell on Crimes, vol. 1, ¢. 7, “Of seducing soldiers
to mutiny.” Every Mutiny Act since the Revolution has enacted that, as
it is requisite that solders who shall mutiny, or stir up sedition, be liable
to more exemplary and speedy punishment than the usual form of the law
will allow ; that, therefore, if any soldier shall, during the continuance of
the act (i.e., in time of peace or war), commit any of these offences, he shall
suffer death, or such other punishment as shall be awarded by a court-mar-
tial. And statutes 37 Geo, III. c. 70, and 57 Geo. III. c. 7, enact, that any
person who shall maliciously and advisedly endeavour to seduce any person
serving in his Majesty’s forces from his duty and allegiance, or to incite or
stir up such person to commit any act of mutiny, or to make, or endeavour
to make any mutinous assembly, or commit any traitorous or mutinoug
practice whatever, ¢.¢., in peace or war, he shall, on being legally convicted,
suffer death. That in time of mutiny soldiers are ipso facto subject
to martial law (vide ante, p. 74, Wall v. Macnamara). And that the
effect of martial law in time of rebellion is to render all persons subject to
those severe penalties which, in time of peace, by the Mutiny Act, soldiers
are subject to; and, by other statutes, all persons, is manifest from the very
nature and definition of martial law, as already shown, which means, in
fact, nothing more nor less than the extension of military law to civilians.
Gordon, therefore, was liable to the capital penalty, if he had endeavoured
to incite to rebellion in the declared district,

(6) Which would depend upon the object of martial Jaw, and whether it
is not the suppression of the rebellion; and also on whether its operation
does not depend rather upon the existence of the state of war or rebellion,
than upon its formal declaration or proclamation, as to which, vide ante,
p. 17. Itis to be observed that the original outbreak, on the occasion of
( 188 )

of a rebellious or treasonable conspiracy, the prisoner was
liable for the acts of others within the proclaimed district,
and under martial law, he could clearly be tried, and could
only be tried there, and the question of his complicity in
such a, conspiracy would be the great question to be tried.
If he was a party to it, then he was clearly liable, and no
question as to jurisdiction could arise.

As to the question whether there was sufficient evidence
on which to put the prisoner on his trial, there need be no
express proof of complicity, but such evidence as would
satisfy the court martial («) of complicity in such a conspi-
racy.

Moreover, there might be a charge of conspiring with
others to incite a mere riot, or unlawful or seditious as-
sembly, as well as for a conspiracy to incite to an insur-
rection or rebellion (6), of which express proof would not

the armed attack on the magistrates, and the massacre that ensued, fol-
lowed up by the attempt to continue a system of massacre and plunder,
was the real commencement and declaration of war, or rebellion on the part
of the rebels, against the Crown, and as against them, it was then the state
of rebellion began; and so as against any one, a party to any design to pro-
duce it; and, after all, the declaration of martial law only declared what
already existed. So that it is a fullacy to say that the seditious acts were
before martial law.

(a) The evidence to satisfy them of this, let it be observed, need not be
express evidence of an actual conspiracy. There need be no direct evi-
dence that the prisoner and the others ever met. In the latest cases on the
subject, the juries were told that it does not happen once in a thousand
times, when the offence of conspiracy is tried, that anybody comes forward
to say that he was present when the parties met and conspired together.
It is to be inferred from the conduct of the parties ; and, if several men are
found to be taking steps towards an obvious purpose, and which tend to one
end, it is for the jury to say whether they have not combined and conspired
to carry out that purpose, which their acts and conduct appear so obviously
designed to effect. (Russell on Crimes, last edition book 6, ¢, 2.)

(®) This was held in Hunt’s case already cited. There also (vide ante),
it was held, that resolutions passed at a former meeting shortly before,
though in a distant place, but at which he also presided, and the avowed
object of which was the same as that for which he was indicted, were ad-
missible against him; and further, that the character and demeanour of
bodies of men coming to the mecting, over which he presided, was ad-
( 189 )

‘be necessary, even at common law ; but it might be implied
from various acts and circumstances, and that offence,
which at common law is a mere misdemeanour, is by mar-
tial law capital ; and if it once existed, and still continued,
then his privity (a) to such a conspiracy, before the declara-
tion of martial law, would render him liable, either under
common law or martial law, for complicity in the then ex-
isting rebellion, the result of such incitements,

It is to be observed that a conspiracy for any unlawful
object, even a riotous, seditious assembly, is, even at com-
mon law, an offence, and, by martial law, is capital (0);
further, that no direct evidence of concert or (c) conspiracy
would be necessary ; but it might be inferred, even on a
trial at common law, from the fact, that all the parties were
in communication, and had taken such means and mea-
sures as were likely to conduce to the supposed design,

missible against him, without express proof that he had organized and
arranged them, or directed their organization. Ibid.

(a) Where several persons are proved to have combined together for
the same illegal purpose, any act done by one of the party in pursuance of
the original concerted plan, and with reference to the common object, is,
in contemplation of law, the act of the whole party, and therefore the
proof of such act would be evidence against any of the others, who were
engaged in the same conspiracy (1 Phil. on Ev., Russell on Crimes, vol. ii.
B. 5, c. 2). And though, in general, proof of concert or connection must
be given before evidence is admissible, of the acts or declarations of any
person not in the presence of the prisoner, it is for the court to judge
whether such connection had been sufficiently established ; and when that
has been done, the doctrine applies, that each party is an agent for the
others, and that an act done by one, in furtherance of the unlawful de-
sign, is, in law, the act of all. Jé¢d. And it is not necessary to prove any
direct concert or even any meeting of the conspirators, for the actual fact of
conspiracy may be collected from the collateral circumstances of the case
(BR. v. Murphy, 8 C. & P.297 ; Coleridge, J., R. v. Shelland, 9 C. & P. 277;
Russell on Crimes, vol. ii. B. 5, ¢. 2).

(5) Russell on Crimes, B. 5, c. 2.

(c) The evidence in support of an indictment for conspiracy is generally
circumstantial, and it is not necessary to prove any direct concert, or even
any meeting of the conspirators, as the actual fact of conspiracy may be
collected from the collateral circumstances of the case. Although the com-
mon design is the root of the charge, yet itis not necessary to prove that
( 190 )

The question, whether there was evidence on which any
charge could be framed, which would be cognizable under
martial law, was deemed to be one purely military, and
resting with the military Commanders to determine. The
General in command (a) considered the evidence, with a
view to determine it, and convened the court, and con-
trolled the proceedings.

So, it was the military Commander who framed the
charges (6), on which the prisoner was tried, the two-fold

the defendants came together, and actually agreed in terms to have the
common design, and to procure it by common means, and would carry it
in execution, because in many cases of the most clearly established con-
spiracies, there are no means of proving it. If, therefore, two persons prove
by their acts the same object, often by the same means, one performing
one part, and the other another, so, with aview to the attainment of the
object they were pursuing, the jury are at liberty to draw the conclusions
that they have been engaged in a conspiracy to effect that object. (Per
Coleridge, J., R. v. Murphy, 8 C. & P. 297.) Nor need all the parties be
parties to a knowledge of all the acts or means adopted. And there may
be a conspiracy to publish a seditious libel (did), or to get up a seditious
assembly, or for any object that is unlawful. Zbid. And the acts of the
different. parties may prove the conspiracy (A. v. Frost,9C. & P. 129).
And the conspiracy will be treasonable where it was entered into or carried
out.

(a) His official despatch was as follows : dated “ Morant Bay, 21st Oct.
1865, 8 p.m. Sir,—After six hours’ search into the documents connected
with the case of G. W. Gordon, I found that [ had sufficient evidence to
warrant my directing his trial. I prepared a draft charge and precis of
evidence for the Court. It assembled about 2 p.m. this day, and closed its
proceedings after daylight. The President having transmitted them, I
carefully perused them. The sentence was Death. I considered it my
duty fully to approve and confirm. I enclosed the whole of the proceedings
of the Court for your information, as you may desire to see what evidence
led to the conviction of so great a traitor. I have not furnished any report
of the Court to his Excellency the Governor, because, as his Excellency is
now at Kingston, I apprehend all my report should be made through you,
my immediate commanding officer, I have no copies of any documents
herewith transmitted, and therefore hope hereafter to be allowed to take
them. Hoping, as heretofore, to gainyour approval. (Signed) A. A. Nel-
son, Brigadier-General, Commanding the Field Forces. To Major-General
O‘Connor, C. B.”

(6) Which of course would be framed to meet what the General deemed
to be the effect of the evidence to be adduced, and which he had considered,
and had been desired by the Governor to consider, with a view to determine
( 191 )

charge of treason and sedition, and the charge of complicity
with the rebels, or, in other words, conspiring with them to
incite the blacks to rebellion. The first was, in substance,
a charge of actually engaging in or raising the rebellion,
—the other charge of conspiring with the ringleaders, both
charges equally capital, under martial law.

The charges (a) against the prisoner, therefore, were, in
substance, rebellion, and conspiracy to incite to rebellion,
that is, rebellion generally, not necessarily the particular
insurrection. Nor would it necessarily involve an actual
intent to raise such an insurrection as had burst forth.

So far, as to the act of the General in putting the pri-
soner upon his trial at all on these charges. Next, as to
the constitution of the court-martial, which was equally the

whether it was sufficient, 2. ¢., to sustain any charge cognizable by a court-
martial under martial law. And the General's attention had been specifi-
cally called to the points raised on behalf of the prisoner (wide ante), that
his acts were prior to martial law, and that he had not intended to produce
the particular results which had ensued, that is, the massacre. None of
the charges point to that as the charge. The first, treason and sedition, or
treasonable sedition, meant, no doubt, a raising of rebellion, which would
be levying war, though probably being out of the realm, not strictly an act
of treason. The other charge was complicity, not in the massacre, but
with the ringleaders, who personally directed it, that is, conspiring with
them to raise rebellion. There would be considerable difficulty, perhaps, in
sustaining a charge of treason, for, at common law, conspiring to depose or
dethrone the Sovereign would be treason, beceuse tending to his death,
The merely levying war, unless directed to that object, is only an act of
treason when within the realm, and, of course, no levying war, in such a
remote dependency, could be deemed to have any such object ; and as to
statutable treasons, at least, so far as regards Imperial statutes, they all
apply only to acts within the realm, especially the latest (57 Geo. III. ¢. 6,
note 3, Hallam’s Const. Hist. p. 154). But although the levying war
against the Crown might not be treason, it would not the less be war, which
would justify martial law, and be a capital crime (vide ante, p. 2).

(a) It must be borne in mind that, by martial law, either or any of the
offences charged would be capital, for sedition, though only a misdemeanor
at common law, is one of the most formidable of offences of which martial
law takes cognizance, and is capital. So of insurrection, whether or not
combined with actual murder, and whether or not the offender is guilty of
designing the actual murders committed.
( 192 )

act of the supreme military authority (a). It is to be
observed, that it was not necessary that the strict rules of
ordinary military law should be adhered to (6), which
require a general court-martial in a case of life and death,
and it might be what it was, a drumhead court-martial.

It is important to bear in mind (c), in considering the
trial, that it took place before a court-martial, composed
of officers, who had themselves been engaged for a
week in putting down the rebellion, and who, there-
fore, had personal knowledge of it, so that it would have
been idle to require formal proof of it. And they also
knew that the active ringleaders were political associates of
the prisoner, who did not deny it, and could not, in the face
of express proof of it, as well as of universal knowledge
of it.

As it would be idle to suppose that they could discard
from their mind the general knowledge they possessed of

(a) All this was entirely a matter of military usage, to be determined by
military authorities, and the Governor had, and could have, nothing to do
with it.

(6) It has been somewhere said by lawyers, that drumhead courts-martial
cannot take cognizance of cases of life and death, but this has never been
laid down by any military authority, and is contrary to notorious military
usage in time of war and rebellion, when sufficient officers cannot be
obtained to constitute a general court-martial. Ordinarily, no doubt, there
must be a general court-martial in a case of life and death, but that is
according to regular military law in time of peace, and has nothing to do
with martial law. This distinction, which underlies the whole question,
was lost sight of in the Ceylon case, and evidently formed the main ground,
or one of the main grounds, on which the legality of the capital executions
that took place under martial law, by sentence of court-martial, was
erroneously impugned. (Vide ante, p.106.) It was found to be a mistake.

(c) It is to be observed that the members of a court-martial are in the
position of jurors, as well as of judges; that is, they are judges of the mat-
ters of fact, and of the effect and weight of evidence, and that they have no
knowledge of the rules of legal evidence, and of course are not called upon,
and cannot possibly be expected, to observe them. Indeed, these rules,
even if they bound courts-martial or military courts at all, only do so, so
far as they are conducive to substantial justice (see the author’s notes to the
case of Dickson v. Wilton, 3 Fost. & Fin. rep. 682), and courts-martial in
time of war, or under martial law, are only bound by the rules of natural
justice. (Vide ante, p. 67, in notis.)
( 193 )

public, undoubted, and notorious facts, it would not be con-
trary to, but consistent with, natural sense and justice, that
they should use that knowledge of such general public
facts to illustrate, and give force and meaning to, the
express evidence in the case, which otherwise might seem to
have no significance (a). And among these facts, surely, was
the existence of the rebellion, the perpetration of the mas-
sacre, the presence of certain persons at it as leaders, and
the notorious fact that these men were still at large, and
had been engaged in a system of meetings throughout the
island ; as to the general character of which meetings, and
the prisoner’s connection therewith, express proof was
given.

(a) Originally, the juries judged entirely of their own personal knowledge,
and hence always came from the neighbourhood, de vicincto, and though
for ages it has been the practice to require express evidence of particular
facts, it is by no means quite certain how far they may not draw on their
own knowledge of facts, public and notorious, as a war or rebellion, and the
like, or how far the court may take judicial notice of such public facts. In
The King v. Sutton, 4 M. & S. rep. 536, a case of indictment for sedition,
the royal proclamation was put in evidence, to show that a system of
outrage had existed, which, it was suggested, the libel tended to incite to,
and it was admitted as an act of the State, founded on the existence of the
outrages it recited; and preambles to Acts of Parliament, also reciting
them, were admitted as tending to show the notoriety of their existence. In
the course of the summing up, the Judge alluded to the personal knowledge
of the jury, as illustrating this evidence ; and this was held not improper,
because it formed ‘‘a part of the history of the country that such outrages
had been committed ;” and “it was as if he had said, every one must be aware
of what has passed before their own eyes, and at their own doors; and
though it was added that he did not advise them to rely on it as a source of
information, on which they were to found their verdict, that was said, be
it observed, of a trial at strict law, and merely shows that the practice at
law has altered in that respect. But the fact that, in ancient times, juries
might judge of their own knowledge, shows that it cannot be contrary to
sense or justice that they should do so; and, on the other hand, it would be
contrary to sense, that a court, which is both judge and jury, and is trying a
case summarily, should stand out for formal proof of notorious and public
facts, The courts of law may take cognizance of acts of State, and public
and notorious facts, such asa war. (The King v. De Beranger, 3 M. &S8. rep.
69.) And in Wright v. Fitzgerald, 28 State T., there does not appear to have
been any proof of martial law, which, however, was noticed.

Oo
( 194 )

In considering the evidence (a) upon these charges, it is
necessary to look, first, at the facts notorious, and in the
knowledge of all in the island, of which it would have been
idle, before a court-martial, under martial law, to call for
express evidence or formal proof; and at the position and in-
fluence of the prisoner, and his immense influence over the
black population among whom the rebellion had broken out,
and the fact, that for more than a week after the rebel-
lion, and for nearly a week after the declaration of the
state of rebellion, he had remained aloof from the Govern-
ment, and had not come forward, to denounce the rebellion,
or to assist in its suppression.

In considering the evidence, or rather the finding of the
court-martial thereon, it is to be kept carefully in mind
that, once assume the lawful authority of the court, the
only question to be considered is, whether there was any
evidence (b) that could lead them, in fact, whether rightly
or wrongly, to the belief of the jrisoner’s guilt, on either

(a) Even at common law, a jury may take into consideration matters of
general knowledge ; and though strictly legal proof may be often neces-
sary of known notorious facts, it would be too much to expect that a
court-martial, sitting under martial law in a state of rebellion, would require
formal proof of the rebellion, or the declaration of martial law; or of
facts known and notorious over the whole island. The position and in-
fluence of the prisoner, known to possess unbounded influence over the
black population, was so notorious, that it would have been as ridiculous to
attempt to exclude it from the minds of the members of the court, as it
would have been to exclude the fact that he himself was a man of colour.
And to his not having come forward to assist in suppressing the rebellion,
it was one of those negative facts which it would hardly require direct proof,
especially since it was obvious that the very arrest and trial of the man
was itself the best possible proof of it, for the Government would hardly
have arrested a man actively assisting it. It would be borne in mind,
that the court-martial, especially sitting under martial law, is not bound by
any formal rules, and is only what Bentham calls a court of natural pro-
cedure, bound only by the rules of common sense and natural justice ;
and common sense does not require formal proof of facts universally
known, while natural justice only requires that; means which in common
sense are sufficient shall be used to find out the truth.

(b) The evidence was his seditious proclamation in the district ; his
seditious address, in which he told the blacks to do as they had done in
( 195 )

of the charges against them ; not whether, in the opinion of
others—least of all, lawyers—that evidence was sufficient.
And assuming that the court-martial had lawful autho-
rity (a), which they surely had—unless no court-martial
can have any authority to try prisoners under martial law—
it was for them, if there was any evidence upon the charges

Hayti, z.¢. to massacre the whites ; evidence (strict legal evidence) that he
had said, some time before, to the active leader of the rebellion, that if the
blacks did not get the back land, the whites must die; evidence (not
strictly legal) that he had used similar words on another occasion, and
that he had written a letter to one of the ringleaders, to the effect that
the negroes must be prepared for war, and get the lands; evidence that
he was connected, in a system of seditious agitation, by means of meetings,
with the most active leaders of the rebellion; and that, at the time of
his apprehension, his portmanteau was filled with tickets of the kind
which it was well known had been used in getting up these meetings ;
and such as had been found in the houses of some of the rebels, along with
arms and traces of pillage ;—proof that he was in constant correspondence
on political matters with the actual leaders who had been,—as was notorious,
—drilling and arming; evidence, that those who were thus engaged at the
real seat of the rebellion (Stoney Gut) were “his friends, and taught by him ;”
proof, that he had said that his people would be revenged on the chief
victims of the massacre; and the notorious fact that they had been
murdered under the personal directions of his associates. That some of
this evidence would not have been admissible on a regular legal trial, is,
for reasons already given (vide ante, p. 67), quite beside the question, the
court not being bound by the strictl egal rules of evidence. Whether all of
it would have satisfied a judge and jury on a charge of designing the
actual massacre, on the particular occasion, is quite immaterial; or
whether it would have satisfied them ona general charge of conspiring
with others to incite to rebellion. All that is material is, whether the
members of the court-martial might well enough be so satisfied ; and this the
prisoner himself virtually admitted when he said that the circum-
stances were very much against him. Proof by circumstances, only
consists of more or less of probability ; common law requires that it shall
be the strongest degree ; martial law does not, but only such a degree
as shall, in fact, satisfy honourable men.

(a) That is, assuming the declaration of martial law was lawful, as to
which (vide ante, p. 56), and that the Commander had authority to hold
courts-martial ; though, indeed, it should seem that, under martial law, it is
not necessary that there should be any express authority by military
commission to hold courts-martial ; for such express authority applies to
regular courts-martial held under ordinary military law; whereas, as

02
( 196 )

made, to consider the weight of that evidence (a) ; and as
this is necessarily a matter of opinion, the mere fact that
others might differ from them as to its weight, could not
render their sentence unlawful.

The very object and end of declaring martial law is, to
have the summary procedure by military law; what a great
jurist calls a natural procedure, as opposed to that which
prevails at common law (6), which is formal, and often ob-
structive of justice, because conceived in the interest of the
accused, rather than of justice; and if, after martial law has
been lawfully declared and acted on, the cases are to be
retried as at common law (c), the effect would be such
monstrous injustice, that on future occasions, no one would
venture to declare martial law, or try prisoners by court-
martial, and the consequence would be to deprive martial
law of the deterrent effect of speedy and terrible punish-
ment.

already shewn, martial law is not governed by the same regular rules or
authorities as ordinary military law (vide ante, pp. 67, 69).

(a) This is a general principle, recognised even in the courts of common
law, as to tribunals, bound by the strictest rules of Jaw and evidence,
and of course it applies a mullo fortioré, to such irregular tribunals as
-courts-martial under martial law, which, it cannot be too often repeated,
are not bound by these rules, and are only bound by that great principle
of natural justice which requires that such proof shall be given as, in fact,
may lead to a persuasion of the guilt of the accused.

(6) This idea has been already referred to at, some length, in a previous
part of the work. (Vide ante, p. 69.)

(c) It is not necessary to discuss whether there was evidence upon which
Gordon might have been convicted at common law, on either of the three
charges made, still less whether a jury would have convicted, which might
hhave depended upon how far they were impartial, or were politically in
sympathy with him. But if there would not have been legal evidence
sufficient for a conviction at common law, and if, in common sense, there
could be no real doubt that he was guilty of sedition, which, in fact, caused
the insurrection; and strong reason to believe that he was privy to a plan
for an armed insurrection, and that the rebellion could not be thoroughly
suppressed unless he was punished ; then there would only be the greater
reason for dealing with him under martial law—that is just the sort of case
to meet which martial law is designed, for otherwise a whole colony may be
continued in a sanguinary civil war, merely for want of strict, formal, legal
proof against a party known to be the real head of the rebellion. But, as
( if J

It would be enough, however, on any of the charges, that
there was any evidence which would warrant ‘the findings
against the prisoner on those charges, And, according to
the principles already laid down, it is believed upon ample
authority (a), it would not be for a military Commander, who
set the law martial in motion by sending the prisoner for
trial before court-martial, or for the members of the court-
martial, or for the military Commander, who approved their
finding, to show that there was sufficient evidence, in the
opinion of others, to warrant a verdict ; but it would be for
any who impeached their proceedings, to show that there
was no evidence ; that is, it would not be for them to show
that he was guilty, but for others to show that he was
not, and that they knew it, or might have known it or
seen it, if they had not been culpably reckless, or in a con-
spiracy to destroy him, with or without evidence (6).

It is hardly necessary to say (c) that the members of the

already shown, there was sufficient strict legal proof of complicity in a
design for an armed rebellion, which would have warranted a verdict
against him on w trial at common law, whether or not it would have
secured such a verdict.

(a) Vide ante, p. 190.

(6) It is scarcely worth while to discuss this supposition, which is simply
too monstrous to be entertained for a moment by any man of sense. How
could they, in the face of positive evidence that the prisoner had recom-
mended the blacks to imitate the bloody example of Hayti, and to kill the
whites in order to get the land—confirmed by admitted.and undoubted
facts, be said to have had no evidence? The prisoner himself admitted
that the circumstances were strongly against him. And this no one can
fail to see.

(c) Thus to the court of a coroner, of which the coroner is the judge,
it was said, and it is a very general rule, of very great antiquity, that no
action will lie against a judge of record, for any matter done by him in the
exercise of his judicial functions. (Floyd v. Baker, 12 Lord Coke, 240;
Grenvelt v. Burnett, 1 Lord Raymond’s rep. 454.) The same principle was
virtually laid down as to courts-martial, when it was held that the courts of
Westminster Hall exercise a controlling jurisdiction over them, “to keep
them within the bounds of their jurisdiction.” (Grant v. Gould, 2 H.
Blackst. rep. 68.) Lord Tenterden, C.J., Garnett v. Ferrand, 6 B. & C. 626.
And there is a similar rule as regards even Justices of the Peace, who,
although liable if they act illegally owt of their jurisdiction, are not liable
( 198 )

court-martial, assuming lawful authority to take cognizance
of the case at all, could not be legally liable for any error
of judgment in convicting upon insufficient evidence, or
rather on evidence deemed by others insufficient, for it is a
general principle that men are not liable for lawful judicial
acts.

The Commander-in-Chief having received the report
of the proceeding, sent it to the Governor (a), without

within their jurisdiction, unless they act maliciously or corruptly, and then
they are liable by criminal information. ‘This freedom from action and
question at the suit of an individual, is given by the law to the judges, not
so much for their own sake, as for the sake of the public, and for the
advancement of justice, that, being free from actions, they may be free in
thought, and independent in judgment, as all who are to administer justice
ought to be. And it is not to be supposed beforehand, that those who are
selected for the administration of justice, will make an ill use of the autho-
rity vested in them. Even inferior justices, and those not of record, cannot
be called in question for any error in judgment, so long as they act within
the bounds of their jurisdiction. Corruption is quite another matter, so
also are neglect of duty and misconduct. For these I hope there is, and
always will be, some due course of punishment by public prosecution.”
(Lord Tenterden, C. J., bid, 626.) “It is not to be expected that any person
will act, at the peril of being harassed by a multiplicity of actions, and of
having his reasons and motives weighed and tried by juries, at the suit of
individuals who may be dissatisfied with his verdict. bid.

(a) Despatch of Commander-in-Chief :—“Jamaica Command, Head
Quarter House, Kingston, 22nd October, 1865.—Sir,—I have the honor to
transmit, for the information of your Excellency, copy of a despatch,
received at noon this day, from Brigadier-General Nelson, with proceedings
of court-martial on G. W. Gordon, and other documents, which, having
perused, may I request your Excellency will return to me, with as little
delay as possible. I have, &c., L. Smythe O’Connor, Major-General com-
manding the forces.” His Excellency returned the documents, with this
letter :—“ King’s House, October 22, 1865.—Sir,—I have the honor to
acknowledge the receipt of your communication dated to-day, transmitting
for my information copy of a despatch received at noon this day, from
Brigadier-General Nelson, with proceedings of w court-martial on G. W.
Gordon, and other documents, which you requested me, after perusal, to
return to you with as little delay as possible. I have duly read the papers
referred to, and I fully concur in the justice of the sentence, and the policy
of carrying it into effect. There can be little doubt, I think, whatever Mr.
Gordon’s intention may have been, it is entirely due to his agitation, bad
advice, and seditious language amongst the peasantry of this colony, that
the rebellion broke out, and the massacre of so many gentlemen, and the
( 199 )

any disapproval; and it is conceived that, according to
military law, unless the supreme executive authority chose to
interpose, in the exercise of the prerogative of mercy, the
proceeding would be returned to the General ag a matter of
course, in order that the sentence should be carried out.
And, as the Governor saw no reason to interpose, the
sentence was accordingly executed.

It will be observed that the Governor, in approving of
the sentence, and leaving it to be carried out on the pri-
soner according to military law, based his judgment, not
upon express proof of his actual intent ; but upon his having
been a party to acts, the natural tendency of which was to
excite to rebellion; so that it was due to his agitation and
seditious language that therebellion broke out; and the neces-
sity for his execution, for the suppression of the danger which
still existed, and which he had thus caused. And this, it is con-
ceived, showed a right view of the case (a), and of the
scope of martial law.

destruction of so much property, ensued. It will be remembered, also, by
your Excellency, that Colonel Hobbs, commanding another force in the
field, has reported that he had sufficient evidence to justify the execution of
Mr. Gordon. This latter evidence, too, is quite unconnected with that
adduced before the court-martial, and has not been under consideration at
all. I believe that, were condign punishment to fall only on the ignorant
people who have been misled into rebellion, and the educated coloured man
who led to that rebellion to escape, a very unfortunate impression would
be produced upon the public mind, which, in the present state of the
colony, might lead to very serious results. It is only by making it plain to
the entire population, that the guilty agitator and user of seditious lan-
guage will meet the same punishment as the uneducated fools whom he
misleads, that we can hope to check and put down the spirit of disloyalty
and disaffection, already so rife in the land, and which may, at any moment,
occasion in other parishes outrages similar to those which have recently
occurred in St. Thomas in the East. I received your Excellency’s letter at
4:30 p.m., and I return the documents contained in it, without delay, as
requested. I have, &c., E. Eyre.”

(a) That is, according to the principles of our common law, a man must
be deemed to mean that which is the natural meaning of his words, and the
natural consequence of his acts, and cannot be allowed to pretend that he
did not intend them; and go as, beyond all doubt, Gordon had used sedi-
tious language, calculated to excite the people to insurrection, he was the
( 200 )

It is conceived that the Governor, by his approval of the
finding and sentence, or rather by allowing the martial law
to have its course (a), did not at all increase his responsi-
bility, which was only a responsibility for the arrest of the
prisoner. At all events, in allowing the execution, he only
exercised a judgment as to the expediency of it (assuming
it to be lawful), the grounds of which he stated at the
time.

In considering the course taken by the Governor in this
matter, it would be material to consider (b) the grounds

actual cause of it ; and as, under common law, he would be liable for sedi-
tion, whether he actually intended it or not, and whether or not he was
actually privy to a design for an armed insurrection, of which, however,
there was positive and sufficient evidence—the Governor waiving that,
points out that, for the offence of sedition alone, by martial law, his life was
justly forfeited, because, in fact, he had caused the danger, and only his
death would remove it. Whether the publications were calculated to
excite tosedition, was entirely for the military Commander, and the court,
to consider.

(a) P.S., 28rd October.—‘ Having kept my despatch open, I am enabled
to add that Mr. George William Gordon has been tried by court-martial at
Morant Bay, and sentenced to be hung. The execution was to take place
this morning at cight am. I have seen the proceedings of the Court, and
concur both in the justice of the sentence, and in the policy of carrying it
into effect. It is absolutely necessary, for the future security of Jamaica,
that condign punishment should be inflicted upon those through whose
seditious acts and language the rebellion has been originated. I enclose
copies of the report from the General, and of my letter in reply.”

(6) “Up to the present time, no reasonable or intelligible cause has been
assigned as the origin of this most wicked and widespread rebellion. I
cannot myself doubt, that it isin a great degree due to Dr. Underhill’s
letter, and the meetings held in connection with that letter, where the peo-
ple were told that they were tyrannised over and ill-treated, were over-
taxed, were denied political rights, had no just tribunals, were misrepre-
sented to Her Majesty's Government by the authorities and by the plan-
ters ; and where, in fact, language of the most exciting and seditious kind
was constantly used, and the people told plainly to right themselves, to be
up and doing, to put their shoulders to the wheel, to do as the Haytiens
had done, and other similar advice. The parties who have more imme-
diately taken part in these nefarious proceedings are, firstly, G. W.
Gordon, a member of the Assembly and a Baptist preacher; secondly,
several black persons, chiefly of the Baptist persuasion, connected with
him ; thirdly, various political demagogues and agitators, who, having no
( 201 )

and reasons he assigned at the time, in recounting the mea-
sures which had been taken, whether with reference to the
existence of the danger, or its causes, or their connection
with the prisoner, who had thus been dealt with, as the
cause of a widespread rebellion, and the author of a system
of seditious agitation, which had led to it.

It would also be material to consider, whether it was
before or after this measure that the Governor received
intelligence (a), of the capture and execution of the
active ringleaders in the rebellion, who, up to that time,
had been at large, and determined to renew the rebellion,
and using their efforts to induce the blacks again to
rise. For it is manifest, that their being at large, must
have had a material bearing on the question of necessity,
or propriety for the execution.

And it would be material to consider, that at that time
he declared his belief (6), that the island not only had been,

character to lose, make a trade of exciting the ignorant people ; fourthly,
a few persons of better information and education, who find their interest
in acquiring an influence amongst the black people by professing to ad-
vise them, whilst in reality they are but exciting and stimulating their evil
passions. I particularly call your attention to the fact, that the rebels are
not the poor or the starving, but persons who are well off and well-to-do in
the world, and better educated than the lower class of negroes generally
are—an experience abundantly confirmed from many other quarters.”

(a) It was not until a day or two after the execution of Gordon, that he
heard of this. The intelligence is contained in a despatch from General
Nelson, dated :—“ Morant Bay, Oct. 24. The great rebel, Paul Bogle, has
been captured by the Maroons under command of Col. Fyfe. His trial
will forthwith begin. There is not a chance of his escaping the punish-
ment he so well deserves. At five p.m. Moses Bogle, brother of Paul
Bogle ; George Craddock, secretary to Paul Bogle; and J. M‘Laren, occa-
sional secretary ; and Brown, called captain-general, a notorious rebel, were
hanged. Paul Bogle’s son-in-law, and the men who first entered Mr. Lare’s
house, await execution. Colonel Fyfe reports that he has captured a num-
ber of the rebels armed with cutlasses, but no time to give names.” It was
immediately afterwards announced that Paul Bogle had been executed.

(0) “In reporting the occurrences of the outbreak of the rebellion, and the
steps taken to put it down, it is my duty to state most unequivocally my
opinion that Jamaica has been, and to a certain extent still is, in the greatest
jeopardy. Humanly speaking, I believe that the promptitude and vigour
of action which has at once grappled with and punished the rebellion, has
( 202 )

but still was in great jeopardy, because although actual
insurrection had been put down, disaffection and dis-
loyalty existed in nearly all the parishes in the island, and
he based the necessity for the measures of martial law
mainly on the belief that, from the existence of this disaffec-
tion and disposition to rebellion, the insurrection, if not
promptly put down, would have become universal. At the
same time, he expressed his hope, that before long he might
be enabled, at all events, to declare an amnesty.

The object of an amnesty was one quite consistent with
the continued maintenance of martial law, for it had, in
some degree, already, been virtually anticipated by offi-
cers in command of detachments (a), in conjunction with

been the saving of Jamaica. The whole colony has been upon a mine,
which required but a spark to ignite it. Disaffection and disloyalty still
exist in nearly all the parishes of the island, and had there been the least
hesitation or delay in dealing with them, in the parishes where they be-
came ‘developed in rebellion, I confidently believe, that the insurrection
would have been universal throughout the entire island, and that either the
colony would have been lost to the mother country, or an almost inter-
minable war, and an unknown expense, have had to be incurred in sup-
pressing it.” (Despatch of Oct. 24.) ‘The Governor then goes on to state
that during my absence, the Executive Committee caused the Haytien
refugees in this island, and some other persons who were suspected of being
concerned with or of encouraging seditious movements, to be given into
custody. I quite concur in the propriety of their steps, and no further
outbreak occurs. I hope to be able, in a short time, to proclaim a general
amnesty, except to actual murderers, upon the rebels coming in and sub-
mitting to the Queen’s authority, and I yet hope that the disturbed dis-
tricts will be sufficiently quieted in time for the sugar crops, now nearly fit
for cutting, to be reaped.—E. Eyre. Oct. 24, 1865.”

(a) Thus, the following report, addressed by Lieutenant Adcock to
Brigadier Nelson, on the 25th October :—“ Sir,—I have the honour to in-
form you that, on the 23rd instant, I visited several estates and villages.
The people had, for the most part, deserted their dwellings, and taken with
them any plunder they may have had, although leaving several traces behind
them. I burnt seven houses in all, but did not even see a rebel. During
the day I searched the whole country round about, but the state of the roads
through the bush—mud up to the horses’ knees—prevented me going quite
as far as I would have wished. I, however, consider the state of the country
quiet throughout this district. I caused information to be given to all the
negroes round about, that if they returned to their work they would not be
( 203 )

the measures of martial law, designed to meet that which
has already been pointed out as the great danger to be met
and dealt with ; the withdrawal of the peasantry into the
woods, where they where lurking, disposed to renew the
insurrection when the military should be withdrawn.

It was only after careful and laborious scouring of the
woods, that the officer in command of a detachment, in a
different direction (a), reported that he believed rebels no
longer to exist in that neighbourhood, and on several days
following similar reports were received upon other districts,
a result, it will be observed, not obtained until the leader of
the rebellion had been executed, nor until the military force
had been largely augmented (b). The military commander

molested, provided they were not actual murderers, or concerned in a riot
where murders were committed. In the evening 140 returned to Mr.
Harrison, and a large number came to other planters on the morning of the
24th. On returning to Golden Grove in the evening, 67 prisoners had been
sent in by the Maroons. I disposed of as many as possible, but was too
tired to continue after dark. The rain and roads had completely knocked
up both horses and men this day. On the morning of the 24th, I started
for Morant Bay, having first flogged four, and hung six, rebels. I beg to
state I did not meet a single man upon the road up to Leith Hall; there were
a few prisoners here, all of whom I flogged, and then proceeded to John’s
Town and Beckford. At the latter place I burnt seven houses and one
meeting-house; in the former, four houses. We came so suddenly upon
these two villages that the rebels had no time to retire with their plunder ;
nearly 300 rushed down into a gulley, but I could not get a single shot, the
bushes being so thick. We could all distinctly hear their voices in the
wood all round, but after the first rush not a man was seen; and to follow
them with any advantage, impossible.”

(a) From Easington Court-house, on the 26th October, Lieutenant
Oxley, R.N.,in command at that station, reported: —“I beg to state that
now I have been over the whole of the neighbourhood, and from information
received, and from whatiI have seen myself, I have come to the conclusion
that rebels no longer exist in the vicinity.”

(2) The reinforcement arrived on the 28th October, but were not dis-
tributed until some days later. Thus, on the 2nd November, Colonel
Whitfield reports from Falmouth, under date November 2, that, in accord-
ance with instructions, he had landed troops at Port Maria, arms at St.
Ann’s, troops at Dry Harbour, for Brown’s Town, and proceeded on to Fal-
mouth, where he landed his head-quarters, sending on his detachment to
Lucea. Reports have been received from Savanna-la-Mar and Vere, that
all was quiet in these districts. At Montego Bay there was a slight alarm.
( 204 )

now saw that the time had arrived for the cessation of the
severities of martial law, though not for measures of pre-~
caution.

The orders issued (a), about this time, by the General in
active command, showed an anxious desire to confine the
acts of the military within the strictest limits of military
discipline, and to take those precautions against excesses or
outrages by the soldiers, which, in the first heat of the re-
bellion it would probably be difficult to prevent. The
terrors of martial law itself were held out to repress them.

And the scope of his orders (8), at this time, to officers in

Colonel Whitfield left the first detachment at Brown’s Town. All was
perfectly quiet there.

(a) Order of General Nelson, 25th October:—“ The officers commanding
will respectively forbid any man to enter the house of anyone, under any
pretext whatever, unless accompanied by a commanding officer. Any man
found doing so will be handed over to the Provost-Marshal, for summary
punishment.” It is to be borne in mind that, when martial law was in force,
the soldiers themselves, or the volunteers, or civilians accompanying them,
were subject to it, and could be summarily punished for excesses or out-
rages, and if necessary, even by death. The despatches of the Duke of
Wellington, edited by Colonel Gurwood, contain many instances of sum-
mary executions of his soldiers, by order of the Provost-Marshal, for out-
rages, even in an enemy’s country.

(0) Thus, on the 2nd November, in his order to an officer who was to
relieve a detachment:—“ It will be necessary for you to exercise strict con-
trol over the men of your detachment, and not to permit any man to quit his
quarters for the purpose of foraging, &c. Care to be taken to preserve unani-
mity with overseers and others. You are not sent to your post for the pur-
pose of punishing the negro, but to maintain order, and to afford protection
to the inhabitants gererally. You are not to inflict summary punishment
if any supposed rioter be sent as prisoner to you ; be good enough to inquire
into the case, and, if you consider the same as of a serious nature, send him
to my head-quarters, with the evidence against him. You will doubtless
have many prisoners brought before you, and many possibly through the
animus of the inhabitants. Petty cases of larceny I cannot interfere with ;
they must hereafter be dealt with by the civil authority. I am quite aware
you will be much pressed to administer punishment to supposed crininals,
and you must be firm, temperate, and judicious in all communications with
civilians. You are not, on any account, to march out for the purpose of
attacking anybody. The rebels, if reported in force, which I apprehend is
quite impossible, must not be approached without my distinct order in
writing. You will be pleased strictly to conform to the instructions herein,
( 205 )

command, was to keep the men in strict control, and not to
act for punishment, but for protection and the preservation
of order, there being then an end of overt acts of rebellion ;
and he distinctly directed them not to inflict summary
punishment, but to send serious cases to him.

As to the province and function of the Provost-Marshal
(a), it was officially declared by the General in active com-

and any deviation therefrom will be a source of discomfort to yourself.—
(Signed) A. A. Nelson, Brigadier-General Commanding Field Force.”

(a) The Brigadier-General, having received a complaint against the
Provost-Marshal, near the termination of martial law, wrote the following :
“6th Nov. 1865. Memo. for the Provost-Marshal. Having given Mr.
Marshalleck’s complaint, and the Provost-Marshal’s explanation, my grave
and serious consideration, it is my duty to inform the Provost-Marshal, that
in every way connected with the case, he bas exceeded his powers, and
adopted a course I most strongly reprehend. Mr. Marshalleck states a
policeman told him the Provost-Martial wanted him. Mr. Marshalleck, on
receipt of such message, proceeded to the police station ; even if he did not
know the ‘countersign,’ in no way whatever was the Provost-Marshal
therefore justified in sending him to jail? Had he beena ‘stranger,’ which
he was not, his case should have been enquired into. Briefly—The Provost-
Marshal, in acting as he did, is open to very severe censure ; much of
which I withhold in consequence of the good service he has done, and be-
cause I hope this error in dealing with Mr. Marshalleck was the result of
‘over zeal ;’ but this must be curbed, for I cannot permit individuals, ap-
pointed by constituted authority, Justices of the Peace, to be insulted,
thereby in their persons tending to lower, not only themselves individually
in the eyes of the public, but, what is of far more consequence, ‘ to lower
the civil authority in the island generally.’ Mr. Marshalleck was well
known to be a ‘ Justice of the Peace,’ and under no circumstances whatever,
myself being on the spot, was his arrest and commitment to jail justifiable.
The Provost-Marshal appeared to consider his powers more extensive than
they are. He is simply entrusted with authority to inflict summary pun-
ishment, on any individual, whom he may detect in the commission of
offences against order and discipline, and this is only to be exercised upon
the commission of any particular offence which may call for an immediate
example. No one knows better than myself the necessity, under past cir-
cumstances, for speedy action by the Provost-Marshal—these now are passed.
I, therefore, peremptorily forbid any summary punishment being inflicted
within the camp henceforth ; and all cases of serious nature are to be re-
ferred for my decision, or that of my A.D.C., to whom alone I shall
delegate authority to dispose of such. A. A. Nelson, Brigadier-General
Commanding Field Forces, Morant Bay, 6th November, 1865.” The Bri-
( 206 )

mand to be, to inflict summary punishment on any one
he might detect in the commission of an offence against
order and discipline; and this power was to be exercised on the
commission of any offence, which called for an immediate
example. The Provost-Marshal having, in several in-
stances, shortly before the cessation of martial law, when
the great danger was over, exceeded his powers, was
severely censured by the General in command, and strictly
ordered to confine himself to his proper functions, the
punishment of actual offences within his own observation,
or the execution of orders or of sentences.

As regards the danger of renewal of the insurrection ; as
the Governor could only act upon the information he re-
ceived (a) ; whether these communications were well or ill

gadier in his evidence stated, “Until I issued my memo, Mr. Ramsay had
authority to deal summarily with minor cases. I had to speak to the
Provost-Marshal for ‘over-zeal’ occasionally. Hig duties were most
onerous, and he was terribly harassed by all kinds of persons—and it is
not surprising, in some few instances, he erred in the performance of his
duties.”

(a) The Custos of Westmoreland (Mr. Vickers), Oct. 19, 1865.—‘ Al-
though general tranquillity apparently prevails in the parish, considerable
excitement exists in the Bluefield’s district, owing to there being a case of
felonious shooting against several persons in that district, for trial at the
coming assizes. Two Justices of the Peace, and the clerk of the vestry and
collector of dues, waited upon me here to-day, and informed me that it was
probable that large numbers of people would be brought into Savanna-la-
Mar, and that great excitement would exist at the opening of the Circuit
Court, on Monday the 30th instant. I am of a similar opinion. Should
this extreme excitement result in a riot, which is not improbable in the
present helpless state of the authorities, I would respectfully suggest to his
Excellency the advisability of directing a gun-boat to proceed to Savanna-
la-Mar, to arrive in that port on the 30th instant.” Oct. 19.—“I have now
to submit for the information of his Excellency the Governor, that certain
vague rumours have been long in circulation as to nightly meetings being
held in that district, and of the intention of the parties to burn the Court-
house at the sitting of the Circuit Court, should justice not be administered
according to their preconceived notions. Mr. ‘late, one of the parties to
be indicted for feloniously shooting, has been informed (in an anonymous
letter), that at one of these nightly mectings, it was decided that he should
be murdered in the Court-house, if acquitted. These vague rumours have
had the effect of greatly alarming the inhabitants of the district.’
( 207 )

grounded, would not, as regarded the exercise of his judg-
ment, be so material, as the facts they stated, and the effect
they were calculated to produce upon his mind; especially
as to the deficiency and disparity of military force, asa pro-
tection from rebellion, should it again rise. And it is to
be observed, as the object of government is that confidence
which can only result from the sense of security, if, in
point of fact, there was widespread alarm and apprehen-
sion, whether well or ill-grounded, that itself was a fact,
which could not but be an important element in his judg-
ment.

The propriety of relaxing or terminating martial law
would depend upon the advices received by the Governor.
At this time (a), at the end of ten days from the outbreak
of the rebellion, and nearly that time from the declaration
of martial law, advices were received by the Governor of
outrages threatened or committed, of inefficiency of civil
and military force to prevent their perpetration, and of
general alarm and apprehension, showing a sense of danger
still impending.

(a) “The Custos of Clarendon to the Hon. E. Jordan, Col. Sec., October
21, 1865.—I had the honour of addressing you yesterday, representing the
people in this parish as quiet and orderly, since which I regret to say that
an attempt to burn down the Court-house has been discovered.

With the exception of this act, I have no reason to alter the opinion I gave
yesterday. I have thought it right to put the volunteer force under arms,
and they will be quartered at the Court-house. I beg to report that the
police force are without ammunition.” ‘Mr. Lyon to Mr. Jordan, October
80, 1865.—I have the honour to acknowledge the receipt of your communi-
cation, dated the 26th instant, intimating that a company of soldiers would
be sent here forthwith ; the town is still in great excitement, as in case of
emergency there are weapons of no kind with which to arm ourselves for
protection. Matters look doubtful in respect to the peace of the commu-
nity, as last evening a letter, copy of which is inclosed, was picked up
opposite the police station by a man named Bernard. The justices have
offered a reward of fifty dollars to any party giving information as to the
writer of the article. A letter from Mr. Hutchinson, Wesleyan Catechist
in this town, has just been handed to me, which I inclose for his Excel-
lency’s consideration. “The Rev. A. Lindo to Mr. Hollingsworth.— October
25, 1865.—There is a dense population in this village and its neighbour-
( 208 )

It is manifest that the considerations which would govern
the question of the continuance of martial law, would be
very much the same as those which would determine the
question of originally declaring it, and those would be
mainly considerations of military exigency (a), founded
upon danger, and the means of meeting it; as to
which the Governor (6) could only judge by the reports

hood, and in times like the present one cannot but feel some anxiety on ac-
count of the defenceless condition of the place. This anxiety is increased
by the fact that a large proportion of the peasantry has not been under the
most salutary influence,”

(a) “The Custos of Westmoreland to the Governor :—Grange Hill,
October 23, 1865.—Since writing to you (19th October), Her Majesty’s
ship Steady arrived at Savanna-la-Mar on the 20th instant. After consult-
ing with Captain Bullock, of that vessel, and with such magistrates as could
be hastily collected at Savanna-la-Mar on that day, it was determined, in
consequence of the serious rumours from the Bluefields district, and the
state of alarm in which the town of Savanna-la-Mar was placed, to detain
the Steady, and assemble the volunteers. I deemed it the wisest course to
bring the matter to a crisis before the alleged rioters obtained strength. I
ordered the volunteers to assemble at Savanna-la-Mar on the 21st instant.
This was promptly done, the men were under arms at 10 o’clock on that
day. I held a magisterial investigation, at which all persons supposed
capable of giving evidence were summoned to attend. The utmost state-
ment that could be obtained, even from the most excited of the witnesses,
was that ten or twelve persons had been drilled with wooden guns. It was
decided to issue a notice, cautioning all parties to abstain from drilling,
and offering a reward of 100 dollars for such information as should lead to
the conviction of any party or parties illegally engaged in drilling from and
after that date. I think the demonstration made by the volunteers, backed
by the presence of the vessel of war, has done much good. I dismissed the
corps on the evening of Saturday, and the Steady proceeded on Sunday
morning to Lucea. As regards the necessity for precautionary measures
being adopted to guard against any serious riot at the Circuit Court, I am
still of the opinion conveyed in my letter to you of the 19th instant.”

(2) “Governor Eyre to Captain De Horsey, R.N.—October 23, 1865.—
Successive communications from Mr. Vickers, the Custos of Westmoreland,
as well as letters from other parties, represent the imminent occurrence of
an outbreak at Savanna-la-Mar, at or about the time of the opening of the
Circuit Court on the 30th instant. It is, therefore, considered essential
that a man-of-war should be despatched to the port of Savanna-la-Mar, so as
to arrive there on the evening of the 28th instant, Saturday, and that she
should remain during the sitting of the court, or until the risk apprehended
is over. It is desirable that the vessel sent should be of as large a class as
( 209 )

he received, and which might or might not be exagge-
rated. The great reason for the declaration and reten-
tion of martial law being the inadequacy of military
force, it is manifest, and was amply illustrated on this
occasion, that the necessity for maintaining martial law
must a good deal depend, not merely on the suppression of
the rebellion in the particular district, but on the reports
received as to the apprehensions of its outbreak in other
districts, because the withdrawal of military force thereto
would, by increasing the disparity of military force, afford a
temptation to a renewal of rebellion.

As the great source of danger, and the great reason for
declaring martial law, was the belief in a general spirit of
disaffection (#) ; so, after the insurrection was subdued in

is available, so as to land a considerable force on the spot. The same
vessel, or any other vessel of war, should then accompany the sittings of the
court to the successive localities which it visits, and the sailing of the vessel
should be so timed as to enable her to reach each station the day before the
sitting of the court. The places and dates at which the respective courts
are to be held could be obtained from the Custos, or the judge on the spot,
the courts following each other. I should be much obliged if you could
carry out these arrangements. It would not matter, so far as the Governor
was concerned, whether these apprehensions were well or ill founded, he
could only be guided by the information he received on official authority.”
(a) “The Custos of St. Ann to the Hon. H. Westmorland.—St. Ann’s
Bay, October 24, 1865.—Although the rebellion is happily and promptly
crushed, still I fear its seeds are sown, to bear fruit at some future day.
Here we are quiet, and the people cheerful, and almost all express their
hope that it will not come here, but none say it shall not. I am ever
among them, and tell them it cannot if they come forward, as the good are
more than the bad. They then complain they do not know what to do; in
fact, they want leading and encouraging, for they are as afraid as we are.
Gordon has only two or three adherents here, and these are known only
lately. They had not much brains, and only a certain influence: but the
people do say, if they are arrested they will fight for them, and so on,
From all that I have been able to glean I feel sure that, unless due means
are taken to prevent it, there will be a serious outbreak on the 2nd Novem.
ber (court day) ; for, in the present excited state of the peasantry, a little
beginning may lead to sad results. My servant went to Trelawny on Tues-
day (as far as Swanswick), and was surprised at hearing the labourers so far
away state that there was to be a general ‘rise’ in Brown’s Town on the
2nd November. In re Norman’s Land the negroes swore, without hesita-
P
( 210 )

the place where it first broke out, it would remain neces-
sary to consider whether it was likely to break out again
elsewhere ; and of course the question would turn a good
deal on the indications observed of the general temper and
demeanour of the people, and the continuance, either in the
proclaimed or other districts, of a spirit of disaffection, and
a disposition to rebellion, likely to result in a renewal of
insurrection, if not kept under check by terror of martial
law. And it would be impossible for the Governor to dis-
regard the general impression and belief, that there was a
widespread disposition to renew the insurrection.

So it would be very important, as to the question of the
continuance of martial law, whether, in the same or other
districts, there were secret or disguised meetings, such as had
been made use of for the purpose of rebellion, and such as
might be used for the same purpose again (a). And as to
all these matters, so important elements of judgment, the
Governor could only judge by the information he received.

tion, that if they are pressed, there will be more blood spilt than in St.
Thomas in the Kast. A vast number of reprobates, &c., spoke freely ‘ that
they wish the rebel force would arrive here, as they are quite ready to join’
T hear that men at Ocho Ries have been using most seditious language, and
that the magistrates have not apprehended them. At Finger-post a man
even declared that he had been at the seat of the rebellion, and that he
would bring about the same state of things here.—St. Ann’s Bay, 27th.—
Here a man has made himself notorious by pulling down the Governor's
proclamation, Nothing done to him. A volunteer declared publicly that
he wished to see the bay run with the blood of white people,” &c.

(a) Mr. Hutchinson to Mr. Lyon.—“ Wesleyan Mission House, Lucea, Oct.
30, 1865.—Having been informed that secret religious mectings are being
held in this neighbourhood, under the name of ‘revival meetings,’ and that
such meetings are held all night, and that persons come from a great dis-
tance to attend them—this is to inform you of the same; and while I
believe these people to be without any evil design, at the same time I believe
them to be just the material for evil-disposed persons to work on, and that
their religious fanaticism might soon be changed to rebeliious furore.” The
Rev. F. Swaby to the Custos of Manchester.— Mount Olivet, October 28,
18¢5.—Information has been given to me by my neighbour, Mr. Webbe,
and other white emigrants, that assemblies of persons from St. Ann’s Parish
are taking place near their residence, and they are fearful these gatherings
may he for evil.’ Mr. Salmon to Governor Eyre—“ Malvern, October
( 211 )

Even, although, therefore, the reports from the district
where the rebellion had broken out (a), had satisfied the
Governor that the rebellion had been crushed there, and
the principal persons concerned in it, killed or captured,
this would not be sufficient at once to render it prudent to
dispense with martial law, though it would warrant arrange-
ments with that view; particularly as to the disposal of
those taken under martial law; and, in the meantime, might
warrant the proclamation of an amnesty, as a preliminary
measure of policy.

Although, however, the pressure of martial law was
thus, as far as possible, lightened and confined to mea-
sures protective and preventive, rather than punitive, no
one considered it prudent to think of removing it
altogether. The most important element in the ques-

31, 1865.—Meetings, I am informed, have been called at several places by
a Mr. Plummer, a Mr. Brydson (a magistrate), and a man Gilling, of this
parish, of the inhabitants and small settlers, black and coloured. The per-
sons attending are informed that the growers of produce are imposed upon
and cheated.”

(a) “Governor Eyre to Major-General O'Connor.—King’s House, October
26, 1865.— Further reports from the disturbed districts having confirmed
the impressions I entertained upon quitting them on the 20th October, that
the rebellion existing in the eastern districts of the colony is crushed, and
all the principal persons concerned in the outrages, so far as we are
aware, having now been either killed or captured, I am of opinion that the
time has arrived for making permanent arrangements for this end of the
Island, and relieving a large number of troops of Maroons, and eventually
of Volunteers, from further service there. I am of opinion that all prisoners
should, as rapidly as possible, be tried, and those who are not deserving of
death, or flogging, be released. It is not desirable, with our over-crowded
jails, to sentence prisoners to imprisonment, nor would I advise that flogging
should be resorted to more than can be helped. The prisoners, sent yester-
day to Up Park Camp, should be sent down, to be forwarded with the
papers and documents, and any evidence against them, to Morant Bay, to
be dealt with there by court-martial, as there is already evidence at that place
regarding them. It is my intention to proclaim a general amnesty in the
County of Surry to all except those who have been participators in the mur-
ders, excepting those who are found in possession of stolen property, and
excepting those who are now prisoners awaiting trial, upon their coming in
and reporting themselves to the civil or military authorities as submitting
themselves to the Queen’s authority.”

P2
tion of the declaration or continuance of martial law
being the inadequacy of military force, it was considered
that (a) before the cessation of martial law would be
prudent, or even an amnesty, it would be necessary
to secure such an augmentation of military force, which
should be adequate to raise the defences of the island
to a proper position of security ; and accordingly the pro-
ject received anxious attention, showing a deep sense of
danger still impending, if not danger imminent.

It was vot until after the reinforcement of the military
force, and after great discussion as to its disposition and
distribution, and much consideration and consultation (0)

(a) “Goveinor Eyre to Major-General O'Connor ; dated October 27,
1865.—As the troops sent for by your Excellency from Nassau have
arrived, and those applied for from Barbadoes may be shortly expected,
I have the honour to submit that the following arrangements should be
made for preserving the permanent peace and good order of the island,
and for preventing the occurrence of any further outbreak of rebellion,
or for putting it down promptly, should any further rising of the negro popula-
tion unfortunately take place. I would propose that the following numbers
of troops should be located at the additional stations hereinunder
specified:— . . . . This would make a total of 550 men, which I
consider to be absolutely required for some time to come to insure the
safety and tranquillity of the various parishes not contiguous to head-quarters.
The ordinary military establishment previously kept up in Jamaica I
consider ought still to be maintained for the protection of the capital,
and as a reserve to draw upon in case of any emergency arising.
Iam quite aware of the undesirableness in a military point of view, and in
reference to the discipline and organization of soldiers, of having regi-
ments broken up into small detachments, but, under existing circumstances |
it is for the present unavoidable. We have abundant and undoubted
proof that the same spirit of disaffection and disloyalty which led to the
rebellion in St. Thomas in the East exists to a considerable degree in every
parish in the island; and in a country so extensive as Jamaica, and
affording so few facilities for receiving early intclligence, or for making
rapid movements by land, it is absolutely essential that for some time to
come a considerable number of points should be occupied as military
positions around the coast and island.”

(b) ‘‘ Governor Eyre to Major-General O’Connor. King’s House, Oct. 28,
1865.—My dear General, from the reports just received from you, from Bri-
gadier Nelson and Colonel Fyfe, I am the more confirmed in my views that the
time for an amnesty has arrived. I inclose a note from Colonel Fyfe,
( 213 )

with the General in command and the Commander-in-
Chief, that the Governor resolved to declare an amnesty,
expressly stating that it would not interfere with martial
law ; without which they would not, it was evident, have
agreed to it.

Accordingly (a) there was a proclamation of an amnesty
for all persons in the disturbed district, who should come
in and submit themselves, except only such as had been
actual participators in the crime of murder or arson ; such

received yesterday, on the same subject, which please return when read.
As [ gather from the Brigadier’s letter to you that he has received and
referred back to you my official project of an amnesty and certain military
arrangements, I should be glad, as early as possible, to receive your views
with regard to the amnesty, which in my opinion should (unless some
objection or difficulty exist of which I am not aware) be at once pro-
claimed ; and it will necessarily take a couple of days to get them printed
and sent for distribution and posting. The amnesty would not interfere
with the martial law, or with the disposition of the troops.”

(a) “Jamaica, ss., October 30.—Victoria, &e.—Whereas we are certified
that through the zeal and energy of our civil, military, and naval forces, the
wicked rebellion lately existing in certain parts of the county of Surry has
been subdued, and that the chiefinstigators thereof, and actors therein, have
been visited with the punishment due to their heinous offences: and whereas
we are further certified that the inhabitants of the said districts, lately in
rebellion, are desirous to return to their allegiance. Now know ye, that
in our Royal clemency and mercy, we do issue this our Royal Proclamation,
Hereby notifying that we grant a general amnesty and pardon to all persons
in the aforesaid districts, who shall at once come in and submit themselves
to our Royal authority, by reporting themselves as so disposed, to the civil,
military, or naval authorities, excepting only such persons as have been
actual participators in the crime of murder, or of arson, such persons as shall
be found in arms, or with stolen property in their possession, after this Our
Royal Proclamation ; and such persons as are now in custody awaiting trial:
And we do further notify to all persons concerned in the late insurrection
and rebellion, that it is our Royal command that they do forthwith restore
to the proper owners, or deposit with our civil, military, or naval authori-
ties, all stolen property or plunder of whatsoever kind. And we do further
enjoin all our loyal and loving subjects to refrain from harbouring, and to
give up, to be dealt with according to law, all persons (except as afore-
said), who have been actual participators in the crime of murder or of arson,
all such persons as shall be found in arms against us, and al]l such parties as
may have stolen property in their possession, under pain of incurring our
highest displeasure, and the penalties by law attaching.”
( 214 )

as should be found in arms, or with stolen property in their
possession, and such as then awaited trial.

In announcing this step to the Colonial Secretary of
State (a), the Governor pointed out that it was only the
result of the success of military movements in scouring the
disturbed district, and in seizing the principal leaders ; and
that though the district lately in open rebellion was then
quiet, it was, in short, only the result of a terrible retribution,
and that other districts were even then in such a state of
disaffection that if the rebellion had not been crushed, it
would have rapidly extended thither.

(a) “Governor Fyre to the Right Hon. Edward Cardwell, M.P.—Nov.
2, 1865.—Sir,—I have the honour to report that, since the date of my des-
patch of the 20th ultimo, everything has continued to progress satisfactorily.
As I reported in that despatch, arrangements had been made before I quit-
ted the disturbed districts, for thoroughly examining and scouring the entire
country eastward of a line between Morant Bay and Port Antonio, within
which, as I then stated, any rebels still at large were hemmed in, This
service has been most ably performed by the military, under Brigadier-
General Nelson, and by the Maroons, under the skilful management of their
Colonel, the Honourable A. G. Fyfe. Many rebels were taken and sent in
for trial, and others were shot. Colonel Fyfe also succeeded, with a party
of Maroons, in capturing the notorious rebel leader Paul Bogle, who had
hitherto eluded all attempts to take him. This movement so completely
broke up any smal] parties of rebels who might, up to this time, still have
kept together, that I judged it at once expedient (after expressing my views
to the General, and obtaining his accordance) to issue a proclamation of a
general amnesty and pardon to all except those actually guilty of murder
or arson, or with stolen property in their possession. The districts lately
in open rebellion I therefore now consider perfectly quieted and safe, indeed
far safer than any other part of the island. The retribution has been so
prompt and so terrible, that it is never likely to be forgotten. The ac-
counts from the other parts of the island continue to cause me much anxiety-
No actual outbreak has taken place, and I hope none will; but it is mani-
fest that the seeds of sedition and rebellion have been sown broad-cast
through the land, and that in every parish there are many prepared, if a fit-
ting opportunity offered, to act just as the negroes did in the eastern parishes.
In many parts of the country a sympathy with the eastern rebels, and ex-
pressions of a desire or an intention to do the same in their own parishes,
have been publicly and openly indulged in; whilst the local authorities,
from the absence of any organised force to resist a rising, have not been in

a position to take up and punish such disloyal and scditious language or
threats.”
( 215 )

He pointed out, also (a), to the Secretary of State, that
the measure would not have been possible, but for the great
increase of the military force, thus illustrating that which
has already been pointed out, that martial law is necessary
mainly through the inadequacy of military force to cope
with rebellion on equal terms, and that its scope is rather
to meet a danger by anticipation, than to await actual
attack ; and that if the attack had been waited for, or mar-
tial law stopped with the cessation of actual attack, the
rebellion would have so spread as to be fatal.

That there may be an imminent danger, after actual in-

(a) “ Since the arrival of Her Majesty’s ship ‘ Urgent’ with troops from
Barbadoes, I have been enabled to direct such a disposition of troops as will,
if carried out by the military authorities, enable the Executive to keep
under check and control nearly every parish in the island ; and if itis not
practicable in all cases to prevent a rising, we shall be in a position to put-
it down without much difficulty, as well as to prevent its rapid extension to
other parishes, as occurred in St. Thomas in the East. There can be no
doubt but that there has been an intercommunication between the negroes
of the different parishes, and an intention to act in concert for the destruc”
tion of the white and coloured inhabitants, as is proved by the many
remarks and speeches which have reached us from all directions, some of
them intimating a knowledge that something was about to occur at Sie
Thomas in the East, and that they were waiting in other parishes to be
guided by the action taken there. There does not appear, however, to have
been any actually organised combination to act simultaneously, or if there
was, it was frustrated by the rising taking place prematurely at Morant
Bay. I believe that the military arrangements stated in my letters to
General O'Connor, transmitted in my despatch No. 261* of even date,
together with the presence of two men-of-war, one on the north and the
other on the south coast, constantly visiting the different ports, will render
the island secure and restore public confidence ; but it will be necessary for
a long time to come to keep up an additional number of troops in Jamaica,
as well as to have a man-of-war frequently visiting all the outports.” So to
the Governor of Bardadoes :—“I beg to thank your Excellency, both in
the name of the colony and in my own, for the prompt and ample assistance
thus sent to us. he rebellion has been quelled in the eastern districts of
the colony where it first broke out and spread, but a very unsatisfactory
state of feeling still exists in nearly every parish in the ‘island, in many of
which great apprehensions have been entertained of a rising, and in any or
all of which it might occur. The troops from Barbadoes have just arrived,
in time to enable the Government to control and keep down this seditious
spirit, and I earnestly trust that no further outbreak will take place.”
( 216 )

surrection has ceased, was illustrated at the time by the
numerous and alarming reports of nightly drilling and secret
meetings, and a widespread sense of insecurity and appre-
hension, and such pressing applications for military pro-
tection. And that in the opinion of military men the scope
of martial law is to meet this danger, and not merely to
suppress actual insurrection, was illustrated by the military
reports sent in (a).

in the view of the military Commander, even at that
time, martial law not only ought not to be discontinued,
but should Lave been extended into other districts, where
disaffection and a disposition to rebellion existed (0). But

(a) “The Magistrates of Montego Bay to Colonel Whitfield.—November
1, 1865.—It having come to the knowledge of the undersigned that the
negroes inhabiting the districts at the back of the Kew Park, viz., Mountain
Spring and Lamb’s River, have been holding nightly meetings for some
time past, and, moreover, have been seen in the early morning as if under-
going a drill ; that conversations of a most rebellious and seditious nature
have been very recently overheard, and reported to us, the Magistrates in
this interior, we deem it necessary, to prevent an outbreak, that a number
of troops be despatched as early as possible in aid of the Civil Power.”
“Colonel Whitfield to the Commander-in-Chief—From the little I have
geen of this part of the island, and the great difficulty experienced in pro-
curing means of transport, I am of opinion that Trelawney, St. James’s,
Hanover, and Westmorland should be immediately placed under martial
law, as serious difficulties may arise from the great indifference shown by
the labouring classes to any orders issued by me in my present useless
position, and the sluggish manner in which they are obeyed. I trust the
Major-General will, at his earliest convenience, recommend his Excellency
the Governor to place the above parishes under martial law, or my presence
here, with my present small force, will be of little service to the colony.”
To this the Commander-in-Chief added :—*“I endorse the opinion of Colonel
Whitfield, having been convinced from the first breaking out of the
rebellion that the whole island ought to have been placed under martial
law.—Kingston, November 3, 1865.”

(b) ‘ Governor Eyre’s despatch to Mr. Cardwell, Nov. 3.—Colonel Whit-
field forwards communications from the Justices’ meeting, at a place called
Knockalva, in the centre of the country, on a line between Savanna-la-Mar
and Montego Bay, expressing considerable apprehensions, and stating that
the negroes were having nightly meetings, were supposed to be drilling,
and were known to use openly seditious or rebellious language. Colonel
Whitfield complains ‘of the great indifference shown by the labouring
classes to any orders issued by him in his present useless position, and the
C 217}

in the view of the Governor, as communicated to them and
to the Secretary of State, martial law was not to be de-
clared in districts where, although seditious language had
been used, no actual outbreak had occurred.

And although the Governor did not, on consideration, see
cause to extend martial law, it will not be deemed sur-
prising that he should have continued martial law a litle
longer, and that in his next despatch to the Secretary of
State, he should have referred to this as a confirmation of
the views he had taken of the danger, and the necessity for
martial law (a).

sluggish manner in which they are obeyed.’ It must not, however, be for-
gotten, that no disturbance has yet occurred, and that as the district is
not under martial law, the ordinary civil relations between employer and
employed are still in force. Finally, Colonel Whitfield recommends the
immediate proclamation of martial law in five parishes, and General
O’Connor has appended a minute that ‘he endorses’ Colonel Whitfield’s
opinion,’ adding that he ‘has been convinced from the first breaking out
of the rebellion, the whole island ought to have been placed under martial
law.’ My own views being strongly adverse to the establishment of mar-
tial law in parishes in which, although excitement exists and seditious
language has been openly used, no actual outbreak or disturbance has
occurred, I summoned my Executive Committee, and submitted to them
Colonel Elkington’s communication to Colonel Hunt, as well as some
further reports from the westward, explaining what my views were, and the
grounds of them.”

(a) “Governor Eyre to the Right Hon. E. Cardwell, M.P. November 4,
1865.—Late last evening, an express arrived from General O'Connor, for-
warding me a further communication from Colonel Whitfield, a copy of
which is enclosed. The report states that all was quiet in the district, and
that Colonel Whitfield withdraws his application that martial law might be
proclaimed. General O’Connor endorses this view, and states, ‘ martial law,
from present appearances, I consider unnecessary.’ These additional reports
only confirm me in the justness of the views I entertained from the first,
and in the soundness of the policy I have adopted in the arrangements
directed for the preservation of public tranquillity. Undoubtedly there
has been, and is, a widespread feeling of disaffection, and a tendency to se-
dition and rebellion, but there is no organized combined action, and con-
sequently the location of a small body of troops at a great many different
points has the effect of keeping the country contiguous to each of these
points free from any actual outbreak.” So again, “ Governor Eyre to Major-
General O’Connor. November 3, 1865.—Referring to my communication,
requesting that fifty troops might be stationed temporarily at Black River
( 218 )

That the declaration or continuance of martial law must
mainly turn upon military considerations (a),and that these
considerations even now pointed strongly, not only to its
continuance but its extension, was manifest from the fact
that the military Commanders, upon military grounds,
strongly pressed the extension of martial law, and that
their views had to be opposed and combated by the Governor,
only on the ground that no outbreak of rebellion, in other
districts, had yet occurred.

In the correspondence which ensued between the Gover-
nor and the Commander-in-Chief on the question of the
distribution or the concentration of the troops, the former
desiring distribution, the latter concentration, both with

and fifty at Lucea, I should be obliged by your Excellency’s informing me
whether such arrangements have been carried out, as both districts are in
an unsettled state, and without any adequate protection.” To this the
Commander-in-Chief replied, “that he had not troops available for the
Black River, but had sent a detachment to Lucea.”

(a) “The Governor to the Commander-in-Chief, dated November 4, 1865.
—I have the honour to acknowledge the receipt of a communication from
Colonel Elkington, addressed to Colonel Hunt, for the purpose of being
laid before me, containing a report from Colonel Whitfield, in command of
the Military Division in the Western districts, and other papers. These
documents, together with other communications relative to the state of the
western parishes, have been carefully considered by myself and the Exe-
cutive committee. Weare of opinion that strong indications exist of a
considerable amount of excitement and disaffection in most of the western
parishes, especially along and contiguous to a line between Savanna-la-Mar
and Montego Bay, the centre portions around Knockalva, Seaford Town,
Kew Park, &e., being apparently the most disturbed at present. At the
same time other portions of the western parishes, though, as far as we are
aware, free from any actual disturbance, are in a very unsettled state. In
order to meet possible contingencies, and afford the largest amount of pro-
tection to the loyal and well-disposed inhabitants, we are of opinion that
Black River and Lucea should be at once occupied by troops, as originally
proposed, &c. With regard to the immediate proclamation of martial law
in the parishes of Trelawney, St. James, Hanover, and Westmorland, as
requested by Colonel Whitfield, I would remark that as no actual outbreak
exists in any of them, I do not consider it will be politic or right to adopt
the course suggested at present. Should any serious disturbance take place,
I should be ready to recommend its adoption to a Council of War, which
would have to be summoned to consider the question.”
( 219 )

reference to considerations of military exigency, the
Governor entered largely into those considerations, and
pressed particularly the paramount importance of the pre-
sence of military force, for the purpose of preventing any
further outbreak of a rebellious spirit, which he believed
still to exist in the island (a).

In the correspondence which took place upon the subject
(0) it was pointed out by the Governor that when the

(a) ‘Governor Eyre to General O’Connor. 29th October.—Neither war
nor actual rebellion exist at present in the western districts: there are no
parties in arms against us, nor is there any organised body of negroes, so
far as I am aware; consequently there is at present no requirement for a
large force in any one position, and no likelihood of any serious opposition
being made to a trained military body of even fifty mea only, aided, more-
over, as they would be, by volunteers, police, or the resident settlers, in the
case of any disturbance. The principal positions at which military support
is considered to be required fora time are comparatively isolated from each
other, with no very rapid or constant intercommunication, and that an out-
break might occur at any one of them, and the white population be mas-
sacred, and property destroyed, as at Morant Bay, before aid could be
rendered from a position only a few hours off in point of time. A steamer
would not remedy this liability. I would remind your Excellency that, in
the case of Morant Bay, the Executive had information that troops might
be required at 8 a.m. on the day of the massacre, that is, ten hours before it
took place. Every exertion was used by civil, military, and naval autho-
rities to render assistance promptly, yet it was too late, although Morant
Bay is not more than three and a half or four hours’ steaming from Kings-
ton. In the existing state of matters in Jamaica, with seditious language,
expressions of sympathy with the rebels of the eastern districts, or positive
threats openly and publicly made use of in many places, it is essential that
such arrangements should be made, by obtaining the support of small
bodies of military, as would enable the Government to capture and punish
the offenders without incurring the risk of allowing an actual rising of the
negro population to take place, and perhaps gain head. What is now
required in the western provinces is, not to undertake military operations
where no actual rebellion exists, but to make such a disposition of the
forces available for service in the colony as will prevent rebellion breaking
out, will, as far as such can be provided for, render life and property safe,
and will give a feeling of confidence to the settlers.” —(Parl. Pap., part 1,
p. 70.)

(b) “ Governor Eyre to Major-General O'Connor. November 6, 1865.—
I have the honour to acknowledge the receipt of your Excellency’s letter
of the 4th instant, transmitting, for my perusal, a Report from Colonel
Whitfield, dated the day previous, in which that officer reports that all
( 220 )

inadequacy of military force, which was the great reason
for martial law, was remedied—its distribution in the dis-
affected districts alike tended to prevent outbreaks and
to restore peace and confidence, and that there was not
the less necessity for the presence of military force, in
such districts, merely because they were quiet in outward
appearance, provided there was still the disposition to
rebellion.

The Governor, («) addressing the Colonial Legislature

appeared tranquil in his neighbourhood, and that the movement of a
detachment of fifty-five men from Montego Bay to Ramble Village, where
serious apprehensions had been entertained by the local magistrates that
an outbreak was imminent, had had the effect of allaying those appre-
hensions, and preserving the peace. This is the same neighbourhood
which the Custos of Westmorland and other parties reported to be in an
excited state. The effect thus produced by moving a body of troops into
a district in which disaffection or sedition are latent, is another instance,
like those of Brown’s Town, Vere, and other places, of the soundness of
the policy by which I have been guided in desiring to occupy temporarily
a considerable number of posts at such places as, from the character of
the population or local circumstances, we had reason to fear might become
the theatre of outrage. I believe that if this policy is continued for some
little time, the country will settle down into its usual quietude, and that
before long it will be practicable to withdraw many posts, and concentrate
the troops at two or three principal points ; but I do not think it would
be wise to withdraw these posts at once, merely because the district around
them is quiet; the presence of the troops keeps them so, and it certainly is
desirable that they should all be maintained for the present.”

(a) “It is my duty to point out to you that satisfactory as it is to
know that the rebellion in the eastern districts has been crushed out, the
entire colony has long been, and still is, on the brink of a volcano,
which may at any moment may burst into fury. There is scarcely a dis-
trict ora parish in the island where disloyalty, sedition, and murderous
intentions are not widely disseminated, and in many instances openly
expressed. The misapprehensions and misrepresentations of pseudo-
philanthropists in England and in this country, the inflammatory harangues
or seditious writings of political demagogues, of evil-minded men of higher
position and of better education, and of worthless persons without either
character or property tolose—the personal, scurrilous, vindictive, and dis-
loyal writings of  licentious and unscrupulous press, and misdirected
efforts and misguided counsel of certain ministers of religion, sadly so mis-
called if the Saviour’s example and teaching is to be the standard—have
led to their natural, their necessary, their inevitable result, amongst an
( 221 )

about this time, shortly before the cessation of martial
Jaw, declared his belief that, though the rebellion in the
eastern districts had béen crushed out, the entire colony
had long been, and still was, on the brink of a volcano,
which might at any moment break out in fury ; and that
there was scarcely a district or a parish in it where dis-
loyalty, sedition, and murderous intentions had not been
widely disseminated, and in many instances openly
expressed.

And that a mighty danger even then still threatened the
land, arising from a general spirit of disaffection, the result
of mischievous agitation, tending to’ excite an ignorant
and excitable population to rebellion, arson, and murder.
All which the Legislative Assembly, in their address,
entirely affirmed, pronouncing, at the same time, an em-

ignorant, excitable, and uncivilized population—rebellion, arson, and mur-
der. A mighty danger threatens the land, and in order to concert measures
to avert it, and prevent, so far as human wisdom can, any future recurrence
of a similar state of things, we must examine boldly, deeply, and unflinch-
ingly into the causes which have led to this danger. I know of no general
grievance under which the negroes of this colony labour. Individual cases
of hardship or injustice must arise in every community; but, as « whole,
the peasantry of Jamaica have nothing to complain of. They are less
taxed, can live more easily and cheaply, and are less under an obligation to
work for subsistence, than any peasantry in the world. The same laws as
to the imposition of taxes, the administration of justice, and the enjoyment
of political rights, apply to them and to the white and coloured inhabi-
tants alike. They ought to be better off, and more comfortable, and more
independent, than the labourers of any other country. If it is not so, it is
due to their own indolence, improvidence, and vice, acted upon by the ab-
sence of good example and of civilizing influences in many districts, and by
the evil teaching and evil agencies to which I have referred in all. It is a
remarkable fact, too, that many of the principal rebels in the late outbreak
have been previously well off and well to do in the world, possessing lands,
cottages, furniture, horses, mules, or other property, and with an education
above the average of the peasantry. It is necessary to bring these facts
before you, in order to convince you how widely spread and how deeply
rooted the spirit of disaffection is, how daring and determined the intention
has been, and still is, to make Jamaica a second Hayti, and how imperative
it is upon you to take such measures as, under God’s blessing, may avert
such a calamity.”
( 222 )

phatic and grateful approval of his conduct in the suppres-
sion of the rebellion (a).

Referring to his Excellency the Governor's speech at the
opening of this session, wherein his Excellency the Gover-
nor has stated that “a mighty danger threatens the land,
and in order to avert it, and prevent, so far as human
wisdom can, any future recurrence of a similar state of
things,” and that the Legislature “ must examine boldly,
deeply, and unflinchingly into the causes which have led to
this danger,” the Legislative Assembly shortly afterwards
resolved, “ That his Excellency the Governor be requested
to lay before this house all such information as may enable
the house to deal with this question in the manner indi-
cated in his Excellency’s speech, and as may not be incon-
sistent with the interest of the public service,” with a view,
as it turned out, to the retention of a larger military force
in the island.

In answer to which, the Governor pointed out that the
sources of information on which he had founded his state-
ment were, many of them, necessarily of a nature not
admitting of being produced in a formal or official shape,
and rested rather on oral information, and general belief,

(a) On the 8th instant, the Legislative Council presentedjto his Excel-
lency the address which they had voted. In it they say:—‘‘ While joining
your Excellency in acknowledging the zealous and able services of his
Excellency the General Commanding, the senior naval officer, and of the
military and naval forces, as well as of the volunteers, we desire also to
record our grateful thanks to your Excellency for the energy, firmness, and
wisdom with which you have carried the island through this momentous
crisis. We are well aware that the slightest hesitation on your part would
have been fraught with the most imminent danger to the lives of the loyal
inhabitants throughout the island, and we are well assured that all our
loyal fellow-colonists unite in the expression of thanks which it is now our
privilege to convey to you. We entirely concur in the painful statement
your Excellency has made, that there is scarcely a district throughout the
island where disloyalty, sedition, and murderous intentions are not widely
disseminated, and openly expressed. We agree with your Excellency as to
the causes which have created the danger that now threatens the country,
and will heartily co-operate with you in endeavouripg to remedy this state
of affairs.”
( 223 )

and notorious facts; and he appealed to their own know

ledge and experience, the results of which they had already
amply attested (a).

The Governor, however, laid before the Colonial Assem-
bly a military report (6), made after an inspection of the

(a) “ With every desire to place the fullest information before the house,
it is manifestly impossible to produce all the grounds upon which the
opinion above quoted was based. It consisted partly of oral information
from gentlemen or others connected with the different districts, partly of
information contained in private letters to the Governor, and in letters to
members of the executive committee, or to other gentlemen of position,
which were shown to the Governor ; partly from representations from cus-
todes or magistrates, of the alarming state of their districts, of seditious
and threatening language being openly indulged in, of threatening letters,
of night meetings of the peasantry, of unsanctioned drilling being carried
on in various places, of statements of the insecure and unprotected state of
the parishes, of applications for troops, for men-of-war, for arms, for extra
police or constables, for formation of volunteer corps, &c., &c., the whole
tending to show that sedition and rebellious intention were widespread
through the land, and that in most of the parishes, the residents, who were
best able to judge of the temper and feeling of the peasantry around them
were in a state of great apprehension and alarm. Even in Kingston, well
protected as it is by a large military force, and by the volunteers, so cou-
vinced were the magistrates that a state of things existed which could not
be met by the ordinary civil arrangements of the country, that they espe-
cially requested the Governor to return from the seat of the rebellion, in
the eastern parishes, in order to place Kingston also under martial law.
But the best test, perhaps, of the accuracy of the information upon which
the Government founded its opinion, is to be found in the opinions of the
members of the two branches of the legislature, in their replies to the
opening address. The gentlemen comprising the Legislative Council,
coming from various parts of the island, and with the best means of obtain-
ing full and accurate information, absolutely endorsed the views expressed
in the Governor’s opening address, that ‘there is scarcely a district
throughout the island where disloyalty, sedition, and murderous intentions
are not widely disseminated and openly expressed ;’ whilst the members of
the honourable house itself, many of them also coming from the country
districts, and possessing similar means of knowing what is going on, to that
enjoyed by the members of the Legislative Council, express their opinion
that nothing but a strong government can prevent this island from lapsing
into a second Hayti. The grand jurors of Hanover and St. James have
also expressed their opinion that the spirit of disaffection is widely spread
through the land.”

(b) Colonel Whitfield to Governor Eyre. November 21, 1865.—
( 224 )

island, which attested the existence of a seditious and dis-
loyal spirit throughout ; and the fact of a great amount of
intercommunication between the different districts, which,
coupled with other circumstances, matter rather of personal
observation than of formal proof, and deemed by military
men of significance, tended to show that the danger still
existed.

Numerous official reports (a) received after this, attested

(Extract.)—“TI did not like to answer your letter of the 13th instant
until I had visited all the detachments in my district, and seen enough
of the people to give an opinion. I quite agree with you in thinking that
a seditious and disloyal spirit pervades the entire island, and that in all
probability the negroes would rise, if it were not for the presence of the
military. I think that a considerable amount of intercommunication
has, and is taking.place between the disaffected in the different parishes ;
for I observe men of sullen and dissatisfied looks riding about the country
in all directions. About one-half the negroes look happy and contented ;
the remainder, as if they would take much pleasure in cutting one’s throat.
I think the same feeling exists among the women; but I do not think
this feeling is confined to that district between Savanna-la-Mar and
Montego Bay, but everywhere.” . . . . This report was afterwards
ridiculed as founded merely upon sullen looks, which was a complete
perversion of its meaning. The substantial fact was the amount of inter-
communication evidently going on in all directions; and mention was
made of the sullen looks of the negroes as going to lead to that fact, and
excluding the idea of mere amusement or diversion. Every one knows
that the gencral manner of the negro is lively and cheerful ; and the sub-
stitution of a sullen demeanour was, in the view of those who daily saw
them, w significant fact. No doubt its importance would depend upon
such facts; but it is impossible not to see that it formed one element in
judgment.

(a) Many of these are printed in the Parliamentary Papers on the sub-
ject, parts 2and 3. They continued to be received, not only up to, but
after the cessation of martial law (which was on the 13th November), and
up to the correspondence between the Governor and the Secretary of State,
which led to the appointment of the Royal Commission of Enquiry ; and
even afterwards, addresses continued to pour in from all parts of the island,
attesting the conviction of the inhabitants, that they had been rescued
from a great disaster, the danger of which still continued. There were
numerous reports from the police, and letters from persons of position, in
support of this belief. For instance, sworn information of secret drilling
and arming (Deposition of Coles, Parliamentary Papers, part i, p. 216),
andarming (Letter of Police Inspector Wheatley, ibid, 186).
( 225 )

similar facts, and led to the same conclusion, and it was not
until after anxious consideration, and some opposition from
the military and civil authorities of the island, that the
Governor, a month after the declaration of martial law,
resolved to put a stop to it.

Some of these communications (q) illustrated, in a striking

(a) For instance, as to drilling, even at night, (Statement of Coles), of
which it could easily be said that it was for amusement, &c. So, as to
arming ; there were found at one place, upwards of a hundred pikes, or
spikes made of hardened wood, evidently intended for offensive use, as they
could not possibly be of any other use. The report of the Police Inspec-
tor:—“ Black River, November 16, 1865.—I received a despatch, stating a
number of people in the district were armed with spikes. I went up during
the night, accompanied by Captain Maxwell and some police, and searched
the house, in which I found upwards of 100 spikes made of hard wood;
they are about 8 or 9 feet long. Mr. Myers has also sent down some from
the Portsea district, also armed with spikes. Mr. Levy says there is no
Act to try the people by. I have, therefore, written to ask you how I am
to act. Ibelieve all the Revivalists in this parish and Manchester are
similarly armed. Mr. Lawrence wished me to apprehend them all in this
parish. If I had done so, I would now have had in custody upwards of one
hundred. I did not think it advisable, for if they were apprehended, and
then discharged, it would do more harm than good. This sect are in the
habit of prophesying the destruction of life and property ; and if there is
not some stop put to their wandering from parish to parish, I am afraid
they will take care to make some of their prophecies come to pass. As
there appears to be great apprehension amongst some of the people in the
St. Cruize Mountains, I have ordered up nine of the police ; as the soldiers
are now here, I believe they are needlessly alarmed.” So it was plain it
was only the presence of the military which afforded any adequate protec-
tion. Yet, when the magistrates desired to know what could be done, the
Custos, or Lord Lieutenant, wrote to them in these terms :—“ Spanish
Town, November 20, 1865.—It is no offence to be in possession of any
number of sharpened hard wood stakes, but it may well be coupled with
the surrounding circumstances, an index of an intent to rebel, or commit
some offence, or one of the offences as are specified in the Island Act, 4th
Geo. IV., c. 13,8. 1. If, upon examination of the prisoners, corroborative,
circumstantial, or other evidence be obtained, showing a reasonable suspi-
cion of a plot for any such purpose, they should be held to bail to answer
for conspiring to, &c., &c.; if not, they should be dismissed with a
judicious caution, but without any threat of the possibility of their
bringing the infliction of martial law on themselves by the manifesta-
tion of a disloyal spirit, and should be informed that the Governor can
declare it much more promptly now than heretofore.” And headed :—

Q
( 226 )

manner, the necessity of martial law, for the suppression of
preparations for rebellion, such as arming or drilling ; which
at common law, are only circumstances that might be
evidence of an offence punishable by the dilatory and doubt-
ful process of criminal prosecution, and which could only be
met, either by special statutable enactments, or by martial

law.
In the opinion of the persons of the highest position (a),

“Tt is not advisable to apprehend any subject on a charge which, if
proven, the law does not contemplate as a punishable crime.” The Legis-
lative Assembly passed a special statute to meet the case of drilling, &c,
(Vide ante, p. 39). But statutes could only be put in force by the civil
power, and what would nine or ten police be able to do against 100 men,
armed with pikes? And where would the loyal have been, had the military
been withdrawn ?

(a) Letter from Mr. M‘Lean to Mr. Carr :—‘‘ Lambkin Hill, November
14, 1865, 5 pm.—I have just heard that Mr. Herbert Lindo has forwarded
to the Custos a letter, found in the box this morning, threatening to burn
down Gayle Store, Gayle Estate, and Lambkin Hill, and Sharpe and my-
self denounced, stating that the time is not long. As I have all along con-
demned the apathy of the authorities here, so I now fear that, as in the
rebellion in the east, all these things will be overlooked till the crash comes,
which I have never ceased to think is not far off here, as they say in the let-
ter. Iam sure you will sce the necessity of immediate measures of defence
being provided, and the risk the property runs of being destroyed. I beg
at least you will use your influence with the Governor to have a detachment
of troops sent up to this district, for it is quite evident something is brew-
ing. I am going to get a warrant out to-morrow fora man who spoke of
setting fire to the estate in October, and was overheard by Munroe, my
head man.” Mr Lawrence to Mr. Salmon.—‘‘ Malvern Police Office, Nov.
16, 1865.—On Monday last I was informed that there were a large number
of spears or lances at a place called the Buildings, near Round Hill, and a
number of persons, male and female, keeping secret meetings, and have
been doing so for a long time past. I immediately sent for the Inspector
of Police, and requested him to search the place, and if any such were found,
to apprehend all persons. After the search was made, a large number
of these spears were found, also a large quantity of stones, a loaded gun,
and a paper signed Bogle, with several unintelligible sentences, such as ‘ the
war to begin at Lucea on the 7th August, and buckras and brown men to
be killed, also their animals and beasts.’ I believe the police apprehended
twelve or fourtcen persons, and conveyed them to Black River ; these would
be brought up at the Court to be held at Black River yesterday, and I re-
quested Mr. Wheatle to ask the Magistrates to remand them till you had
been consulted as to the mode of disposing of them. ‘There being no act
( 227 )

there still existed, not only in the district in which the in-
surrection had arisen, but in other and distant districts, the
utmost disaffection and disloyalty, and the most alarming
symptoms of a rebellious spirit.

At the time (a) of withdrawing martial law, the Governor

in force to punish them,’ was the opinion of Mr. Wheatle.” Letter from
Mr. Justice Kerr:—“ Gordon Town, November 21, 1865.—I am informed
that in no part of Jamaica is disaffection more prevalent at the present
moment than in the parish of St. Ann’s. That this has been largely owing,
there as elsewhere, to the acts of demagogues, and the seditious and dis-
loyal tone of an unprincipled newspaper press, theie can be no room to
doubt.”

(a) “ Governor Eyre to Colonel Whitfield. 13th November, 1865. (Parl.
Pap. 1, p. 182 )—At the time that you arrived the msurrection in the eastern
parishes was thoroughly got under, but from information reaching the
Government from every direction it was evident that a seditious and dis-
loyal spirit pervaded the entire island, and that in several localities the
negroes were prepared to rise and repeat the scenes which occurred in St.
Thomas-in-the-East, if a fitting opportunity presented itself; there were
also good grounds for supposing that a considerable amount of intercom-
munication had taken place between the disaffected of the different
parishes, and that had the rising not been brought about somewhat prema-
turely at Morant Bay, it would at a later period of the year have been more
general and simultaneous. Under these circumstances, the natural, and, in-
deed, the necessary action of the Government, was to station small parties of
troops as rapidly as practicable at as great a number of distinct positions as
possible, having in view, of course, first, the requirements and comparative
urgency of the requirements of the respective districts; and secondly, the
accommodation obtainable for troops, and the means of supporting them by

"reinforcements, or by men-of-war, should such support be required. I am
quite aware that, in a soldicr’s point of view, the dispersion of troops in small
isolated detachments is not looked upon with a favourable eye, and that, in
fact, it is exceedingly demoralizing as regards organization and discipline.
But, under the circumstances in which the colony is placed, there is no help
for it, and it is bettcr that the troops should suffer in their military organi-
zation and discipline for a time, if thereby they can prevent the outbreak of
rebellion, than that, by being concentrated and kept in good military order,
they should leave openiags for the disaffection to gain ground and break
into a rebellion, which, once existing, might require a much larger number
of troops and a long period of time for its suppression. It is from consider-
ations of this kind that I have felt it my duty to call upon the General to
make so many detached stations. That the policy is a sound one, is shown
by the result at each station where difficulties were auticipated ; the mere
stationing of a small body of troops has allayed apprehension, and has so far

Q2
( 228 )

explained very ad Mat it was only owing to the increase
of military force, “which allowed of his so distributing it as
to subdue the spirit of rebellion, which was everywhere
latent and ready to break forth, and could only be kept
down either by an adequate military force, or by terror of
martial law.

Before the expiration of martial law, several measures
were passed by the Colonial Legislature, one being (a), to
enable the Governor in future to declare martial law over
the whole or any portion of the island, with the advice of
the Privy Council. Next, an act (b) to enable the Governor
to detain persons arrested under martial law.

Then (c) there was an act of indemnity against all in-

had the effect of keeping the several districts quict. It is, however, im-
portant to bear in mind that it does not follow bece:wuse the districts are quiet,
therefore the troops may be withdrawn ; it ts the presence of the troops that
causes this quietude. The tendency to sedition and rebellion is still latent, and
requires to be carefully watched, and kept in check for some time to come.”

(a) 29 Vict. c. 3, reciting that by 9 Vict. c. 35, martial law cannot be
declared except at a meeting of the council of war, composed of twenty-one
members, and that it was at times difficult to collect such a council for the
purpose of immediately declaring martial law, which might be rendered
necessary by urgent circumstances ; and enacting that the Governor should
have power, with the advice of the Privy Council, from time to time, to de
clare the whole or any portion of the island under martial law, and so much
of the former act as was inconsistent was repealed.

(b) 29 Vict. c. 2, “An act to enable the Governor to detain persons
arrested during the prevalence of martial law. Be it enacted by the
Governor, Legislative Council, and Assembly of this island, and it is
hereby enacted, that, notwithstanding the determination of martial law,
after the recent or any future declaration thereof, it shall be lawful for the
Governor, with the advice of the Executive Committee, to order, by any
writing under his hand, for such time as shall be in such order expressed,
the detention of any person who may have been apprehended during the
prevalence of martial law, and whose case shall not be adjudicated during
that period.”

(c) 29 Vict. v. 1, An act to indemnify the Governor, and all other
officers and persons concerned in suppressing the late rebellion in this
island. Whereas, being seduced by the insidious counsel of wickedly de-
signing persons, many of the Queen’s subjects in this island conspired by
force to overthrow the constitution and government here established by
law ; and in furtherance of such their purpose, did, with force, and in con-
( 229 )

dictments or proceedings against authorities, civil or mili-
tary, or other persons acting “in good faith and of loyal
resolve, for the crushing of the rebellion, for anything
commanded, ordered, directed, or done, whether in a dis-
trict in which martial law had or had not been proclaimed,
in furtherance of martial law ;” that is, during the continu-
ance of martial law, in order to suppress the insurrection
and rebellion, and for the preservation of the public peace.
The scope of the act (a) being not merely to indemnify

federated multitude, commit on the eleventh day of October, in this pre-
sent year of our Lord, one thousand eight hundred and sixty-five, and on
divers other days then following, in the parish of Saint Thomas in the East,
many burglaries, robberies, arsons, murders, and other felonies, with
treasonous purpose, in renunciation of their natural allegiance, and to the
intent of the general massacre of all loyal and well-disposed subjects of the
Queen here dwelling : And whereas upon being informed of such the afore-
said atrocities, his Excellency Edward John Eyre, Esquire, the Governor of
this island, with the advice of a Council of War, and in order to prevent
the extension of the said rebellious outbreak, did proclaim that martial law
should obtain and prevail throughout the county of Surry, with the excep-
tion only of the city and parish of Kingston: And whereas, under God’s
providence, the military and naval forces of the Queen, with the loyal co-
operation of others, Her Majesty's faithful subjects in this island, have
arrested the spread of this rebellion, and saved the lives of law-abiding
citizens from imminent general sacrifice ; and whereas military, naval, or
civil authorities, necessarily employed in the prompt suppression of the
atrocities aforesaid, may, according to the law of ordinary peace, be respon-
sible in person or purse for acts done in good faith, for the purpose of re-
storing public peace, and quelling the rebellion aforesaid : And whereas it
is expedient that all persons whosoever, in good faith, and of loyal resolve,
have acted for the crushing of this rebellious outbreak, should be indemnified
and kept harmless for such their acts of loyalty. Be it therefore, and it is
hereby enacted by the Governor, Legislative Council, and Assembly of this
island, &c.”

(a) First.—That all personal actions and suits, indictments, informations,
attachments, prosecutions, and proceedings, present or future, whatsoever,
against such authorities or officers, civil, military, or naval, or other persons
acting as last aforesaid, for or by reason of any matter or thing commanded,
-ordered, or directed, or done since the promulgation and publication of
the proclamation of martial law aforesaid, whether done in any district in
which martial law was proclaimed, or in any district in which martial law
was not proclaimed, in furtherance of martial law ; that is to say, on, from,
and after the thirteenth day of October last past, and during the continu-
( 230 )

all persons for acts done under and by virtue of martial
law (which, according to the view of the law already laid
down, would not be necessary), but also for acts done,
whether or not under martial law, if in furtherance of mar-
tial law, or for the suppression of the rebellion ; and, more-
over, the object was, as in the Irish Act (a), to provide for
conclusive evidence as to what acts should be deemed to
have been done under, and by virtue of, martial law.

ance of such martial law, in order to suppress the said insurrection and
rebellion, and for the preservation of the public peace throughout the island,
shall be discharged and made void ; and that every person by whom such
act, matter, or thing shall have been advised, commanded, ordered, directed,
or done for the purposes aforesaid, on, from, and since the said thirteenth day
of October, and during the existence of such martial law, shall be freed, ac-
quitted, discharged, and indemnified, as well against the Queen’s most
gracious Majesty, her heirs and successors, as against all and every persons
or person whomsoever. Second.—And it is hereby also enacted, That
his Excellency Edward John Eyre, Esquire, Captain-General and Governor-
in-Chief, and all officers and other persons who have acted under his au-
thority, or have acted bond fide for the purposes and during the time afore-
said, whether such acts were done in any district in which martial law was
proclaimed, or in any district in which martial law was not proclaimed, are
hereby indemnified in respect of all acts, matters, and things done in order
to put an end to the said rebellion ; and all such acts so done are hereby
made and declared to be lawful, and are confirmed. Third.—In order to
prevent any doubt which might arise, whether any act alleged to have been
done under the authority of the Governor, or to have been done bond fide,
in order to suppress and put an end to the said rebellion, was so done, it
shall be lawful for the Governor for the time being to declare such acts to
have been done under such authority, or bond fide for the purposes afore-
said ; and such declaration, by any writing under the hand of the Governor
for the time being shall, in all cases, be conclusive evidence that such acts
were so done respectively.

(a) Vide ante, p. 42. And when it is said that an indemnity is neces-
sary (ante, p. 131), that must be taken to mean practically, with reference
to errors or irregularitie3 almost certain to occur,
( 1 )

PART IV.

OF THE ENQUIRY BY THE CROWN INTO THE EXECUTION
OF MARTIAL LAW.

It has been, it is hoped, established (a) in former por-
tions of this work, that those who have honestly, however
erroneously, established and carried out martial law, are not,
for measures thus taken, legally responsible, either civilly
or criminally, even although the measures may turn out, in
the event, to have been excessive, or beyond the actual
necessity of the case (6). It would follow, of course, from
this, that their conduct in taking these measures, would,
properly and constitutionally, be the subject of enquiry by
the Crown.

As the scope of the former portions of this work has
been to elucidate and illustrate the nature of the authority
established under martial law, so the scope of this, the
present portion of the work, is to illustrate the authority of
the Crown to enquire into, and, if necessary, to censure or
punish, the conduct of its servants, civil or military, in es-
tablishing, continuing, or carrying out martial law.

The preceding part of the work has presented the ma-
terials, 7.¢, the despatches and military reports, on which
the Crown, in the first instance, had to form its judgment,
either finally, or as to the necessity for any further enquiry.

(a) Vide ante Parts I. and II.

(6) It has been pointed out, again and again, that this does not apply to
acts done, indeed, during martial law, but not under it, that is, not really
for the purpose of carrying it out, though under colour of it. It only
applies, strictly, to acts done under military orders or authority, or, at all
events,—if without order—acts done honestly for the suppression of the re-
bellion; and, as to the latter, there may be a doubt as to legal justification
(if they are beyond a common law justification), and this, and similar doubts
and errors, form the scope of an Act of Indemnity. (Vide ante, p. 230.)
( 232 )

It is now proposed to present the comments made by the
Secretary of State upon these documents, or upon the mea-
sures they disclosed, so far as they were disclosed ; the de-
mands for explanation he thought fit to make thereupon; the
grounds on which he advised the Crown to institute an en-
quiry by Royal Commission ; and the nature, scope, and
results of that enquiry.

The Secretary of State, on receipt of the Governor's
despatch (a), reporting the breaking out of the rebellion,
and acquainting him with the measures which had been
taken to suppress the insurrection, and prevent its spread-
ing, wrote a despatch, conveying general approval of the
measures thus taken, but reserving a more particular
expression of opinion, and pointing out that passages in the
military reports required explanation.

The same despatch (b), however, contained passages

(a) Despatch of Mr. Secretary Cardwell. “November 17.—By the
mail which arrived yesterday I have received your despatch, reporting the
breaking out of a rebellion of the negroes in the eastern districts of
Jamaica, which has involved the cruel massacre of many of the principal
white and coloured persons in that part of the island, and acquainting me
with the measures which, in concert with the officers in command of Her
Majesty’s naval and military forces, you have taken to suppress the insur-
rection, and prevent its spreading to other parts of the island. I have to
convey to you my high approval of the spirit, energy, and judgment with
which you acted in your measures for repressing and preventing the spread
of the insurrection. I have also to express my gratification at the clear
and succinct manner in which, under all the great difficulties of your posi-
tion, you have been enabled to submit to the Governor a narrative of the
transaction. It was the first duty of your office to take, as you did, etfec-
tual measures for the suppression of this horrible rebellion, and I congratu-
late you upon the success with which you have attained that object.

(b) “ No doubt you will have much further intelligence to communicate
to me hereafter, on the subject of the measures of severity to which you
have felt it necessary to have recourse. If you had time, in forwarding
these enclosures, to make yourself acquainted with all their contents, it will
have been evident to you that they contain many passages which will
require to be explained, as soon as there shall be sufficient leisure for the
writers to explain fully the proceedings to which they relate. I entirely
agree with you that measures of severity, when dictated by necessity and
justice, are in reality measures of mercy, and do not doubt it will appear
that you have arrested the course of punishment as soon as you were able
( 233 )

which, while recognizing the humanity, and propriety, on
the score of humanity, not less than policy, of measures of
severity for the suppression of the rebellion, indicated a
desire for explanation of certain general statements in the
despatches, and which were supposed to indicate that those
measures had been carried further than necessary, and for
satisfactory evidence that this had not been so.

In a despatch (a) a few days later, the Secretary of

to do so, and have exerted yourself to confine it, meanwhile, to ascertained
offenders, and to cases of aggravated guilt. I observe with pleasure the
hope you express, that ifno further outbreak occurs, you will in a short
time have been able to proclaim a general amnesty, except for actual mur-
derers.” This last sentence clearly implies that, in the opinion of the
Colonial Secretary, the severities of martial law might be for some time
extended to rebels, not actual murderers; that is, to all persons actively
concerned in the rebellion, and this seems to have been the view of the
military authorities. In this despatch, no passages were specified as
requiring explanation ; but in a despatch of the 23rd, certain passages from
the despatches of Colonel Hobbs and Captain Hole were specified.

(a) “The Right Hon. Edward Cardwell, M.P., to Governor Eyre.—
November 23, 1865.—I avail myself of the sailing of the Constance frigate,
to address you on the subject of those enclosures in your despatch of the
20th of October, to which I referred in my last despatch as requiring
explanation, but which there was not time adequately to examine during
the brief interval of the mail. I rely on the assurances conveyed to me in
your despatch, and do not doubt that no time will have been lost in
checking, at the earliest possible moment, those measures of instant
severity which only an overwhelming sense of public danger justifies, and
in returning to the ordinary course of legal inquiry, and of the judicial
trial and punishment of offenders. It remains, therefore, now to examine
the statements contained in those inclosures ; and in doing so I shall bear
in mind the pressure under which they were written, and the great proba-
bility that much remains to be said in those cases which, so far as they are
yet before me, require explanation ; cases in which, without such explana-
tion, the severity inflicted would not appear to have been justifiable. In
calmly reviewing, when the danger is believed to be over, all the occur-
rences of an outbreak in which the spread of the insurrection over the
whole island was apprehended, with the massacre of all the principal
inhabitants, great allowance must be made for acts which have resulted
from that apprehension. Her Majesty’s Government will not fail to bear
this consideration in mind, in the judgment which they will ultimately
form upon all the circumstances of the present case. I have to request
that you will furnish me with copies of the proceedings of the courts-
martial, and of the evidence taken in the several cases, These documents
( 284 )

State expressed his hope that no time had been lost in
checking, at the earliest moment, those measures of instant
severity which only an overwhelming sense of public
danger justified, and at the same time admitted that, in
calmly reviewing, when the danger was believed to be over,
the occurrences of an outbreak in which the spread of the
insurrection over the whole island was apprehended, great
allowance must be made for acts which had resulted from
that apprehension.

In this despatch (a) the Secretary of State specified cer-

are referred to in your despatch and the inclosures, but it was no doubt
impossible that you should have been prepared to forward them by the last
mail. On the case of Mr. Gordon I have addressed you in a separate
despatch.”

(a) ‘That your attention may be drawn to the nature of the cases which
require explanation, I have caused several passages from the reports of the
military officers to be extracted, and copied in the enclosed memorandum.
I request that you will furnish me with all the particulars in your power,
on the subjects to which they relate, and with any other information which
may tend to elucidate the whole course of these proceedings. It is my ear-
nest hope that they may be capable of full explanation, and that I may be
able to express, as I should desire, without qualification or exception, on
account of these circumstances, the commendation to which the officers and
men are entitled at the hands of Her Majesty’s Government for the promp-
titude and vigour with which they suppressed the insurrection, and pre-
vented its extension to the other districts of the island. In conclusion, I
have to assure you that Her Majesty’s Government will await the explana-
tions for which I have called, with all the confidence to which your high
character fully entitles you, and with the greatest consideration for the
painful anxieties and difficulties of the position in which you have been
placed.” The reports in question were that of Colonel Hobbs, 15th
October (vide ante), and Captain Hole’s reports, 17th October and 19th
October. The principal passages were :—‘ We secured six prisoners, whom
I would have shot, but from the fact of their being unarmed. I now regret
I did not do so, as they are no doubt rebels. We have, however, killed
between fifteen and twenty of them at extraordinarily long distances,
having discovered since several groups of them on the hill sides, and in
trees.” Again,in his urther report, dated 19th October, Colonel Hobbs
says:—‘I have reached Stoney Gut from my head-quarters, Moncklands,
having shot a number of rebels on the way. I have directed this rebellious
settlement to be utterly destroyed.” In his report, dated 19th October,
midnight, he writes: —‘“ I found a number of special constables, who had
captured a number of prisoners from the rebel camp. Finding their guilt
( 235 )

tain passages in the reports of two of the military officers
commanding detachments, which he deemed to demand
explanation, though not specifying the reasons or respects
in which the explanation was required, but apparently
pointing to the execution of prisoners not taken in arms in

the field.

The Secretary of State in another despatch, about the
same time, urged the duty of “checking at the earliest possible
moment, those measures of instant severity (a) which only an
overwhelming sense of public danger justifies ;” and of
returning to the ordinary course of legal inquiry ; and he
demanded the copies of the proceedings (6) of the various
courts-martial, especially in the case of the supposed author
of the rebellion ; the tenor of the demands indicating an

clear, and being unable to either take or leave them, I had them all shot.”
And the report of Captain Hole:—“ Within a mile of us, every rebel who
did not stand, on our approach, to give an account of himself, was shot.” So
Colonel Hobbs: —“ Bogle’s valet has been selecting the captains, colonels,
and secretaries, out of an immense gang of prisoners just come in here,
whom I shall have to shoot to-morrow morning.” It is to be observed that
these reports had passed through the hands of the military commanders,
with tacit or expressed approval, and that they would be best able to say what
accorded with military usage.

(a) “ November 23.—The phrase ‘ instant’ seems to betray a notion that
it is only at the time of, or just after, actual outrage and insurrection, that
such severities can be justifiable; whereas, as the next line implies—
the real scope of martial law is the sense of danger ; which may exist, and be
well justified by known facts, as by a widespread spirit of disaffection, and
readiness for insurrection, for some time after the actual insurrection hag
stopped.

(6) Here it is not to be inferred that courts-martial, under martial
law, are governed by the ordinary rules of regular military law—a fallacy
which pervaded the inquiry in the Ceylon case, and seems, indeed, to
have been the main ground of the inquiry, although it is particularly
pointed out by all military and legal authorities on the subject. It is well
known to military men, and ought to be known to lawyers, that no records
are necessarily kept, and no written notes taken, of courts-martial under
martial law. In the case of the supposed author of the rebellion, on ac-
count of the great importance of his case, notes were made and kept, but not
necessarily. The Secretary of State referred to such cases as this, in which
it had been stated that notes had been kept.
( 236 )

impression, already combated in these pages, as erroneous,
—that the scope of martial law is only resistance to
actual outrage or suppression of actual insurrection, in-
stead of the complete suppression of rebellion, the Testonae
tion of safety, and the removal of danger.

At the same time (a), in a separate despatch, the
Secretary of State desired to be furnished with the
evidence in the case of the person who had been executed
as the author of the rebellion, and to be informed whether
the Governor’s approval of the execution “rested on evidence
of the prisoner’s participation in the insurrection itself,
or the lesser offence of seditious language, calculated, but
not intended, to produce rebellion ;” and he also desired
explanation of Gordon’s removal from a district not under

(a) Mr. Secretary Cardwell’s despatch, 23rd Nov.—‘In your letter to
Major-General O‘Connor, of the 22nd Oct. (vide ante p. 198), you approve
the execution of Gordon, which had taken place under the orders of Bri-
gadier-General Nelson, stating that you had little doubt that whatever
Gordon’s intentions might have been, the rebellion was entirely due to his
seditious language. It is necessary that Her Majesty’s Government should
be, as speedily as possible, placed in a position to understand the proceed-
ings, and that you should send me all the documents and evidence adverted
to in your despatches. I wish to know whether your approval of Gordon’s
execution rested on evidence of his participation in the insurrection itself,
or the actual resistance of authority, out of which it rose, or evidence of
the lesser offence, of using seditious and inflammatory language, calculated,
indeed, to produce resistance to authority and rebellion, but without proof
of any deliberate design of producing that result. It is a matter of obvious
remark, that Gordon was arrested at Kingston, to which martial law did
not apply, and taken to Morant Bay, for trial under martial law. I desire,
also, to see it clearly established, that he was not executed until crimes had
been proved in evidence against him, which deserved death, and that the
prompt infliction of capital punishment was necessary to rescue the colony
from imminent danger, and from the horrors of a general or widespread in-
surrection, and the repetition elsewhere of such a slaughter of the white
and coloured colonists, as had taken place in the eastern parts of the
island.” The scope of this letter, it is to be observed, was evidently not the
mere legality of the trial and execution, as to which express proof of an
actual intent would be unnecessary, and the prisoner would be answerable,
criminally, for consequences his acts were calculated to produce (vide ante,
p- 181). The scope of the letter was the propriety of the execution,
waving any question as to its legality.
( 237 )

martial law, into the proclaimed district, for trial under
martial law.

In a subsequent (a) dispatch, the Governor most clearly
and succinctly stated the grounds on which he had declared
martial law, and deemed its continuance necessary; and
also what he deemed the true scope of martial law, viz.,
not the mere suppression of insurrection, but the subduing
of a rebellion, the removal of danger, and the restora-
tion of peace, security, and confidence, notwithstanding
a great disparity and inadequacy of military force, by means
of the terror inspired by prompt military movements, and
swift and exemplary measures of military severity.

And in this despatch he pointed out (6) that such severity,

(a) ‘‘ King’s House, December 8, 1865.—Having been given to under-
stand that some exception has been taken by a portion of the press of
England (though I have not seen any portion of the articles referred to),
to the steps taken by me to put down the rebellion in the eastern parishes,
Ithinkit due to you, aswellas to myself, to make the following general
statement :—Long previous to the rebellion breaking out in Morant Bay,
Government had good reason to believe that a spirit of disaffection
apd disloyalty pervaded very many of the parishes; and as far back ag
August last, I had occasion to bring to your notice, that I had been obliged
to send down a ship of war to certain parts, to watch events and be prepared
for any emergency. The actual rising of the negro population took place
at a different point of the island, and it rapidly extended from that point
along the coast line of the eastern end of the island for some fifty miles,
until headed and turned by the landing of troops at Port Antonio. It was
also at the same time spreading to the north-west, up the line of the Blue
Mountain Valley, until checked by meeting the troops detached from New-
castle to intercept its progress. It is scarcely necessary to point out that
the negro is a creature of impulse and imitation, easily misled, very excit-
able, and a perfect fiend when under the influence of an excitement, which
stirs up all the evil passions of a race little removed in many respects from
absolute savages. Under these conditions, and knowing the insecure and
unprotected state of the entire colony, and the small force available for
our defence, in the event of any general rising taking place simultaneously,
it became a matter of absolute necessity and self-defence, not only
promptly to put down the outbreak, but by proclaiming martial law in
the districts where it existed and contiguous thereto, to ensure that the
punishment inflicted should be summary and severe. It was necessary to
make an example which, by striking terror, might deter other districts
from following the horrible example of St. Thomas in the East.

(6) In the long run, and viewed as a whole, any amount of just se-
( 238 )

in the long run, was humanity and mercy, since by that
means only, under such circumstances, could a rebellion be
suppressed, which if once allowed to get a head, would
prove dreadful and formidable, if not fatal, and could only
be suppressed, if at all, after a protracted and sanguinary
struggle, and a loss of life, infinitely more terrible.

The Governor (a) in his answer to the despatches, con-

verity thus exercised became a mercy, and the exaction of the last penalty
for rebellion from the few, has, in all human probability, saved the lives of
the many, as well as relieved the colony and Great Britain from a long?
protracted, bloody, and expensive strife; for it must be remembered thatin
an extensive, thinly populated, and mountainous country like Jamaica, with

out roads or means of traversing the mountain fastnesses, the subduing of
a general rebellion would be no easy or short task. All the general
arrangements, as narrated in my despatch, No. 251, of the 20th of October,
were directed by myself personally, and for them I alone am responsible.
The subordinate arrangements and details with regard to the internal man-
agement of the districts under martial law, were of course iu the hands of
military authorities, whose reports, so far as they have reached me, I have
duly transmitted to you. It is, perhaps, impossible, when a country is
under martial law, imposed on account of scenes of violence, plundering of
properties, burning of houses, and cruel butcheries, and when there is little
time for that cool and careful investigation which takes place under more
favourable circumstances, but that some occurrences must ensue which are
to be deplored, and under which individuals may possibly suffer unjustly.
But, taken as a whole, and bearing in mind both the vastness of the danger
and the small means of meeting it, Ido not consider that the punishment
has been greater than the crime merited, or than was necessary to prevent a
recurrence of it. I have a perfect conviction in my own mind, afteran
experience of four years in Jamaica, and with the best and most varied
means of obtaining information, that this colony has had a most narrow
escape from universal anarchy and tumult, and that this escape is due
solely to the promptness and decision of action by which the first outbreak
of rebellion was put down and punished.”

(a) Despatch from Governor Eyre, dated Dee. 8, received Dec. 30.—
“With regard to the various letters which accompanied my despatch and
to certain passages in some of them, which you say call for further explana-
tion and justification, I have to remark that, whilst all the general arrange-
ments for the suppression and punishment of the rebellion were made
under my own immediate direction, the subordinate details and the internal
management of the districts under martial law, including the appointment
of courts-martial, the trial of prisoners, the approval of sentences, and the
carrying out of such sentences, vested entirely with the military authori-
ties, were reported to the General in command, and only partially came
( 239 )

veying the demands for explanation, pointed out that, though
the general arrangement for the suppression and punish-
ment of the rebellion had been made under his own imme-
diate direction, the subordinate details, and the internal
management of the districts under martial law, rested en-
tirely with the military authorities, were reported to the
General in command, and only came under his notice in a
general way, in letters and reports, which he had read
hastily, under pressure of business; that it had been im-
possible for him to scrutinize details, and that he should
have to call for explanations before he was in a position to
offer any.

In this despatch (a), the Governor pointed out that

under my notice, in a general manner, through the letters to which you
refer. Many of these letters I only obtained a hurried glance at, when
overwhelmed with the labour and anxiety of the most pressing events ; and
although copies were eventually furnished to me, most of these only reached
me just in time to be appended to my despatch, without my being enabled
to have other copies made for my own use. After despatching the October
mail, the thought, work, and anxiety entailed in arranging for the safety
and protection of the Western districts of the Colony, absorbed my at-
tention from a very early hour in the morning to a very late one at night ;
and even during the few brief hours that I attempted to obtain rest, there
was rarely a night during which I was not called up at all hours, one, two,
or three times, by expresses from one place or another, requiring me to get
up at once and reply to or give directions connected with such communi-
cations. I mention these particulars only to show the pressure that was
upon me (a pressure which has seriously affected my health), and how im-
possible it was for me to scrutinize or investigate carefully, the details of
the enormous mass of papers, which were continually coming before me-
As regards those connected with the rebellion, my desire was to place you
in possession of the fullest and most complete information with the least
possible delay, and in order to effect this, I was often obliged to transmit
documents which had been but hastily glanced at, without analyzing or
reporting upon them, and without retaining copies. I will now endeavour
to procure such copies, and read through the correspondence, with the view
of calling for fuller information upon such points as seem to require ex-
planation or justification ; but I should be obliged by your also causing me
to be informed of the particulars in regard to which you desire further
reports, so that nothing may be omitted, which it isin my power to do, to
place all the circumstances in a clear manner before you.”

(a) “It is very probable that some occurrences may have taken place
( 240 )

though it was impossible to prevent isolated acts, which
might not be justifiable, yet, that the general character of
the measures taken was not likely to be so, and that the
reports of the officers in command of detachments were
written in the field under great disadvantages, and could
hardly be expected to contain all the details; but that, if
all the circumstances under which they acted were known,

which cannot be justified during the prevalence of martial law, and where
so much was necessarily left to the discretion of, or where an unforeseen re-
sponsibility was by circumstances forced upon, subordinate authorities,
differing greatly in character, ability, temper, experience, and judgment.
Such cases can only be sincerely deplored. It would have been impossible,
under the excitement and urgency of the circumstances attending the out-
break, to have either guarded against or prevented their taking place. It
must be remembered, too, that the threatening accounts received from the
other districts of the Colony, and the limited means of meeting any diffi-
culties which might arise there, made it a matter of simple self-defence,
that the outbreak in the East should both be put down with the least pos-
sible delay, and be punished in the most summary manner. The safety, in
fact, the preservation, of the whole Colony made this imperative. As re-
gards the general features of, and mode of carrying out the retribution
which was so necessarily and justly dealt to those who were principals in
this most cruel and unprovoked insurrection, I do not doubt but that ample
justification will be forthcoming by the officers under whose immediate
directions and supervision it took place. The high rank and character of
all these officers is, I think, a full guarantee that nothing improper or
unjust took place with their knowledge or sanction ; and I do not doubt
but that they will be ready and able to afford full explanation and justifi-
cation upon any points which, without such further information, may at
present seem unsatisfactory. 1f I recollect aright, there was in one of
Colonel Hobbs’ own letters, a statement to the effect, that having some
prisoners whom he could not take with him, he had found it necessary to
shoot them. I presume this implies after trial by court-martial, and either
upon their being taken in arms against the Queen, or upon direct testimony
of their complicity in the rebellion. It must be remembered that the mili-
tary officersin the field wrote under great disadvantages, and when worn
out in body and mind by the fatigues and anxieties of the day. Under
such conditions, their reports could scarcely be expected to contain all the
details which it is desirable to know. With regard to Colonel Hobbs, there
may also have been circumstances connected with his position, which made
an immediate decision with regard to his prisoners essential; for I dis-
tinctly remember in another of his despatches, that he stated he was sur-
rounded by thousands of rebels, that his position was very precarious, and
that he required immediate reinforcements.”
( 241 )

it would probably appear that they had a justification for
all that had been done under their orders.

At this time, moreover, quite apart from those unauthen-
Be representations by which alone, probably, no British
Minister would have been influenced, the Secretary of
State afterwards received (a) official reports through the

(a) “Extract of report from Lieutenant Adcock, to the Commander-in-
Chief.—October 25.—I burnt seven houses in all, but did not even see a
rebel during the day. On returning to Golden Grove in the evening,
sixty-seven prisoners had been sent in by the Maroons. I disposed of as
many as possible. On the 24th I started for Morant Bay, having first
flogged four and hung six rebels. I did not mect a single man upon the
road up to Leith Hall. There were afew prisoners here, all of whom I flogged,
and proceeded to John’s Town and Beckford. At the latter place I burnt
seven houses and meeting-house, in the former four houses.” (But see the
rest of this despatch, ante p. 203). So, there was a report of Sir L.
M‘Clintock, dated 8th November, giving an account from the date of
his arrival at Jamaica, on the 31st October, the day after the amnesty.
—“The insurrection had been completely quelled. I am informed
that no white people were assaulted subsequent to the jirst fearful outrage
on the 11th ultimo ; and the following day, at Golden Grove, about 300
persons had been hanged, and at least 800 were shot, chiefly by the Maroons,
who entered with fierce zeal into the bush hunt after rebel negroes. On
the 30th ultimo, Governor Eyre issued a proclamation, pronouncing a gene-
ral amnesty to all those who submitted, excepting only persons implicated
in the late murders. It is also announced that martial law is to cease on
the 13th instant. Arrests are daily being made. The prisoners are gene-
rally sent to Morant Bay for trial, and # large proportion of them are
hanged. It will be impossible ever to ascertain the actual loss of life, as
great numbers were shot down by the Maroons in the woods; 1,500 lives
would perhaps be a moderate computation.” This report, on the face of it,
was worth little or nothing, for it was the report of a naval officer on board
ship, who could only write from vague rumour or hearsay, as to matters
inland, with which he had no proper concern whatever, not having been—as
Lieutenant de Horsey had been—actively engaged in suppressing the rebel-
lion ; and, indeed, it was a voluntary communication in an official form.
Moreover, on the face of it, it was the result of gross and ridiculous ex-
aggeration, or rather of fabrication, on the part of the actual informants,
whoever they were, and turned out to be utterly untrue. Still it was sent
as an official report, and could not be wholly disregarded, and it evidently
made an impression upon the Secretary of State, and he wrote to the
Governor upon it. “I have, however, been greatly concerned to find, in
the enclosed despatch from Sir L. M‘Clintock, the following statement:—

R
( 242 )

Secretary of War, from the Commander-in-Chief; and
through the Admiralty, from the Naval Commander on the
station, containing statements which appeared to him to
afford serious ground for enquiry.

At the same time, the Secretary of State’s attention was
drawn to the publication of a letter from the officer who
had commanded a detachment of volunteers or irregulars,
purporting to give, what he called, “a picture of martial law,”
which, although not official, nor, so far as appeared, ever
brought to the notice of the Governor, or even of the
Military Commanders, was deemed to call for refutation or
explanation (a).

“At least 800 were shot, chiefly by the Maroons, who entered with fierce
zeal into the bush hunt after rebel negroes.’ Ihave to request your imme-
diate attention to this subject. I trust it willappear that Sir L. M‘Clin-
tock has been misinformed, and that an impression xo unfavourable to the
employment of the Maroons—an impression which I certainly should never
have derived from your despatches and those to which I have above referred
—will not turn ont to have been well founded.”

(a) Captain Ford, in command of the St. Thomas in the East Irregular
Troops, wrote (in a private letter which got into the papers) as follows:—
“*On our march from Morant Bay we shot 2 prisoners, and catted 5 or 6
and released them, as these latter were only charged with being concerned
in plundering, not murderers. This morning we made raid with 30 men, all
mounted, and got back to head-quarters, bringing in a few prisoners, and
having flogged 9 men and burned 3 negro houses, and then had a court-
martial on the prisoners, who amounted to about 50 or 60. Several were
flogged without court-martial, from a single examination. One man, John
Anderson, a kind of parson and schoolmaster, got 50 lashes; 9 were con-
victed by court-martial ; one of them to 100 lashes, which he got at once;
the other eight to be hanged or shot; but it was then quite dark, so their
execution was postponed till morning. We quarter on the enemy as much
as possible; small stock, turkeys, &c., we take ad libitum; other supplies
we give receipts for. We press all the horses and saddles we can find ; but
the black troops are more successful than ours in catching horses, nearly all
of them are mounted. They shot about 160 people on their march from
Port Antonio to Manchioneal, hanged 7 in Manchioneal, and shot 3 on their
way here. This isa picture of martial law; the soldiers enjoy it, the in-
habitanta have to dread it; if they run on their approach, they are shot for
running away. The contents of all the houses we have been in, except only
this very house, but including the barracks, have been reduced to a mass of
broken and hacked furniture, with doors and windows smashed by the
( 243)

The official despatch from the Commander-in-Chief (a)
to the Secretary of State for War (0), contained a serious
charge against the Governor, of having “ crowded the camps
with political prisoners and rebels, captured in districts not
under martial law, and whom the Governor desired to
have tried by martial law,” that is, as the Commander-in-
Chief represented, illegally.

Upon these official representations, the Secretary of

“State addressed to the Governor another despatch, enclosing

rebels.” This, perhaps, caused more sensation in the public mind than
anything else, but the most serious statement in it “They” (7. ¢, the black
troops) “shot about 160,” &c., was obviously only written loosely upon hear-
say, and turned out to be quite erroneous.

(a) Between whom and the Governor various differences had arisen.

(0) ‘Not only was the Up Park Camp, but Morant Bay, crowded with po-
litical prisoners and rebels, handed over by the civil authorities, captured
in districts not under martial law, but whom the Governor and his Excel-
lency’s constitutional advisers desired might be tried by military courts-
martial. Brigadier-General Nelson, entertaining some doubt as to the
legality of this proceeding, called upon me for my opinion, which endorsed
his own, that, although he might have the power and authority to try the
prisoners, he would not be justified to bring them before w military court-
martial, for political offences committed prior to the breaking out of the
rebellion, attending or uttering treasonable language at seditious public
meetings, their proceedings published and commented upon in newspapers,
and whom the Government, either from weakness or mistaken lenity, did
not at once arrest, thus operating as an indirect encouragement to the dis_
affected to persevere in their lawless designs.” The statements in this
despatch were greatly exaggerated, for besides Gordon, the head of the re-
bellion, only two or three persons were ordered by the Governor to be
arrested out of the proclaimed district. It was, however, a scrious thing
for the Commander-in-Chief thus officially to charge the Governor with
arrests and acts which he deemed of doubtful legality, especially, as at
least one prisoner, the most important of all, had been executed, under cir-
cumstances similar to those he described, though apparently with the
sanction and assent of the Commander-in-Chief himself, and though a dis-
tinction had been drawn by the General in command, between seditious
words prior to the declaration of martial law, and incitement to the re-
bellion itself, the subject of martial law (vide ante, p. 174), that distinc-
tion was not adverted to in this report, and it was probably this letter which,
more than anything else, impressed the Secretary of State’s mind with
doubts as to the legality of Gordon’s trial.

R2
( 244)

them (a), and containing more specific and categorical
demands for information as to the number of persons killed,
either in the field or by sentence of court-martial, and
under what circumstances, in each class of cases.

(a) “In reference not only to the particular reports adverted to in this
and in my former despatch, but to the proceedings generally, I am desirous
to point to the main topics which, in the opinion of Her Majesty’s Govern-
ment, demand your report :—1. The number of persons tried, and of those
sentenced by courts-martial, specifying the charge and sentence, and whether
or not the sentence was executed, and under whose authority, and whether
minutes were taken of the evidence on which the sentence was founded in
each case; all minutes of evidence so taken to be appendcd to the return.
The return should show also at what places and times respectively the
offences were charged to have been committed, and the accused persons
were arrested or captured and tried, specifying in cach case whether the
ofience was committed before or during martial law, whether the arrest or
capture was made during martial law, and ina place to which martial law
extended; and if the person accused was arrested or captured in a place
to which martial law did not extend,and removed to a place to which it
did extend, there to be tried by martial law, and for an offence not com-
mitted during and under martial law,it should be stated by whose au-
thority this was done, and whether under the advice of the Attorney-General
of Jamaica, 2. Whether any persons were hanged, flogged, or otherwise
punished without trial, and if so, by whom and under whose authority in
each case, specifying the name, sex, colour, and quality of the person pun.
ished, the nature and date of the punishment, the nature and date of the
offence, and the grounds on which it was assumed to have been committed.
8. The number of persons, so far as can be ascertained, who were shot in
the field or in the bush, their names, sex, quality, and colour, and whether
adults or children, specifying in all cases whether they were resisting or
flying, whether armed or unarmed, and if armed, with what weapons,
whether such as are used only for the purposes of offence, or such as are
used also in agricultural or other peaceful occupations. 4. Whether any
and what oral or written instructions were given to officers in command of
detachments sent in pursuit of rebels, whereby they might know on what
evidences or appearances, other than hostile action or attitude, they were
to assume that those whom they might meet with were rebels ; and whether
those officers, or any of them, were led by their instructions, or otherwise,
and without authority induced, to assume that all persons flying or hiding
trom pursuit, or all persons found with plunder, or all persons leaving their
labour on plantations, were to be regarded as rebels and shot when met
with. Copies of all written instructions should be furnished.” (Despatch
Dee. 1.)
( 245)

The Governor (a), on receiving these specific demands
from the Secretary of State, could only forward them
through the Commander-in-Chief to the Generals and
Officers in command, in order to obtain their answers and
explanations on matters as to which, of course, himself knew
nothing ; and this must necessarily have caused immense
delay and inconvenience,

In a further letter (6) to the Commander-in-Chief, com-
municating the Secretary of State’s demand for explanations

(a) “Governor Eyre to Major-General O’Connor.—December 13, 1865.—
In reporting to Her Majesty’s Government the occurrence of the late
rebellion, I accompanied such report with copies of various letters re-
ceived from the military and naval officers and others concerned in putting
down and punishing the outbreak. Those letters were necessarily hurriedly
written—brief and wanting in detail as to some of the circumstances which
are mentioned as little more than bare facts. Her Majesty’s Government
do not doubt that, when time permits, the writers will be able to explain
fully those proceedings to which the passages adverted to relate, and I am
instructed to obtain the necessary particulars for their information. In
accordance with these directions I propose, as the most convenient way, to
send to you, in separate despatches, extracts from each letter received
through you or Brigadier-General Nelson, containing any passages relative
to which further information is required, so that they can at once be referred
back to the writer, for such explanation as may enable Her Majesty’s
Government to justify the course taken. As the copies of most of these
letters only reached me in time to append to my despatch, I was unable to
retain copies for myself. I must, therefore, request your Excellency will be
good enough to cause new copies to be made for me at as-early a date as
possible, to be paid for at the cost of the Colonial Government. I enclose
a schedule of the letters of which I require additional copies.”

(b) “In making these inquiries it is right to inform the officers that Her
Majesty’s Government does not do so as prejudging any person concerned
in any proceeding, but for the purpose of eliciting information not given in
the reports, but which it is believed will be forthcoming, and without which
it is impossible to justify some of the transactions referred to, and which
are only stated by the writers in so very brief, hurried, and incomplete a
manner. In the meantime Her Majesty’s Government relies upon the high
character of all the officers, civil, military, and naval, who were engaged in
suppressing the rebellion, and upon my assurance that the measures taken
will prove to have been a merciful substitute for the much larger measure
of punishment which would have had to be executed had the rebellion been
allowed to gather head and extend itself. So many misrepresentations and
exaggerations appear to have reached England and been credited, that
public opinion naturally and necessarily requires that all the facts should
( 246 )

of the military reports, the Governor pointed out that the
object of the Government was to obtain information not
given in the reports, and without which it appeared im-
possible to justify some of the matters referred to, which
were only stated in a hurried and incomplete manner ;
at the same time he alluded to misrepresentations which
were circulated in England, and avowed that it must be
expected that under martial law, some few occurrences
would take place which could not be justified, but which,
he believed, would turn out to have been unsanctioned by
the military Commanders.

The Commander-in-Chief (a), when thus appealed to for

be plainly and fully stated, to correct the unfavourable impression which has
been made upon a portion of the public at home ; and I feel sure that when
this is done, and it is borne in mind how great and imminent was the
danger threatening the entire colony, and how small and inadequate were
our means of meeting the emergency, full justice will be done to the valu-
able services rendered to the State by the officers under whose supervision
the late rebellion was so ably and promptly put down. It must always be
expected that during a time of active operations in the field, and especially
when a country is under martial law, some few occurrences must take place
which are to be regretted, and which are not accompanied by that strict
formality which ought to be observed when practicable. Some cases of im-
propriety, and some acts of injustice, must always take place; but I trust
it will be found that these have been as few as could reasonably have been
hoped for, and have been unknown to, and unsanctioned by, those more
immediately in command.”

(a) “ Major-General O’Connor to Governor Eyre.—Head-Quarters, Dec.
24, 1865.—I had the honour to receive, at 8 o'clock last night, your Excel-
lency’s despatch of the 23rd December, with extracts of despatches from the
Secretary of State for the Colonies, transmitting portions of reports of the
officers engaged in suppressing the late rebellion, and requiring explana-
tions and justification. No time shall be lost by me in obtaining the
required information ; but as Colonel Hobbs and Lieutenant Adcock, of the
2nd Battalion of the 6th Royal Regiment, are at Newcastle, and Captain
Hole, of the same corps at Port Antonio, I cannot communicate with them
and receive replies for the mail closing to-day. I know nothing of Captain
Ford, St. Thomas in the East Irregular Troop, nor does he belong to the
forces under my command. I hesitate not to say that Her Majesty’s
Government may rely on the high character of the officers, military and
naval, engaged in suppressing the rebellion, and upon the assurance of your
Excellency that the measures taken will prove to have been a merciful sub-
stitute for the much larger measure of punishment which mnst have been
( 287)

information, could only refer to the officers who had com-
manded detachments, and in the meantime declared his
firm belief that it would be found that no officers under his
command had sanctioned or directed any severities not
justified by military usage, or the exigencies of the service.
In consequence of statements made in denial of the right
to declare martial law, the Governor (a) wrote a despatch

executed, had the rebellion been allowed to gather head and extend itself.
As regards the statement conveyed in Sir Leopold M‘Clintock’s official
despatch to the Admiralty, ‘that at least 800 were shot chiefly by the
Maroons,’ I never heard a faint rumour to this effect, and I entertain such
confidence in the experience, discretion, and humanity of Colonel Fyfe, that
Iam convinced the Maroons, under his immediate command, could not
have perpetrated such atrocities with impunity.”

(a) “ Governor Eyre to Secretary Cardwell, dated December 20, 1865.—
Having noticed, in some of the English papers, that the late serious out-
break in this colony has been designated as a local riot stimulated by the
circumstances of the moment, and that no outrages took place until after
the people had been fired upon by the volunteers, I have the honour to in-
close a statement which I have received from the Honourable H. Westmor-
land, showing that the belief that a rebellion was about to break out was
entertained and made known to him a fortnight before it took place,
though he then discredited and ridiculed such a supposed contingency.
There can be no question but that for months prior to the rising in St.
Thomas in the East, there were uneasy feelings, and vague apprehensions
entertained by persons having opportunities of seeing or hearing much of
the labouring classes as to the intentions of the negro population, not
particularly in the eastern districts, but throughout the island generally.
With regard to the predetermined intentions of the rebels at Morant Bay,
it is sufficient to state that, prior to their making their appearance before
the court-house, or coming into collision with any one, they had sacked the
police-station, and carried off all the arms and ammunition. Many indica-
tions have also come under my notice, evidencing that persons at a dis-
tance from the scene had a general knowledge beforehand of what was ahout
to take place. Nor was the rising confined to the inhabitants of Morant
Bay. It spread from district to district with great rapidity, until stopped
by meeting the military, who were landed at Port Antonio in advance of
the rebellion, and marched back to Long Bay, where they met the move-
ment, and prevented its further progress. It was not the Morant Bay
people who went from district to district, but the negroes of each district,
who rose as the wave of rebellion advanced towards them.” And, writing
at the time to the Commander-in-Chief, he said (October 14, Parl, Pap.,
Part 2, p. 5):—“ We are working hard, and endeavouring to hem in the
insurgents. . . . We shall proceed to Port Antonio (forty miles dix.
( 248 )

to the Secretary of State, setting forth succinctly the
grounds on which he had come to the conclusion, that it
was not a case of mere local, or casual riot, but the out-
break of a general rebellion, or of a rebellion which, if not
speedily crushed, would speedily become general, and prove
formidable, if not fatal.

After thus requiring, through the Commander-in-Chief,
from the military officers who had heen engaged in carry-
ing out martial law, the explanations demanded by the
Secretary of State, the Governor wrote (a) a despatch to
the Secretary of State, informing him of the measures he
had thus adopted for the purpose of obtaining the informa-
tion demanded, and pointed out the delay which must
necessarily interpose before it could be obtained.

tant), where the bulk of the insurgents are. We shall, I hope, be able to
get the rebellion under; but within a given area it is general, and the mas-
sacres have been horrible.” And in the above despatch he enclosed a state-
ment by a respectable witness to Mr. Westmorland, to the effect that, from
what he heard the blacks say two weeks before the outbreak, he feared that
a rebellion was about to break out. (Parl. Pap., part 2, p. 8.)

(a) “ Governor Eyre’s despatch, 23rd December.—The packet being a
day behind time, and yesterday having been absorbed in attending to mat-
ters connected with the Legislature, which it had been previously arranged
I should then close, Iam unable to do more than barely acknowledge the
receipt of your communications, and state that I will lose no time in endea-
vouring to collect and forward to you, so far as it is procurable, the
information asked for in the above despatches. Much of it is, however,
necessarily unattainable, as I understand that at drumhead courts-martial
it is never usual to keep any records of evidence, and the case of G. W.
Gordon is, I believe, exceptional in this respect. All the officers whose
reports require explanation were under the immediate orders of General
O’Connor, to whom those reports were forwarded. I have this day written
to General O'Connor a despatch, of which I inclose a copy, forwarding
extracts of your despatches, and from the inclosures accompanying them,
and I have requested the General will take such steps as are necessary to
procure the required information from the officers referred to, with the least
possible delay. As the various officers who were in command of detach-
ments during the rebellion are now more or less scattered, it is possible
that some delay may take place, &c.” Before this despatch was written,
the Secretary of State had resolved, no doubt a good deal upon this con-
sideration of delay, to issue a Royal Commission of Enquiry.
( 249 )

In this despatch (a) the Governor reminded the Secre-
tary of State that, during the rebellion there was no time
to examine critically the hurried reports which were sub-
mitted to him for a very hasty perusal, and he had no rea-
son for supposing that any unjustifiable acts were being
committed ; that he could not himself pretend to have
acted strictly within the trammels of law, which no man
could under such circumstances ; but that he believed he
was able to justify himself fully, and that, though he did
not doubt that some acts of wrong might have been com-
mitted, he believed they were not sanctioned by the mili-
tary Commanders, who had to act under circumstances of
pressing emergency.

In this despatch (6) the Governor, while admitting that

(a) Despatch, December 23rd. In this despatch he wrote:—“ That
improprieties or acts of wrong have been committed during the existence
of martial law, I do not doubt. It was only to be expected this should be
so, but I trust it will be found eventually that these instances have been
comparatively few, and have either been unknown to, and unsanctioned by,
the officers immediately in command, or have taken place under the pres-
sure of circumstances which, if not justifying, may at least in some degree
palliate the irregularities committed. In reviewing the acts of the military
and naval authorities in dealing with any rebels who were found in arms,
or in summarily disposing (after trial by court-martial) of those who were
taken prisoners, it is necessary to bear in mind that there were no prisons
or jails to which to send prisoners, and that some 500 men were engaged
in quelling a rebellion in districts (St. David, St. Thomas in the Hast, and
Portland) tenanted by a population of some 40,000, and comprising upwards
of 500 square miles of country. Nor must it be forgotten that nearly the
whole of the population, if not in actual rebellion, was sympathising with
the rebels, and taking no steps to arrest its progress, or aid the authorities.
It was impossible, under such circumstances, that they could either take
charge of and guard any large number of prisoners, or make long delays to
institute more formal trials. The administration of summary justice
became a necessity, and any hesitation would have been fatal to the success
of the military operations. Whilst regretting the necessity of, and deplor-
ing the evils unavoidably resulting from, such a course of action, I do not
see how it could have been avoided.”

(b) “No doubt the tone and terms used in some of the reports by officers
engaged in the field are not such as could have been wished, considering
the grave events to which they relate; but great allowances must be made
for the circumstances under which these reports were written, when
( 250 )

the tone and language of military reports, written under
such circumstances, might, in some instances, have been
questionable, urged it was hard that brave soldiers, who had
saved a colony, should be on that account misrepresented,
and held up to odium; and he expressed his firm belief
that they would be able to justify uny acts which might
appear of a doubtful character.

In one instance (a) only, was the Governor able at once to

harassed and worn out by the duties and anxieties of the day, and whilst
the minds of the writers were still freshly impressed with the atrocious
occurrences which had then so recently taken place, and which might again
occur, in other districts, at any moment. But it is very hard that our sol-
diers and sailors, whose courage, zeal, and exertions have been the saving
of Jamaica, should be so misrepresented and traduced, as I see they are by
a large section of their countrymen at home, who know nothing of the dan-
gers or difficulties which had to be surmounted, or of the pressing necessity
which existed for the most prompt and decisive action. I have now only
to thank you for the confidence you have been pleased to express, pending
further information, in my own character, and in that of the military and
naval officers concerned. As regards myself, I rest upon the conviction
that I did my duty faithfully, in not shrinking from undertaking a respon-
sibility which few men would have accepted, and in doing which I was quite
aware of what the consequences would be, so far as regards misrepresenta-
tions and vituperation on the part of a very powerful party at home, but
which action on my part I believed to be, and still believe to have been,
essential to the preservation of Jamaica. Ido not pretend to have acted
within the strict trammels of the lay—no man could under such circum-
stances; but I do not doubt being able to justify myself fully to Her
Majesty’s Government, and those who are willing to take an unprejudiced
view of all the circumstances and events. As regards the military and
naval officers, I feel assured that they will be able fully to explain and
justify occurrences which, from being insufficiently narrated at present,
may appear to be of a somewhat doubtful character; and if in some of
the details unavoidable irregularities or improprieties have occurred,
the general nature of the operations will be found to have been just and
necessary, and consistent with the high character so deservedly enjoyed
throughout the world by British soldiers and sailors.”

(a) “Postscript to Governor Eyre’s Despatch, 23rd December:—P.S.
Sunday, 24th December.—Since writing this dispatch I have received an
express from the Admiral, containing Sir L. M‘Clintock’s explanation. You
will be glad to learn that his opinion rested on no better grounds than mere
rumours or unauthenticated reports, and newspaper statements. I trust this
instance will show how little to be depended upon information or opinions
are when expressed by persons not having the oppurtunity of personal
( 251 )

obtain from the officer implicated, immediate and explicit
refutation of the accusation made against the force he had
commanded ; an irregular force which had been, in the
opinion of the military Commanders, mainly instrumental
in suppressing the rebellion and capturing the ring-leaders,
but who had been accused of wholesale massacre. And the
refutation of this charge was conclusive.

The explanation afforded by the officer, moreover,
was of general importance, as illustrating one of the un-
avoidable necessities of martial law, which might lead to
some instances of unknown and unlicensed excess.

The Secretary of State had observed, as to a corps of
Irregulars (2) who had been employed, that “the Colonel

knowledge, or of referring to authentic reports, and when the grounds are
not given upon which such information or opinions rest. . . . .” The
Governor enclosed a letter to the Commander-in-Chief about it:—‘‘ With
regard to the opinion, as to the conduct of the Maroons, expressed in Sir L.
M‘Clintock’s official despatch to the Admiralty, I may remark that I have
called upon Colonel Fyle to report upon the conduct of the Maroons, and
that I understand from him, at a personal interview yesterday, that so far
from Sir Leopold M‘Clintock’s impression being correct that ‘at least 800
were shot, chiefly by the Maroons,’ he believes that not more than 25 were
go shot, and many of these ina skirmish with the rebels, in which one of
the Maroons was wounded. I ghall, however, be obliged by your also afford-
ing me any reports or information you may have, or be able to procure, on
this subject ; certainly, I myself never heard even » rumour to the effect
stated by Sir Leopold M‘Clintock, until I saw it in that officer’s official
report.” The Commander-in-Chief quite concurred in this ; and he enclosed
aletter from Colonel Fyfe, to the effect that only 25 rebels were killed by
the Maroons, of whom 10 were killed in the field in an encounter, and 5 by
sentence of court-martial, and one shot with the ring of one of the victims of
the massacre on his finger.

(a) The Maroons. Colonel Fyfe, their Commander, wrote this reply : —
“The rebels had sacked every house, store, and shop, within an area of 30
miles by 12, embracing the town of Bath, and extending from the confines
of the parish of Port Royal, to the mouth of the Plantain Garden River, in
St. Thomas in the East. very article coveted and of easy transport was
carried off, whilst all others were destroyed, the floors of the rooms exhibit-
ing one indiscriminate mass of books, private papers, smashed looking-
glasses and glass ware, broken tables and chairs, mattrass hair (for even the
ticking was ripped off), and every article of household furniture. The
plunder was either carried by the rebels to their houses, or hidden in the
( 252 )

was the only officer mentioned as being employed with
the force, whilst divers parties of them appear to have been
out in various directions out of the immediate control of
the Colonel ;” and he naturally asked, “ was there any, and
what control exercised over the operations of those parties ;
and what was it expected the nature of those operations
would be, and of what nature, in point of fact, did those
operations prove to be?” It happened that the Colonel
in command of this force was the only one of the officers
in command of detachments, who was able at once to afford
an answer, which he did, to the effect that he had given
orders “never to injure a woman or child, nor to kill a man
who surrendered,” and that he had no reason to think his
orders had been disobeyed. That he could not help some-
times sending out detached parties, but always under

officers of their own.

Before, however, the despatch enclosing their expla-
nations was even written, (and it would be nearly a,month
longer before it could be received), a strong feeling had
arisen, from a concurrence of causes (a); that even if the

bush ; and as the names of the parties committing these excesses were
known (for, under the expectation of acquiring the country, they had spared
the women for ulterior ends), the duty of the Maroons was to scour the
whole of the above district, for the purpose of capturing these parties, and
of recovering the plunder. It is quite true that I was the only white officer
employed with the Maroons, and that, although I always accompanied the
main body, I had, in carrying out the above operations necessarily to detach
parties in different directions, and beyond my immediate observations ; but
these parties were always commanded by one of their own officers, who
acted under these specific instructions, namely:—‘ Never injure nor insult
a woman or a child, nor kill a man who surrenders.’ And I would ask
whether it was not as safe to have detached parties of the above kind, which
with some slight allowance for the licence inseparable from the existence of
martial law, and the feelings necessarily engendered by the atrocities com~-
mitted by the rebels, would obey those instructions in all important points,
as to send those parties in charge of other officers of another colour, invested
with discretionary powers of action.”

(a) The Governor, in his despatches, had levelled attacks at a powerful
religious body, as in some degree morally responsible for the rebellion.
(Vide ante, p. 200). And this had excited their hostility. Then there was
( 253 )

declaration of martial law had been originally justified, it
had been continued much longer than necessary, and car-
ried out with unnecessary severity ; and though, to some
extent, this feeling was evidently, as already has been
shown, based on misrepresentation of the fact (a), and was
also partly based on misconception of the law as to the real
scope of martial law, representations had been urged
with great force upon the Secretary of State, to pronounce
a censure, or to institute an enquiry.

As to the continuance of martial law (6), the charge
against the Governor, for continuing it unnecessarily, was
mainly based upon some passages in his dispatch, announcing
that the rebellion was checked, headed, or hemmed in, and
was crushed, in the district first disturbed ; but the same
dispatch stated that there was widespread disaffection,
and a general dread of the renewal of the rebellion, and, in
point of fact, acts of rebellion continued.

The misconception of the law which, coupled with the

the feeling,—natural among people who live under ordinary law—adverse
to martial law. Then there were the grossly exaggerated accounts of its
severities.

(a) It was denied that there had been a rebellion: but only a mere
local riot. It was declared that the insurrection, even if there had been
one, was over in three days. It was stated that 2,000 negroes were exe-
cuted, and that their dead bodies were strewed over a space of eight miles,
&c., &c. These misrepresentations, gross as they were, would be counte-
nanced and excused by Sir L. Clintock’s letter, of which the refutation did
not arrive till long afterwards.

(b) “The Governor stated in his address to the Colonial Legislature,
within three days from the time of the first intelligence of the rebellion,
it was checked, and headed, and hemmed in ; and within a week it was fairly
crushed, and arrangements made for securing and punishing the rebels
who had not yet been made amenable.” “In his dispatch to the Colonial
Secretary, October 20, the rebellion having broken out on the 11th, and
martial law having been proclaimed on the 13th, he wrote: “ Within
three days the rebellion was checked within the disturbed district ; within
a week it was suppressed (vide ante),” But it was plain, from the con-
text, that he spoke of actual insurrection, and that there was still a
great dread and danger of a renewal of it, arising from a widespread
state of rebellion. And, moreover, at that very time, though he did not
know it, acts of armed insurrection were continuing (vide ante).
( 254 )

misconceptions as to the facts, formed the basis of the
representations which were made to the Secretary of State,
was founded upon an erroneous view of the law, supported
by a legal opinion (a), which had been obtained and pub-
lished, to the effect that the scope of martial law is only
the repression of actual insurrection, so that any exe-
cutions under martial law, after the actual insurrection,
or active resistance, had ceased, would be beyond its scope,
and so be unjustifiable.

So long as these representations were made upon mere
hearsay, or unauthenticated statements, and so far as they

(a) “Martial law is the assumption, by the officers of the Crown, of the
absolute power exercised by military force, for the suppression of insurrec-
tion, and the restoration of order and lawful authority. The officers of the
Crown are justified in any exertion of physical force, extending to the
destruction of life and property to any extent, and in any manner that may
be required for the purpose; but they are not justified in the use of exces-
sive or cruel means, and are liable, civilly or criminally, for such excesses.
They are not justified in inflicting punishments after resistance is sup-
pressed, and after the ordinary courts of justice can be reopened. Courts-
martial, by which martial law, in this sense of the word, is administered,
are not, properly speaking, courts-martial, or courts at all, and are mere
committees, formed for the purpose of carrying into execution that discre-
tionary power assumed by the Government.” It will be seen that this
opinion applies to the common law power of the military to resist or repress
actual insurrection or riot (sometimes called martial law), not the power,
which can only be assumed by the Crown, of declaring, and acting on, a
state of war, and extending to the population, in a state of rebellion, the
rigour of military law. That power, however, can only be exercised when
there is a rebellion, and a levying of war against the Crown. (Vide ante,
Part I.). Now, this opinion was written just after the publication of the
first despatch received from the Governor, which, it was thought by some,
did not disclose sufficient facts to show that there had been such a rebellion.
And there can be no doubt that the case laid before the eminent counsel
who signed this opinion, strongly represented that there had not been such
a rebellion. Consequently (as an opinion is always written with reference
to the case submitted), it was not necessary for them to enter fully into the
nature of martial law in its strict sense, but only in its secondary sense, of
the function of the military acting in aid of the civil power. And they
very carefully added, that they could not say that there might not be facts
which would justify the measures which had been taken; though, at the
time, they could not see that there were such facts.
( 255 )

were addressed to objects of public agitation, they would
probably not have been regarded by the Secretary of State,
as they were not only libellous, but constituted a serious
indictable offence (a), because tending to pervert the public
Justice of the country, supposing the parties attacked were,

as it was presumed they were, criminally liable for their
acts.

Assuming, as the assailants did assume, that the Governor
and the military Commandersor Officers would be criminally
liable (as certainly they would be triable here, in this
country, supposing them to be so liable), then the publica-
tion of such accusations against them, as must necessarily
tend to prejudice the public mind against them (6) here,

(a) ‘Whether the statements were true or not, for, by putting the public
into possession of the facts before the period at which the party is to be put
upon his trial, such a prejudice in the public mind may be created, as to
make it impossible, when the party is afterwards put upon his trial, to
select a jury whom that prejudice has not reached. The law of England is
anxious for the interests of persons against whom charges may be made. If
a man commits a crime, there is a legal and constitutional mode by which
that crime may be brought into discussion. He is liable to be tried; but
though his crime may be as great and as aggravated as possible, he ought
to have a full, fair, and dispassionate investigation of his conduct at the
time of his trial. In this case the libel imputes that which would be mur-
der, and it charges, not any particular individual, but a body at large, with
the crime. It is impossible to read this, even although he may not be able
to fix on any of the persons constituting the body, so that if afterwards
they were indicted, a prejudice would be excited against them.” (Bayley,
J., The King v. Burdett, 4 B. & Ald. 324.)

(b) “It would be a great obstruction to public justice, and a great stigma
on the administration of justice in this country, if, in a collateral way, in a
transaction in which the public mind may happen to be interested, any
person, by a voluntary publication on his part, should be at liberty to raise
the question, whether particular individuals had or had not been guilty of
particular crimes ? instead of doing so in a constitutional mode, by pressing
forward the charge against those individuals openly, and giving them a fair
opportunity of defending themselves against the accusation (Bayley J., The
King v. Burdett, 4 B. & Ald. 325). And the Judges were careful to point
out especially that this was so, whether the statements were true or false.
And Sir Francis Burdett, for sending such statements to the newspapers,
was fined £2000, and imprisoned for several months.
( 256 )

where, if at all, they would be triable, was, undoubtedly, a
grievous offence against justice, and an indictable offence.

And although, no doubt (a), representations sent honestly,
however erroneously, to the Secretary of State, in the view
of obtaining a recall of the Governor, or an enquiry into
his conduct, or some other action as a Minister, would -be
privileged and protected by law, it would be otherwise of
mere voluntary speeches at public meetings, or the publica-
tion of partisan appeals or speeches, whether at meetings
or deputations.

The Secretary of State (b), being a direct adviser of the

(a) Applications to the Secretary of State for redress are, when honestly
made, privileged, even though defamatory, provided he is the competent
authority to grant redress, or were honestly, though erroneously sup-
posed to be so (Fairman y. Ives, 5 B. & Ad. 642. Blagg v. Sturt, 10 Quecn’s
Bench Rep. 905, per Lord Denman, C. J.) But expressions of enmity or
hostility would take away the protection (Zbid. p. 907, per Wilde, C. J.,)
in a court of error. Thus, in the famous Greenwich Hospital case, where
Capt. Baillie had presented memorials, reflecting on Lord Sandwich, to the
Directors and the Governors of the hospital, and the Lords of the Ad-
miralty ; the court discharged a rule for a criminal information, without
nicely considering whether he could fully substantiate all that he had
alleged, or what remedy could be afforded to him by those to whom he ap-
pealed, being convinced that he had bond fide complained of a grievance, and
bond fide sought redress (Rez. v. Baillie, 21 Howell's State Trials, 1).

(b) The office of Secretary of State is one of very ancient date. He was,
in fact, the ordinary channel of communication between the Sovereign
and the subject. The duties of the office were discharged by a single per-
son, then there were two, since then, until very lately, there were three,
having separate departments, the Home, the Forcign, and the Colonial. A
memorial to the Sccretary of State is virtually a communication to the
Queen, through her Secretary of State, and it cannot be doubted that Her
Majesty has an interest in the matter, for she is to sce that all in authority
under her do their duty, and that justice is duly administered to all
her subjects. There can be no doubt that a bond fide petition to the Queen
for the removal of a magistratc, by an aggrieved person, living under his
jurisdiction, would be a privileged communication. Her Majesty might
direct an enquiry to be made into the conduct of the magistrate, and a
memorial to the Sccretary of State, praying him to enquire, and to recom-
mend to Her Majesty that the party be removed, is equivalent to such a
petition, Her Majesty could not personally make the enquiry, and upon
a petition to the Queen, Her Majesty might direct the enquiry to be made.
(Per Lord Campbell, C. J., Harrison v. Bush, 5 Ellis and Blackstone’s re-
ports).
( 257 )

Crown, and the constitutional channel for applications to
the Crown for redress, communications honestly made to
him, being, in substance, representations by the subject to
the Sovereign, would be protected by the law, on the same
principle as that upon which the Secretary of State cannot
be sued for advice he may give to the Crown (a), that being
within his function and his duty, however he may be liable
for acts wholly illegal and beyond his functions.

The Commission was, in short, a species of court of en-
quiry (b), a kind of investigation which, for upwards of a
century, the Crown has been accustomed to institute, not
with any judicial character, but for the purpose of inform-
ing tts own conscience as to the conduct of its officers in
public and military capacities, in cases where it does not
appear that there are sufficient grounds for courts-martial
or for any criminal proceeding.

And upon this principle, it was perfectly constitutional
for the Secretary of State, upon considerations, on the one

(2) (See Irwin v. Sir George Grey, Common Bench Reports, 19 N. S. 585).
The Secretary of State held not liable for advice given to the Crown.

(2) The Commissions of officers are held at pleasure, and the Sovereign,
by his prerogative, has the right of appointing what is called a court of
enquiry (vide Sir John Mordaunt’s case, Sir John Mander’s case, and Lord
Torrington’s case —M‘Arthur on Court-martial, vol. i. p. 109, in 4th Edition).
And military law recognises all disorders and neglect, which officers and
soldiers may be guilty of, though not specified in the Articles of War
(Williams’ Military Law, 148). In cases of this kind the Commander-in-
Chief may direct a court of enquiry, instead of a court-martial ; or the
Secretary of State, a commission of enquiry, which, instead of being the
exercise of an act of severity, is very frequently an act of tenderness to the
party (Dallas, C. J., Home v. Lord Bentinck, 2 Brod. & Bing. rep. 160).
The proceeding is, therefore, in its very nature, a proceeding by the Com-
mander-in-Chief (or Secretary of State), for the purpose of obtaining that
information, which he is bound to obtain, as to the conduct of every officer
holding a commission in the Army, in furtherance of the exercise of his
public duty, upon the result of such enquiry, whether the enquiry is to
cease in the first instance, or whether it is tolead to any ulterior measure.
Ibid. The report, is in its nature, a confidential communication, in conse-
quence of a direction by him, for the information of his own conscience in
the exercise of his public duty (Ibid 163).

5
( 258 )

hand, of a demand for enquiry (a), based in a great degree
upon official and authentic statements (0), and, on the other
hand, considerations of obvious practical convenience (¢),
to advise the Crown, as he accordingly did, to institute an
enquiry, to inform its conscience as to the conduct of its
own officers, in the only way in which, practically, such an
enquiry could be instituted, namely, by means of a Royal
Commission.

As the charges against the Governor almost assumed an
official form,and appeared to bein some degree supported by
the Commander-in-Chief and the Naval Commander, and as
time was necessarily lost in communications, backwards and
forwards, between the Secretary of State and the Governor
of a colony, at such a distance, it was determined (d), in

(a) Vide ante, p. 240.

(b) Vide ante, p. 241.

(c) Already, just two months had elapsed since the declaration of martial
law, and one month since its cessation, and nearly a month was consumed
in the transmission of each despatch, so that almost two months intervened
before an answer could be received, and it was manifest that months must
interpose before the explanations of the military officers could be received.

(d) The Right Hon. Edward Cardwell, M.P., to Governor Eyre. Down-
ing Street, December 16, 1865.—‘“In former despatches respecting the
recent troubles in Jamaica, I have called your attention to many important
matters on which Her Majesty’s Government have desired to be furnished
with the fullest information. I have now tostate to you that, after taking
the case, so far as they are at present acquainted with it, into their mature
consideration, they have determined that, in order to the complete investi-
gation of the subject, and in justice to yourself and to all parties, it is right
to institute in the island a full and independent enquiry. The enquiry will
embrace the origin, nature, and circumstances of the troubles, and the
measures taken in the course of their repression, This determination has
rendered it necessary to consider in what manner the Government of Ja-
maica ought to be administered during the enquiry. That the peace of the
colony may not be disturbed by the means taken for collecting information,
and in order also that the investigation may be effective and satisfactory, it
seems to Her Majesty’s Government that the supreme authority in the
colony, military as well as civil, must for the time be vested in the officer
who is to preside over the Commission. This must evidently be an officer
who has himself borne no part in the proceedings, and whose reputation
will be a sufficient guarantee to yourself, and to all whose conduct or whose
grievances may in any way come under review, for the perfect fairnessand
( 259 )

order to a complete investigation of the subject, and in jus-
tice to the Governor and all parties, to institute, in the
island itself, a full and independent enquiry, with a view
to satisfy the Government as to the truth on these conflict-
ing official statements, and, in the meantime, as a necessary
incident of it, to suspend the Governor.

The object and scope of the enquiry were clearly and
concisely indicated by the Secretary of State in his letter (a)

impartiality of the enquiry. Ashe must combine the military with the
civil authority, he must be a soldier. Itis very desirable also, upon other
grounds, that the government should, for a time, be administered by a
soldier, in order to secure unity of view and action in the military pre-
cautions, which will be necessary to guard the colony against the possible
risk of further outbreak. For these reasons we have selected Lieutenant-
General Sir H. Storks, G.C.B., at present Governor and Commander of Her
Majesty’s forces at Malta, and have requested him to proceed at once to
Jamaica, to carry these intentions into effect. In conclusion, I will only re-
peat, on the part of Her Majesty’s Government, that while we feel it to be
our imperative duty to institute this enquiry, we desire by every means in
our power to guard against in any way prejudging the result. Our earnest
hope is that the result will be to satisfy us on the points on which it is
necessary for us to be satisfied.

(a) “The Right Hon. Edward Cardwell, M.P., to Governor Sir H. K-
Storks.—December 16, 1865.—You have reccived your temporary Com-
mission as Governor of Jamaica. It is the intention of Her Majesty’s
Government that you should proceed forthwith to that island, holding for a
time not only the office of Governor, but also the supreme military com-
mand, and the office of President of a Royal Commission, which will shortly
be appointed to enquire into the origin, nature, and circumstances of the
recent disturbances, and into the measures taken in the course of their
repression. I inclose, for your information, copies of despatches which
have been addressed to Governor Eyre since the commencement of these
troubles, in order that you may be aware what information Her Majesty's
Government have desired to receive from the Governor of Jamaica. Gover-
nor Eyre will now be relieved from any further obligation of replying to
those despatches, and the task of investigating the subject will devolve upon
you, and upon the Commission over which you will preside. The Royal
Commission and Instructions will be issued with the least possible delay.
It will be sufficient to say now that Her Majesty’s Government desire that
the enquiry shall be full, searching, and impartial. You will, I conceive,
require statutory powers to enable you to collect the necessary information,
and these powers I do not doubt the Legislature of Jamaica will readily
confer upon you. By entrusting to you these important duties, Her
Majesty’s Government evince their confidence in your ability to deal with a

s2
( 260 )

to the Head Commissioner, on the occasion of his appoint-
ment, and were declared distinctly to be to “enquire into
the origin, nature, and circumstances of the recent distur-
bance, and into the measures taken in the course of their
repression ;” the basis of the enquiry being also stated to
be the despatches already addressed to the Governor, con-
taining the demands for information required by Her
Majesty’s Government.

That is to say, the scope and object of the enquiry were
declared to be, to inform the conscience of the Crown, and,
in fact, to bea more convenient and effective and speedy
substitute for a dilatory process of enquiry by communica-
tions between the Secretary of State and the Governor at
such a distance. And the same object was declared in the
Commission (a) to the officer appointed to supersede the

subject so painful and difficult. Their first anxiety has been that security
should be restored to all, of whatever race or colour, who desire to live in
peace and orderly submission to the law, and that any further sacrifice of
life, by the renewal of these disturbances, should be effectually prevented.
Those objects attained, they desire to investigate calmly, thoroughly, and
impartially, the origin, nature, and circumstances of these lamentable
events, and with full information before them to arrive ata deliberate and a
just decision upon the whole case.

(a) The Commission recited :—“ And whereas it is alleged that great dis-
affection hath prevailed in our said island, and that sundry evil-disposed
persons have concerted the destruction of other our subjects resident therein:
And whereas grievous disturbances have broken out in our said island, and
have been suppressed, and the said disturbances and suppression have been
attended with great loss of life, and it is alleged that excessive and unlawful
severity has been used in such suppression: And whereas it greatly concerns
us that full and impartial enquiry should be made into the origin, nature,
and circumstances of the said disturbances, and with respect to the measures
adopted for the suppression of the same: And whereas it may be advisable
that the said Edward John Eyre should be present in our said island during
the whole or part of the said enquiry ; but it is requisite for the sufficiency
of the said enquiry that the powers vested in him as Governor of our said
island should not be exercised by him while so present therein, but should,
during the prosecution of the said enquiry, and for such further time as
may seem to us requisite, be vested in such other person as we may think fit.
Now know you that we have revoked and determined,” &c,
( 261 )

Governor in his office, pending the enquiry; and which
declared that it concerned the Crown that the enquiry
should be made, as it obviously did.

So also in the recitals (a) and terms of the Royal Com-
mission of Enquiry itself, it was distinctly declared, as its
ground and basis, that it concerned the Crown that the
enquiry should be made into the origin, nature, and cir-
cumstances of the disturbances, and the means adopted in
the course of the suppression, and the conduct of those
concerned either in the disturbances or repression, and

(a) “ Whereas it is alleged that great disaffection hath prevailed in our
said island, and that sundry evil-disposed persons have concerted the
destruction of other our subjects resident therein: And whereas grievous
disturbances have broken out in our said island, and have been suppressed,
and the said disturbances and suppression have been attended with great
loss of life, and it is alleged that excessive and unlawful severity has been
used in the course of such suppression: And whereas it greatly concerns
us that full and impartial enquiry should be made into the origin, nature,
and circumstances of the said disturbances, and with respect to the mea-
sures adopted in the course of their suppression: And whereas it is requi-
site, for the sufficiency of the said enquiry, that it should be conducted by
persons not having borne part in the government of our said island during
the existence of the said disturbances, nor in the suppression thereof. Now
know ye that we, reposing especial trust and confidence in the loyalty and
fidelity of you, the said Sir Henry Knight Storks, Russell Gurney, and
John Blossett Maule, have constituted and appointed you to be our Com-
missioners, for the purpose of making such inquiry as aforesaid; and wedo
authorize and require you, with all convenient dispatch, and by all lawful
ways and means, to enter upon such enquiry, and, jointly or severally, to
collect evidence in our said island respecting the origin, nature, and cir-
cumstances of the said disturbances, and respecting the means adopted in
the course of the suppression of the same, and respecting the conduct of
those concerned in such disturbances or suppression, and we do require you
to communicate to us, through one of our principal Secretaries of State, as
well as the said evidence, as any opinions which you may think fit to
express thereupon. And we do further require that you do in all things
conform to such instructions as shall be addressed to you by us through one
of our principal Secretaries of State: And we do strictly charge and com-
mand all our officers, civil and military, and all our faithful subjects, and
all others inhabiting the said island, and the territories depending thereon,
that in their several places, and according to their respective powers and
opportunities, they be aiding to you in the execution of this our commis.
sion. And for so doing, this shall be your warrant.”
( 262 )

it directed the Commission to report to the Crown the evi-
dence, and their opinions thereon.

The Commission raised most important constitutional
questions, as to the proper and legitimate scope of its
powers, whether as to enquiry or opinion.

In judging of the scope of the enquiry, it would be
necessary to consider, not merely the terms of the Commis-
sion, including its recitals (a), but also the legal or consti-
tutional principles which limit the power of the Crown to
dssue commissions of enquiry for the information of its own
conscience (b). And it is important to consider this, be-
cause upon this would depend the weight or authority
which would attach to any expression of opinion.

Looking to the preamble and the recitals, as well as to
the terms of the Commission, in the light of well-known
legal and constitutional principles, it would appear (¢) that

(a) Which may, according to well-known principles, limit the construc-
tion of the operative parts of any document, as regards general terms,
which must have some limitation, to make them legal or rational.

(8) For, according to another well-known principle, the construction of
any document depends, not merely on its terms, but on those legal princi-
ples which must limit it, so far as they affect the legal power of the party
or authority issuing it. No one could contend that the Crown has an arbi-
trary power to issue commissions, with any powers it pleases. On the con-
trary, there is nothing more jealously guarded, either by constitutional
principle or by prescription, than the power of the Crown to issue commis-
sions. Thus it was that the Petition of Right condemned commissions of
martial law in time of peace. (Vide ante, p. 10.) Thus it is that new
courts cannot be created by commission, but commissions of that kind are
limited by prescription.

(c) No one could contend that it would be competent to the Crown to
issue an extraordinary commission, in the nature of an inquisition, which
would necessarily be of the nature of a fishing inquisition, into matters
criminal. There is nothing the law so abhors, even in civil matters, as
fishing inquisitions or enquiries, in matters which are or may be subjects of
judicial decision. Hence, it is a well-settled and general principle, even of
our civil jurisprudence, whether at law or equity, that anything in the
nature of inspection, inquisition, or interrogation, into matters which may
affect civil rights, shall not be allowed until there is a legal suit, and it is
shown that the party has a right to the evidence. The phrase “ fishing
bill” is well known in equity, and the phrase “fishing interrogatories” in
( 263 )

its scope was limited to the enquiry as to facts and expres-
ELON of opinion upon matters of a general nature (ihe

“origin, nature, and circumstances of the disturbances,”
and “the measures taken in ” (that is, ordered, directed, or
authorized, or honestly taken, for and with a view to) “the
Suppression of them”), and the conduct of those engaged in
carrying out those measures, that is, measures for the sup-
pression ; and would not embrace even enquiry into, still
less expression of opinion upon, conduct or acts not really
in the suppression, though wnder colowr of it, and which
would be matters personal and criminal.

The Commission, it is conceived, was drawn (a), with
careful reference to constitutional and legal principles, so
as to include only such matters as the Crown could
lawfully make subject of enquiry, and confer only
such powers of enquiry or of opinion, as it could lawfully
confer, and so as to exclude even enquiry into, much
more expression of opinion upon, matters in their nature
criminal, as to which there ought to be no inquisition,
and which should be left to the ordinary tribunals,

Even if it were within the power of the Crown (0) to

as well known at law. The mischief of a “fishing inquisition” into mat-
ters criminal in their character, of course, would be infinitely greater, espe-
cially conducted with all the influence of the Crown.

(a) The preamble, and recital, with its terms, point carefully to such
enquiries of a general nature as the Crown may always institute; or to
those enquiries, into the conduct of its own officers and servants, in a matter
of public concern, which it might lawfully institute by means of its Secre-
tary of State; and which, if it might institute by one mode of enquiry, it
might by another more convenient and effective; and further, they appear
to be so carefully drawn as to point to their conduct in the discharge of
their duty to the Crown—that is, in doing, however erroneously, and
through error, or rashness, or wrong judgment, culpably, it might be,
though not criminally, what they lawfully might do.

(6) It would be competent, no doubt, to the Crown to issue a Commis-
gion to examine into, and report upon, the law on any subject; and on which
it might be desirable that the Crown would be informed, as, for instance, on
the Jaw as to martial law; though it does not appear that in the pre.
sent case there was any such function given to the Commissioners. But it
is conceived it would not be competent to the Crown, either to elicit and
( 264 )

grant larger powers, or to institute any other enquiries, it
is conceived that the terms of the Commission, fairly con-
strued, did not confer any larger powers, nor authorize any
further or other enquiries than above indicated; and did
not authorize the expression of opinion except upon
matters of fact, and of a general nature.

Legally, and actually, it is conceived, the scope of the
Commission was limited to matters in which the Crown
had a right to be informed by means of an inquisition (@),
and did not, as it could not, extend its scope beyond
matters in which it had such right—that is, matters general,
or matters not criminal.

The terms of the Commission, as to the first head of
enquiry, showed that its scope was far wider than an
enquiry into the conduct of those concerned. For the first
head of enquiry was, the origin, nature, and circumstances
of the disturbances. And that would be an enquiry into
the origin, nature, and circumstances of the disturbances
as matter of absolute fact, and as facts actually were ; not
as to belief, or reasonable grounds of belief, or the facts,
as they appeared to the Governor and his advisers.

And if the scope of the Commission had been judiciai,

publish facts tending to render men criminally liable, or to authorize per-
sons to put forth expressions of opinion upon such facts tending to show
such liability. For this, as it would necessarily prejudice their claim of a fair
trial, would be illegal and libellous, as held in Sir F. Burdett’s case (vide
ante, p. 240) ; and it could hardly be competent to the Crown, under ordi-
nary law, to do acts to the injury of subjects, which, if done by subjects,
would be illegal and indictable.

(a) It has already been shown that the true scope of the Commission,
and the only ground upon which it could be vindicated, was, informing the
conscience of the Crown. But that, of course, could only embrace matters
on which, by law, it hada right to be informed. It had a right to be in-
formed as to the conduct of its own officers and servants, in the discharge
of their duty to the Crown, for that could not be criminal, although it
might, to a considerable degree, short of actual criminality, be culpable,
and the Crown could censure or dismiss for mere errors of judgment, rash-
ness, want of proper care or firmness of mind, &c., which could not render

acts criminal, done in the discharge of duty. Here was ample and consti-
tutional scope of enquiry.
( 265 )

or quasi-judicial, with a view to enable the Commissioners
to pronounce upon the conduct of the Governor or military
Commanders, in the exercise of a high discretionary autho-
rity, which must mainly depend upon the spirit in which
they acted (a), they could surely have confined themselves
to evidence as to the state of things as they appeared to
the parties at the time, not entering into the actual truth,
which might or might not be known at the time.

Even if the Governor and military Commanders had
acted unlawfully, their conduct would, in judging of it, be
considered with reference to the impression of the facts on
which they acted (6), and supposing their proceedings not
wholly illegal, it would be necessary to make out that

(a) One may apply here the language of Abbott, C. J., in commenting
on the conduct of Francis Burdett, in publishing his strictures on the
acts of the magistracy and military on the occasion of what was called
“the Manchester massacre.” “The truth or falsehoods of these facts is
not the subject of enquiry here, but the spirit which actuated the
defendant at the time of the publication. To judge of that, we must
consider his situation at the time, and the means of knowledge which he
then possessed.” (The King v. Burdett, 4 B. and Ald. 328.) This seems
to be the general principle of law applicable to persons who have acted
in the exercise of a lawful authority, as for instance when a private person
is sued for a malicious prosecution, or a Justice of the Peace proceeded
against criminally for a malicious exercise of his powers. And it may
safely be assumed that the position of the Governor of the colony is, to say
the least, not less one protected by the law, so long as he acts in an honest
spirit.

(b) It was even of a convicted libeller, that it was laid down, that
as he acted upon information conveyed to him, his conduct was to be
judged upon that view, without reference to the actual truth or falsehood
of the information. The libel does not assume to proceed on facts known
to the defendant, but only on information which he had received upon the
subject, and it would not be proper to receive evidence that there was
no foundation for these accounts which were given in the newspapers,
and upon which the defendant acted. This would not constitute an
-aggravation of the offence, and the contrary ought not to operate in aggra-
vation of it. (Abbott, C. J., King v. Burdett,4 B., and Ald. 326). So
Lord Mansfield applied this principle to the very subject of martial
Jaw. The enquiry, he said, would be, how the heart stood (vide ante, p. 75).
So, Lord Chief-Justice Tindal, “whatever is done by him honestly in the
execution of the object” (vide ante, p. 28).
( 266 )

they acted wilfully and contrary to their knowledge ; but
if they acted in the exercise of a lawful authority, a multo
fortiori, their conduct would be rightly judged by their
knowledge or means of knowledge at the time.

Moreover, although as regarded the first head of the en-
quiry, the origin, nature, and circumstances of the disturb-
ances, that would involve whether they were rebellious,
which would be an element of judgment, on the question
of declaring martial law, it would only be one; and as to
others, such as the strength and disparity of military force,
&c., they would be matters mainly military, on which a
Commission (a), mainly composed of civilians, would hardly
be expected to pronounce an opinion.

The composition of the Commission, which was rather
legal than military in its character, the legal element pre-
ponderating in the proportion of two to one (8), while it
might be effective as to the eliciting of facts by strict legal
evidence, was obviously unfavourable, so far as regarded the
expression of opinion, or the foundation of judgment upon
matters for the most part military.

The object of the Commission being to inform the con-
science of the Crown, it was probably considered, that its

(a) The Commission was composed of one military man, a Colonial Go-
vernor, and two lawyers, whose assistance would be invaluable in eliciting
facts by the examination of witnesses, testing their evidence, &c. But this
was hardly the composition of a Commission designed to pronounce an
opinion upon matters purely or mainly military.

(b) The officers engaged had to act on such information as they could get,
and on such judgment as they could form at the moment, amidst all the
excitement and emergency of a rebellion. They were only allowed to offer
such evidence as was strictly legal, and as the commissioners formed their
judgment upon the evidence they took, it follows that they judged by legal
evidence men who had had to act without it, And further, in the forma-
tion of any judgment they might come to, upon the acts of the officers, or
the military, they only had the advantage of the assistance of one officer in
the Commission ; while, on the other hand, his opinion would be, most
probably, influenced by theirs, and the views of lawyers, on military mat-
ters, according to the judgment of the House of Lords in the great case of
Johnstone v. Sutton, 1 T. R., would be worth nothing.
( 267 )

main purpose was the enquiry into facts, and that the expres-
sion of opinion, if any, was to be only upon general matters,
and as to the effect or result of facts (a), not in the nature
of judicial opinion, and that, therefore, it was that the
legal element was allowed to preponderate in the composi-
tion of the Commission. For, it must be manifest that to
the extent to which the legal element was introduced, the
value of their mere opinion upon matters, in their nature
so largely military, must be diminished.

It might, indeed, be doubted how far the constitution of
the Commission, coupled with its composition, would autho-
rize the expression of any opinion (6) upon the merits of
the conduct of those concerned, so far as it at all depended
upon military considerations (c).

It seems clear that, upon constitutional principles, the
scope of such an enquiry could only be facts, to inform the
conscience of the Crown, and could not embrace the pro-

(a) There would be ample scope for the expression of opinion, as to the
result of a large body of evidence on any general matters, as, for instance,
the character of the disturbances, whether rebellious or not, the existence
of any organization, or of any causes of disaffection, and the like. This
would be necessary in their report, to gather up, so to speak, an immense
mass of facts into some general statement that, in their opinion, there was
or was not such and such a state of things. This would be very different,
it is manifest, from the expression of a judicial, or quasi judicial opinion, on
the propriety of the acts of men.

(6) The Commission, no doubt, authorized the Commissioners to expresa
opinions; but then that must be understood to mean on matters on which
they might, properly, with reference to their own composition and their
constitutional function, express opinions; as, upon matters of a nature
general rather than personal, the nature and origin of the disturbances,
whether they were of a rebellious character, &c. But if they went
beyond that, for instance, as to the necessity for martial law, or for its con-
tinuance, or the measures taken, &c., they would necessarily trench upon
matters mainly or purely military, in which the opinion of a tribunal
mostly lay, and not military, would, to say the least, be sufficiently un-
favourable, as almost certain to be influenced by the traditional ideas and
prejudices of lawyers against proceedings arbitrary and military.

(c) That is, on so much as could be obtained by legal evidence and
formal proof.
( 268 )

nouncing of any opinion upon the conduct of those con-
cerned.

It may, it is conceived, be laid down as a matter of con-
stitutional principle, that the.Crown could not delegate its
supreme power of censure or approval of its officers to any
but its sworn, constitutional, responsible adviser, the Secre-
tary of State (a); nor could the Secretary of State consti-
tutionally delegate his high function of advising the Crown
as to such censure or approval, however he might, for con-
venience, delegate his power of, or rather use any legal
means for, obtaining information.

At all events, it seems that it did not come within the
scope of the Commission even to enquire into, much less to
pronounce upon, the conduct of the Governor in declaring
martial law, for that would not depend on the result of the
first head of enquiry, the origin, nature, and circumstances
of the disturbances, as absolute fact ; but upon appearances,
as they presented themselves to his mind at the time, and
on the assent and concurrence of his Council, which would
be a high governmental act. Nor would it come strictly
within the second head of enquiry, the measures taken in
suppression of the disturbances, and the conduct of those
engaged in the suppression (6).

The Secretary of State was perfectly aware that there

(a) Who would be responsible to Parliament for any error in his censure
or approval, the consequences of which might be most serious, not only to
the individuals concerned, but to the nation at large. For suppose that,
upon wrong notions as to the law or the facts, a censure was pronounced
upon a Governor or military Commander who, by his courage and prompti
tude had preserved a valuable colony to the Crown, and saved its loyai
population from massacre, no one can doubt that a very heavy responsi-
bility would rest upon the minister who so advised the Crown; and it
would surely be contrary to constitutional principle that he should be able
to shift off this responsibility upon others, not responsible to Parliament.

(b) The whole scope of the Commission seemed to imply that this
alluded to the active measures taken ; and even if the act of the Governor
in council, in declaring martial law, was a subject of enquiry, it is doubtful
whether it would warrant the expression of an opinion upon it.
( 269 )

were “difficulties inseparable from such an enquiry” (a),
some of which he endeavoured to obviate; but others of
which, as he implied, were incurable ; and others, perhaps,
were not foreseen at the time the Commission was issued.
These difficulties were fundamental, arising from the very
scope and nature of the enquiry into the conduct of a
Governor and military Commanders in the discharge of a
public duty in a distant dependency.

One difficulty was in this, that, as it was deemed impossi-
ble to conduct the enquiry satisfactorily elsewhere than in
the colony itself, and equally impossible (6) to conduct it

(a) “It will, doubtless, be necessary that for at least a portion, if not for
the whole of the time occupied by the enquiry, you should be present in the
island. I inclose you a copy of the Commission given to Sir H. Storks,
from which you will learn the mode in which we have endeavoured to
overcome the dificulties inseparable from the institution of such an
inquiry.” (Despatch of Mr. Secretary Cardwell to Governor Eyre.)
It is implied in this, that the Governor was expected to remain in the
island, to submit to examination as to the transactions in which he had
taken part ; and, of course, if he gave any, he could hardly stop short of the
fullest admissions and disclosures. And of course also, this would equally
apply to the General in command, and the military officers engaged; and no
doubt the Crown had a right, by means of a Commission, to ask orally for
explanations which it might demand, and, indeed, had already demanded
in writing. It was a very different thing, however, to receive evidence
against them of crimes, and to do this in public, and the Secretary of State
particularly alluded to one of the anticipated inconveniences of this. But
there were others he could hardly anticipate.

(6) This was the reason for the passing of the statute, 42 Geo. III. (vide
ante), for the trial, in this country, of a Governor or other officer, accused
for any offence committed in his official capacity. This principle was ap-
plied in the suspension of the Governor, and the appointment of the
President of the Commission as acting Governor for the Commission (Parl.
Pap.) Alluding to the difficulty arising from the danger above mentioned,
the Secretary of State, in his despatch to the President, wrote thus, “It
has been represented to Her Majesty’s Government, that any public enquiry
into the state of the island, unless conducted with extreme caution, would
have a tendency to unsettle the minds of the negroes. Her Majesty’s Go-
vernment have not been unmindful of this consideration; but by placing
the supreme power of the colony, military as well as civil, in your hands,
and making you at the same time president of the Commission, Her Ma.
jesty's Government feel that they have taken the best security against any
guch danger, without compromising the prospect of a full and impartial in-
( 270 )

there while the Governor, whose conduct was impugned,
remained in office, it was necessary temporarily to suspend
him, and this involved the appearance of prejudging his
case, even before hearing the explanation or answer he
might have to offer to the demands for explanation, trans-
mitted by the Secretary of State. And this, it was feared,
not without reason, would seem like an encouragement to
rebellion, or discouragement to similar measures of re-
pression on any future occasion.

There was, however, another overwhelming and insuper-
able difficulty necessarily incident to any such enquiry (a),
the difficulty of getting any reliable evidence, beyond the
statements of the officers and those engaged in the sup-
pression. For, it is obvious that those who had been impli-
cated in the rebellion, and who themselves had suffered, or
seen their relations and friends suffer, in the measures of
suppression, were not reliable witnesses as to the severity of
those measures, or the conduct of those engaged in them.
And this difficulty was abundantly realized in the present
instance.

This latter difficulty, however, related principally to the
second head of the enquiry, the measures taken in the
suppression, and the conduct of those engaged in it. There
was not so much difficulty as regarded the first head of
the enquiry, namely, an enquiry into the origin, nature,
and circumstances of the disturbances, that is, whether re-
bellious or not, which was to be an enquiry into actual facts,
in order to inform the Crown as to measures to be pur-
sued (6), and not merely as to the conduct of its officers.

vestigation.” As, however, the explanations and answers of the officers had
not been received, the duty would devolve upon the Commissioners, of de-
termining whether there was any necessity for any further investigation,
than would be afforded in those statements themselves.

(a) This difficulty was felt and experienced in the Ceylon case, in which
the enquiry took place befere a committee of the House of Commons, and
the Government declined either to send 4 commission to the island, or
bring over witnesses from the colony. (See Debates, Feb. 6, 1850.)

(6) Various measures as to the future government of the colony, and
( 271 )

The enquiry into the origin of the disturbances, neces-
sarily and rightly went back into remote as well as more
immediate causes (a), because it is obvious that, the more
deep-seated are the causes and feelings which have given
rise to a rebellion, the more dangerous is it likely to be,
the more likely to spread and diffuse itself, quite apart
from actual organization or conspiracy, by the force of those
common feelings and causes ; and, hence the enquiry elicited
allusions to a former insurrection of the same class of
the population, some thirty years previously, which had
been attended with disastrous results, and the memory and
admiration of which had, it appeared, been carefully kept
up among the people.

more stringent measures for repression of dangerous practices, drilling,
arming, &c., were before the Crown at the time the Commission issued,
and it was manifest that these measures would involve considerations much
larger than the conduct of the Governor and the military Commanders.
Then there was the question as to the bill of indemnity (vde ante),

(a) There had been an insurrection of the negroes in 1832, at the time
of emancipation ; and there have been always those who had some sym-
pathy with it. ‘The parish of St. James was the principal seat of the re-
bellion (falsely so called), shortly before emancipation” (Six months in the
West Indies, by J. J. Gurney, published 1840). The excellent author
throughout, spoke of “ignorant black teachers, of whom there were many in
the island ” (p. 161), and he everywhere pointed out the question of land and
rent, as the great cause of discontent among the peasantry. A respectable
witness went back, in his evidence, to this period, and stated that he noticed
that there was a book circulated, holding up the persons suffering in the
late rebellion (1832) as martyrs—“ I found one of the books in some house—
that was in 1864—they were said to be meritorious persons, and held up to
admiration.’ He also heard that there was drilling going on, and concluded
that sooner or later an outbreak would take place. He came to that con-
clusion, not only from the drilling, but from the teaching which they were
receiving (Hy. of Rev. B. Key). This was confirmed by evidence, even of
various black preachers. A black minister, the Rev. 8. R. Ward, who
described himself as an independent Baptist, and resides in St. David’s, a
parish adjoining St. Thomas in the East, said-that since September he had
found a change in the demeanour of the peasantry. Witness was pained to
find that G. W.Gordon, a great friend of his, was going about the district
and making speeches, tending to unsettle the relations between master and
servant, and to produce discontent among the peasantry. So the Rey. Mr.
Beckwith and others gave similar evidence.
( 272 )

There was abundant evidence that there was diffused
among the negro population deep-rooted impressions and
ideas as to emancipation, especially as to its involving
their right to the back or waste lands, without payment
of rent (a), and there was also ample evidence to. connect
it with the present rebellion.

That the real origin of the disturbances was agrarian
discontent, and the desire among the peasantry for the
acquisition of land, and a notion which had been infused
into their minds that emancipation involved their title
to the lands, was proved by the entire evidence as to the
language of the ringleaders (6), and in the opinion of the
most intelligent and impartial persons who heard the
whole of the evidence, it was the impression it con-
veyed (c).

(a) The whole tendency of Mr. Gurney’s book, written a few years after
the former insurrection, and a quarter of a century before the present one,
was to show that the condition of the black population, and their content
or discontent, turned upon the possession of land and the payment of rent.
And the evidence was overwhelming, that these matters lay at the root
of the present rebellion. It is hardly necessary to point out how deeply-
rooted and widely-diffused such causes of discontent must be. And
they were closely connected with the seat and stronghold of this rebellion,
Stoney Gut. For Mr. J. M. Anderson, immigration agent and owner
of the Middleton estate, adjoining Stoney Gut, confirmed the statements
of other witnesses as to the impression among the negroes that liberty of
person carried with it liberty of land, and that the Queen had given them
the lands when she gave them freedom.

(6) For instance, it was proved that one of them refused to pay rent—
and said that white buckra had no right to get pay for back land—and
similar language was proved to have been used by other of the ring-
leaders.

(c) For instance, the correspondent of the Times, who heard all the
evidence, wrote that its result was overwhelming proof of the agrarian
character of the outbreak. “The back lands,” he said, “‘was the chief
theme in all the seditious addresses by the Bogles to their followers,
and the chief lever used in stirring up the peasantry to revolt. The
peasantry of Jamaica were told by mischievous demagogues that they had
a right to “the back lands ;” that the Queen had directed these lands to
be distributed among the people, but her generous intentions had been
diverted by malevolent rulers in the island; that freedom was hardly:
freedom, if the freedman was called on to pay rent from which the slave
( 273 )

Under this head of the enquiry, evidence was received as
to the more immediate causes of the disturbances, and as to
their “nature,” which would appear partly from their origin
and partly from their circumstances ; and as to these cir-
cumstances, which of course would tend to show their
character. And evidence was accordingly received to show
that the origin of the disturbances was seditious agitation,
and that their character was that of rebellion (a).

As to this, there was a great body of evidence as to
seditious meetings and publications, all under the auspices
of particular persons, believed to have been the real
and active heads of the rebellion; by one of whom the
blacks were told to rise as they had done at Hayti, and
massacre the whites, in order to get their lands (6).

Evidence was, further, given that these seditious pub-
lications had been carefully. circulated by the leaders in

was exempt; and that the English people and Parliament, in emancipating
the negro, meant to have given him the land on which he could support
himself.”

(a) According to the weight of the evidence on the subject, the causes
of the rebellion had gone back many months, if not years. There was a
good deal of evidence as to different causes of disaffection, but all agreed
in that. The Governor, so long ago as April—the rebellion being in
October—had written to the Secretary of State a despatch, containing a
statement of grievances from the parish of St. Ann’s; the answer of the
Secretary of State to which (vide ante p.114) had been made much use of,
as ground for disaffection. But the weight of the evidence went to show
that the real root of the rebellion was an impression among the blacks
that they were entitled to the back or waste lands rent-free. Thus the
rebellion had its rise in that most formidable of all sources of disaffection—
agrarian discontent. And in August an insurrection, in another part of
this island, was so imminent, that it was only prevented by the presence of
men-of-war. (Evidence of Governor Eyre.)

(b) That is Gordon, and Bogle, and M‘Laren, and several others, but
chiefly the first two ; both of whom had been very active in inciting the
blacks in all parts of the island, especially the district in which the rebel-
lion broke out; and at one of the meetings, Gordon was sworn to have told
the blacks to do as they had done in Hayti (Ev. of Peart and Hunter), and
at others he used similar language. (Ev. on his trial.) He had actually been
remonstrated with on the tendency of this language to produce a rebellion,
and had persisted.

T
( 274 )

the rebellion (a), especially in the district in which it broke
out ; and a series of meetings were also held, at which they
made seditious speeches, sometimes directly inciting to
insurrection and massacre.

There was abundant evidence (6) that there had been a

(a) Thus, there was at the end of July the Proclamation on “The State
of the Island ” (wide ante p. 114), in which the “ poor people of St Ann’s—
starving people of St. Ann’s—naked people of St. Ann’s,” were called on
to “speak out and to act too.” They were told, in this violent address,
“The Government have taxed you, in order to defend your own rights
against the enormities of an unscrupulous and oppressive foreigner, Mr.
Custos Ketelholdt.” They were told, “You have been dared in this pro-
voking act, and it is sufficient to extinguish your long patience.” Then, in
August, a printed placard, addressed to the people of St. Ann’s at Morant
Bay, was posted on a cotton tree opposite Chisholm’s house—it was put
over another placard headed the “ Queen’s advice,” and signed “ EB. Card-
well.” This was on the high road. (Ev. of Mudie.) In August there
was a meeting at Vere, at which Gordon said, “ I, George William Gordon, say
that they can’t pull your houses down; why don’t you do as Hayti does? they
eall you bad now, but then they will call you worse.” This was proved
by those who took notes of Gordon’s lecture. It was proved by a printer to
whom the original placard, headed “State of the Island,” was handed for
identification, that it was put in type by Gordon’s directions; he told him
to send fifty copies to St. Ann’s Bay, two to Morant Bay, one to Paul
Bogle, one to Chisholm, and one to Bath. This was done. (Ev. of Sharp
and Gough.) Mr. Westmorland stated that the Government had received
accounts of various public mectings held and presided over by G. W. Gordon,
at which resolutions against the Government were passed—these meetings
were held at Vere, St. Thomas in the East, St. James, St. Ann’s, and
Kingston. The speeches made at the last-mentioned place were not
reported to the Government till subsequently, when the Government be-
came aware of their seditious nature. He believed that those speeches
were of so violent and bad a character, that they could not be published in
the newspapers—the Government knew that they were attended by persons
who were looked upon as political agitators and demagogues, but did not
know the nature of the speeches made at the time.

(’) Thus in July there was Gordon’s seditious proclamation, on the state
of the island, the circulation of which he had carefully kept up, for in
August a placard, containing one of its most seditious passages, was found
posted up opposite to the house of an agent of his, a ringleader, one
Chisholm. Then in August, Gordon uttered sentiments at a meeting at
Vere, highly seditious. He said, addressing the negroes :—“ Do as the
Haytiens have done. They call you bad now, but they will call you worse
then.” Then there was the following in a letter, dated September 11, 1865,
( 2-3

system of agitation calculated to incite the blacks to rise
in rebellion, and every possible effort used to make them
believe themselves oppressed, and to excite their feelings
of animosity to the utmost against the white race. And
that the leaders perfectly well knew that the course they
were taking must lead to anarchy and rebellion (a), and
were warned of it, and persisted.

There was a great deal of evidence, moreover, that
after these seditious meetings there had arisen, under the
auspices of the men who were the main promoters of them,
in the districts where the rebellion broke out, if not in
other districts also, those more unequivocal and formid-
able signs of a rebellion, secret arming, drilling, and
administration of unlawful oaths, reports of which had
come to the authorities (6), with rumours that the people

from one friend of histo another, “ I wrote the feeble editorial that appears
to second the noble exertions of the Vere people. WhatI desire ig to
shield you and them from the charge of anarchy and tumult that ina
short time must follow these powerful demonstrations, (Evidence of Mr.
Eyre.)

(a) Thus a respectable witness (Rev. Mr. Beckwith) said, ‘he had a
conversation with G. W. Gordon about the system of agitation ; and
stated it was his opinion that it was calculated to create a spirit of disaffec-
tion among the people, and raise up a feeling against them, which had
apparently laid for some time dormant. He stated that they should persist
tn the movement, and agitate in all the parishes as the people must have
redress; witness made some other observations, and he said, ‘we must
have it some way or other; this is 4 great movement, and if the people
did not get redress, there would be a revolution in six months;’ after the
outbreak I made this circumstance known to the Custos of Kingston, and to
the police magistrate, after he was taken into custody and before his trial.”

(6) Vide the evidence of Bothwell, G. Thomas, Feller, Foster, and
Osborne, so also the evidence of the Rev. W. Key, so the evidence of
the Hon. Mr. Westmorland, who stated that in fact he had heard of
drilling. The Rev. Mr. Ward (vide ante, p. 271), had mentioned similar
matters to the authorities, so had the Rev. Mr. Beckwith. Mr. Westmor-
land stated, “In the month of July it was reported to the Government
that private drillings were going on in Kingston by two black companies
of so-called volunteers. In the latter end of August, I was travelling
through the parish of Trelawny, and it was reported to me that the people,
who usually took three weeks for August holidays, took four on this
occasion ; and my overseer informed me, they said that they were waiting

T2
( 276 )

were expecting a movement to commence in the district
where, in fact, the rebellion broke out.

The evidence also embraced information (a), furnished,
indeed, to the Governor after the suspension of martial Jaw,
but showing the state of things, as to drilling, arming, &c.,
which existed previously, and tending to confirm the judg-
ment he had formed; partly upon the rumours, no doubt,
arising, in a great degree from the real facts.

And these statements were confirmed (0) before the Com-

for the Lord to come from St. Thomas in the Fast. Another of my
overseers reported to me that they said, they were waiting for their saviours
from the other districts who were coming there.”

(a} Deposition of Coles, made 27th Nov. 1865, a fortnight after the sus-
pension of martial law. He stated: ‘‘ Since the rebellion in St. Thomas in
the East, one Archibald M‘Leish, in the district of Roses Valley, and William
Chambers and Joe Levy, of Evergreen District, have been and still are in
the habit of holding midnight meetings, from 6 o’clock p.m. to 6 o’clock
a.m., at the house of William Chambers, when one Joe Levy kept guard.
They asked me if I was a soldier, and whether I would join and drill them;
I refused, on which they threatened to report me. I reclined outside the
house, and heard William Chambers say they must make haste and get
powder and guns, and those that had no guns must bring machettes; that
they must go down and burn Mr. Coke’s works at Oxford and shoot him ;
that he would keep his Bible in his hand, and when the buckras took him,
he would swear that it was the Bible he was reading.” He also stated “ that
at the house of Archibald M’Leish, in the district. of Roses Valley, where
I went to attend a meeting, supposing it to be a prayer-meeting, I found
the door shut, and sitting down outside I heard Archibald M’Leish holding
a meeting, and saying that he was going to town to buy powder and arms,
to bring them down and hide them at a place called Thatch Walk ; that
they must aJl throw up to buy the powder—they wanted a puncheon; that
they would rise the first day of Christmas, and shoot all the buckras; that
they would come down when William Chambers and his party came from
Evergreen, and meet together at a place called Bell Hill, in front of Ox-
ford-house. I also saw a lot of bows and arrows in a heap in a corner of
the house, and I heard him say when they had killed the buckras they
would all go to the shops and drink and make merry. I saw there at
Archibald M‘Leish’s house, William Coley and his wife, George Maitland
and his wife, many whites, and very many others who I could not recognize,
as directly I refused to join them, they rushed upon me with sticks, and
drove me down the hill.

(6) Thus, for instance, one Coke said that at the end of October, a de-
serter from the West India Regiment, one William Coley, laid an informa-
tion before him, and stated that he had been asked by people in the district
( 277 )

missioners, not only by the oral evidence of the persons
who had made them, but by the evidence of respectable
persons, to whom the witnesses had stated the same facts
at the time, and further, by evidence of actual facts proved
aliunde ; so that the belief on which the Governor had
acted, as to the rebellious and dangerous character of the
disturbances, was established, in the strongest manner, by a
three-fold confirmation.

Evidence was likewise given that the character of the
black population (a) was such, from its ignorance and cre-
dulity and excitability, that agitation and disaffection were
calculated to work far more serious mischief and cause far
more imminent peril, than might result in a colder or more
reasonable race ; and that, in the opinion of those who were
best acquainted with them, from long residence in the
island, in such a state of disaffection, a spark would cause
a flame of insurrection through the island, even without
any premeditation or actual combination.

to drill them; that when he refused they put him outside the house, and
that then, listening to what passed, he heard the people say that they must
make haste and buy powder, take out these guns and machettes, and be
ready to join another body of rebels. Coley said the people held these
meetings four times a week, from six in the evening until six in the morn-
ing, and he offered to take Mr. Coke to one of them, but that gentleman
did not think it safe to go. Some thirteen or fourteen men were afterwards
apprehended, who acknowledged that they had held these meetings, in the
very house which Coley had described ; but they declared, of course, that
they meant nothing wrong, and asked Mr. Coke not to believe what Coley
had said about their object. (See also the evidence of Mr. Vickers.)

(a) (Evidence of Mr. Salmon.) He believed that the mass of the people
were diaaffected then, and that, at the time of the outbreak in the east, a
spark in St. James's, would have caused the spread of the rebellion allthrough
the west of the island, “They are,” he said, “an extraordinary people, and
their credulity renders them apt instruments for the agitation.” See the
instances he gives. See also the evidence of Dr. M‘Cattie, who stated that,
though this had no organization,a spark would have set the whole parish
jn a blaze. See also the evidence of Mr. Woolett, who describes them
as imaginative and excitable, easily wrought upon, “like gunpowder with
a spark,” and prepared to rise if there had been a disturbance. And
then it did not much matter whether the witnesses had seen among the
negroes combination, or organization with a view to rebel.
( 278 y

There was a great deal of positive evidence (a) that the
negroes had been overheard talking among themselves of a
war which was to break out and go round the island.

Then there was evidence (6) of an actual organization,
within the district in which the rebellion broke out, headed
by those who were the leaders in it.

And even the very attempts made to ascribe the organi-
zation which, in point of fact, was set on foot for some
other object than that of rebellion, not only failed to do so,
but tended to show that the object was the very one,
which, by an overwhelming weight of evidence, was shown
to have been the real moving cause of the rebellion,
viz., agrarian discontent, and a passion for the acquisition
of land (¢).

(a) Statement of Samuel Hunter, servant of the Hon. 8S. W. Mais.—
“Told his master he heard at Orange Valley (Mr. Kerr’s place in Trelawny),
about seven miles from Falmouth, on Friday and Saturday, 6th and 7th
October, people talking, saying ‘a war would break out in about three
weeks’ time, to begin at Montego Bay and go round the island; then
buckra would see hell.’ This was quite confirmed by the evidence of many
witnesses.

(6) Evidence of Nairne, Wheatley, and many others. See also the evidence
of the Rev. Mr. Key, Rev. Mr. Beckwith, and Rev. Mr. Ward, which he
said he had communicated to the authorities. The statement of Nairne was
communicated to Mr. Westmorland, and so m many other instances.
Further, there was the document already mentioned (vide ante p. 163),regard-
ing the active leaders, and then there was a still more important document
afterwards discovered. Among Mr. Gordon’s papers at Cherry Garden,
(in the proclaimed district), was found a list in his hand containing about
150 signatures, among which were those of Gordon himself, the Bogles,
Bowie, and many who were afterwards personally engaged in the massacre.
There wasnothing on the face of it to explain the object for which these signa-
tures were obtained, (Ev. of Dunker.) One of the persons by whom it
was signed, Mr. Warren, a native Baptist preacher (of the same sect as
Bogle) of Morant Bay, was called to explain this object, and his statement
was that in 1863 a meeting was held at Gordon’s house in Morant Bay,
with a view to form “an anti-slavery society ” in connection with the
society of that name in England, and that the paper found at Chery
Garden was a list of persons who had joined the society. Mr. Gordon
was present, and Chisholm acted as the agent.

(c) For the explanation was, that it was an Anti-Slavery Society. Now
as there are no longer slaves either in Jamaica or in any other part of the
( 279 )

And it was proved further by several witnesses (a),
that the leaders had distinctly told them that the
blacks were to kill the white men, in order to get the back

British dominions, that abstract object was not likely to enlist the sympa-
thies of men who, as the event proved, were ripe for rebellion and for
massacre. But, on the other hand, there wasa vast deal of evidence to
show that in the minds of the blacks the abolition of slavery involved the
acquisition of land, and that the great object and moving cause of the
rebellion would be the acquisition of the back or waste lands. So that,
if the explanation was true, it did no good. But there were other reasons
to consider it not satisfactory. The witness stated (as the Recorder pointed
out) that the paper he signed had a preface, as an innocent subscription
would certainly have, and as a guilty one as certainly would not have, and
this paper had none—but the witness had signed other papers.

(a) Thus, Nathanial Lake stated that “he took Bouie to Morant Bay
on a day after the Court-house was burned ; he was in custody, and said,
‘Oh God, Mr. Gordon put us right out of our way.’ I said what? He
said, ‘Gordon told us to destroy white and coloured men, but those that
join them not to be destroyed ;° I said tell it to high quarters at Morant
Bay; he said, what is the use to speak, my son, as I will be hanged.”
George Lake said :—“ On the Friday night before the Wednesday of the out-
break, Paul Bogle’s son came to me and called me, and I went to Paul
Bogle at Torrington—I found Bogle with some other men—it was ina
meeting house—he said to me that‘a war was expected in St. Thomas
in the East, that the people must be a friend of his alone; and that Mr.
George William Gordon is their back, and several other gentlemen knew
about it,—that’s what he told me; there were several persons there, and I
saw him swear them—he swore me—and after I was sworn, he told me
that there was going to be a war in St. Thomas in the Hast, and that
Mr. Gordon was his back, and will know in what way to supply the people
with gunpowder. So George Thomas Bogle sent a man to say that he
wanted to see all the young men from Nuits River, and I went to the
meeting—he called me, and said the meeting was a private meeting if we
would like to join—Bogle and M‘Laren asked this; we said, yes; because
he said that it was for the benefit of all the blacks; M‘Laren put my
name ,down, and after that I kissed the book—Bogle told us ‘that the
meeting is held for Mr. Gordon,’ and that Mr. Gordon said ‘they were
working for nothing, and he had written home to England about it.’
The meeting was held at night, and lasted for two hours; I was there all
the time—he told us that the back lands were belonging to us, but that
the white people took it away, and that Mr. Gordon had told him so ; he
gaid that each place must have fifty men, with a captain to each, to join
the volunteers, the same as the white man; and that he was going to
gee the man get justice at his trial at the Court-house, for white man
( 280 )

lands, and there was to be what they called “a war,”
shewing that the negroes themselves knew perfectly well
that it wasa war which they were about to wage—a war
against the Crown and its peaceful subjects.

There was positive evidence (a), confirmed by a great
deal of circumstantial evidence, that the attacks on the
police in the district had been deliberately arranged by the
leaders of the rebellion, and this, only a week before
the outbreak; and that all that followed was in conse-
quence of these deliberate arrangements.

And this evidence was carried down to the time and cir-
cumstances of the attacks upon police and the magistrates

took too much advantage of them.” A Captain of Maroons stated that
about three or four weeks before the outbreak, Paul Bogle came to him,
and Bouie was with him, and said that ‘“ he wanted to beat all brown and
white people off the island, and find a place to secure Mr. Gordon.’
Bogle said that he was going to the Court-house to have a battle—that
he wanted to ask the Maroons not to interfere, but that he was afraid of
them—he said it was the Morant Bay Court-house.

(a) Thus George Thomas, the witness already referred to, whose evidence
was produced on the trial of Gordon, stated that he attended a Bogle meeting
at Torrington a week before the outbreak, in a house near the the Baptist
chapel. Paul Bogle and M‘Laren were there with ‘plenty of people.”
Bogle, addressing the people, said this meeting was held for Gordon, or
by his wish; Gordon said that the blacks worked for nothing at all; that
they ought to have 4s. a day, and that the back lands belonged to the
black people, but had been taken possession of by the white ladies and
gentlemen. Bogle added that the black people in each place must form
themselves into bands of fifty men, with a captain to each, and that they
should have volunteers, as the white men had. He urged them to go to
the bay on Saturday and see a man tried there, so that he might get
justice. His name was Francis Miller, of Stoney Gut, and Bogle said he
had joined the “gang.” Thomas got a message on Monday night, that
he must go to Stoney Gut; and on reaching there at midnight he found
the chapel full, and bodies of men kept marching in until daybreak. Word
was passed that the police were coming, and they all remained silent until
Bogle summoned them, when the police were surrounded and taken pri-
soners. ‘Thomas was drilled along with other negroes, and went down to
the bay with Bogle’s “gang” on Wednesday. Gordon could hardly have
been ignorant of all |this. In the outbreak at Morant Bay, Thomas
received a wound in the shoulder, and while in the hospital he made a
deposition, used against Gordon at the court-martial.
( 281 )

which formed the outbreak of the rebellion (a), and went
fully to support the accounts received of it at the time,
that they were organized and deliberate attacks, by large
bodies of armed negroes, previously organized, armed, and
assembled for the purpose of such attacks, and that they
had all the character of acts of armed rebellion.

The evidence of eye-witnesses as to circumstances of the
original disturbances (b), showed, beyond a doubt, that they
had all the character of a deliberate armed rebellion, for
they showed that not only were the outrages deliberate, but
that, in pursuance of the design, the rebels went about
forcibly seizing arms, and actually stormed a police-station,
and supplied themselves with fire-arms therefrom, before
attacking the magistracy and volunteers.

There was not only positive but undoubted proof, in the

(a) Evidence of Cresser. He was seized by a body of 200 or 300 armed men,
and taken to Stoney Gut, the seat of the rebellion, and the residence of the
active ringleaders. Here he saw the ringleaders and other men, go along-
side the chapel with men in aline ; one was drilling them with the words
“right shoulder arm, and march ;” he marched them round the chapel ;
about thirty were drilled. Whilst they were doing that, Craddock (one of
the active leaders) said, “that the country was theirs, and they were
getting it, they must hold on, they were long trodden under the grass.
The police gave similar evidence as to what they had seen, when seized and
imprisoned by the ringleaders, just prior to the actual outbreak, and what
they saw and heard they had reported to the ‘ Custos.’” One of them stated,
“When I saw them drilling, they were arrayed three by three. They bran-
dished their cutlasses. Colonel Bouie had acutlass, which he brandisheds
Colonel Bouie said, ‘Men, turn out to drill, and drill quickly.’ That was
before they went out. Was not near the drill field, and could not hear the
orders given. The companies were marched out by hundreds. After one
hundred was finished, another came out; three companies went out.
They were headed by a fife and drum.” (Evidence of Fuller, Foster,
Osborn, and Bothwell).

(6) Thus, it was sworn that a body of them went to a private house, on
the morning of the day of the massacre, and demanded guns, with threats
of murder (Ev. of Cresser), and that later in the day, they stormed the
police-station, and took all the fire-arms they could find (Ev. of Albergu
and Anna), and that they swore that they would kill every white and brown
man, and then they attacked the Court-house. That this amounted to a
levying of war against the Crown (vide anie, p. 13).
( 282 )

shape of written documents (a), of such- close association
between the secret and the active leaders of the rebellion,
in seditious meetings, &c., as to raise the strongest pre-
sumption that, as the latter had for months been engaged
in secret arming and drilling, the former must have known
of it, and been privy to it, and there was the most probable
proof (6), that he was in actual complicity, not only in the
scheme of the rebellion, but the massacre.

The evidence taken as to the circumstances of the original
outbreak, clearly showed (c), out of the language used by
the active leader himself, that the massacre was not only
deliberate and previously designed, but that it was the out-
break of an insurrection, of which the object was the
massacre of all the white men. And so of the subsequent
outrages elsewhere.

That the massacre, which was the outbreak of the rebel-

(a) Letters were put in showing the closest association between him and
Bogle, the leader in the massacre. The following is from Paul Bogle to
Mr. Gordon:—“ Dear Sir,—Provide more things for me to vote upon for
the year coming ; get the horse for me to ride on business. We expect a
meeting, and your attendance will be required. Paul Bogle.” These
meetings were beyond all doubt seditious.

(b) It was proved that his agent (Laurence) was privy to the plan of the
massacre, and informed a friend of it before it occurred (Ev. of Major).
It was proved that he himself was privy to it, for it was proved out of his
own mouth that he warned one of the victims not to go (Ev. of W. Lee).
The witness said, “I told him of the occurrence; I said that the Baron
had been murdered, and that the news came down that the people had
killed him ; I said, ‘ George, I am afraid that your agitation in St. Thomas
in the East has caused this outbreak ;’ he said, ‘No my friend; I never
gave them bad advice, I only told them the Lord would send them a day
of deliverance.’ I told the Baron not to go, but he would go, he was such
an obstinate man.”

(c) Thus, one of the volunteers who escaped stated, “ Whilst hiding, I
saw the Baron ; Paul Bogle came up to him, and said, ‘ we have found you,
eh?’ Bogle said something about money ; the Baron said, ‘if it isme you
want, here I am, take me.’ Paul Bogle said, ‘ we don’t want you alone, we
want all the buckras and volunteers,’ and they killed him. Paul Bogle said,
* Ah, my boys, did I not tell you to-night we would do the work.” So, at
Amity Hall next day, their cry was, ‘‘ kill the whites, let not a white brute
escape” (Harrison). So at Bath, “kill the white men, and we will have
their places for ourselves” (Kirkland). So at Manchioneal.
( 288 )

lion, was deliberate and designed, was proved not only
by the words and acts of the open and acting leaders,
but by the knowledge of others—the more secret leaders
at a distance—as to what was about to occur (a), and warn-
ings given to intended victims,

It was proved (6) that many of the prisoners, executed
under martial law, declared with their dying breath, that
the two men executed as the secret and active leaders of
the rebellion had brought them to that end, which was
naturally enough regarded at the time as sufficient ground
for suspicion.

The evidence under this head (c), in short, went strongly

(a) Thus, that Laurence—the agent of Gordon, the real though secret
author of the rebellion—knew of it, was proved at his trial before court-
martial by several witnesses. He told the wife of one Major, who had gone
to the meeting where the massacre took place, that he was safe, but that
the Custos and others ‘were doomed,” though Major was in fact saved
partly by her saying he was a friend of Mr. Gordon’s. (Ev. of Major and
his wife.) And that Gordon himself knew of it, was proved by what he said
the day afterwards. “I told the Baron, (the ‘Custos’) not to go, but he
was so obstinate.” (Ev. of Lee.)

(6) Then Colonel Hobbs wrote a despatch to General O’Connor, inform-
ing him that he had proofs of G. W. Gordon’s guilt. That despatch was
written, he stated, in consequence of what he heard from prisoners, He
first heard the name of Gordon as one of the leaders whose name was
coupled with Paul Bogles’. “A prisoner, who had been convicted, before
his reprieve, told me that “Gordon had given the lamp to Bogle for the
chapel; it was then the idea occurred to me that G. W. Gordon
was the leader of the rebellion; the testimony of these prisoners en
masse, of which he took pencil notes, especially among the ringleaders—
coupled the names of Gordon and Bogle with the rebellion; I asked them
what had caused them to join the rebellion, and they unanimously said,
“It was not our fault; it was Gordon and Bogle that made us join —
about thirty told me that.” So the Brigadier in Command stated that he
was present at the execution of a prisoner, who said that Gordon had
brought him to this, and that statement was proved on Gordon’s trial. And
another witness so stated; but one of the rebel ringleaders, a man named
M‘Laren, Paul Bogle’s secretary, cried out at the time of his execution:—
“You people, take warning, that I was elected secretary to Paul and Moses
Bogle, because I could write; they and George William Gordon have
brought me to this.” See also the evidence of Mr. Espeut.

(c) “ Mr. Benjamin to Governor Eyre: —Easington, St. David, October

12, 1865. As Magistrate’s Clerk of the Parish of St. David, I beg leave
( 284 )

to bear out the impression formed by the Governor from
the information he received at the time—that there was a
rebellion which was spreading rapidly in every direction,
and was causing everywhere the greatest alarm and the
most urgent call for troops. And, from the first, the danger
apprehended was the escape of the rebels, and the areas
of the rebellion.

A vast body of evidence was afterwards given (a), saith
showed that the massacre which formed the outbreak of the
rebellion was followed up the next day by similar acts ; that

to inform you of a serious outbreak in the parish of St. Thomas in the
East, which has resulted in the death of several influential gentlemen,
among whom are the Baron, our Custos, the Honourable W. P. Georges,
Mr. Price, Rev. — Herschell, and several others; the volunteers beat down,
and several murdered ; the entire Court-house burnt down, police-station
demolished, &c., &c. I have further learned that it is the intention of the
rebels to come into Saint David and destroy property, and murder every
respectable man. We are without protection, the police having been taken
away to Morant Bay, and the constabulary force being so small, would avail
nothing among a large body against us. I therefore would suggest to his
Excellency respectfully (if not too premature) that a company of troops be
sent to Yallahs, and one to Easington (if available) to protect the parish,
which I consider to be in imminent danger.” (Which was immediately
ordered.) ‘“ Captain Ross to the General:—Morant Bay, October 13,1865.
I have the henour to report, for your information, that the force under my
command disembarked here this day, and will encamp. The civil authori-
ties have been massacred, with one or two exceptions, by the natives of
this, and the rioters are now reported to be destroying the plantations in
the vicinity."—‘‘ To Mr. M‘Every, J.P., dated Richmond Vale, October 12,
1865. I am sorry to inform you that the people down the valley have
risen ; they have burnt down the Court-house,{&c., at Morant Bay, released
all prisoners, and killed a number of white people. A released prisoner
who has come this way states that it is the mob’s rumour that they are to
proceed with their work of devastation up this way ; therefore I have written
to you that you may use your discretion as to what is to be done, and to
make it known to those it concerns.” (This was sent to the Governor.)
Then there was the letter readby Mr. Commissioner Gurney from Mr.
Davidson, J-P., to Governor Hyre—“ Sherwood Forest, October 12, 1865.
It is the intention of the mob to go up the Valley, and onwards, I fancy in
this direction.”

(2) As at Amity Hall, where one white person was massacred and several
others cruelJy beaten and left for dead. ( Vide evidence of Hire, Jackson, &c.)
( 285 )

large bodies of armed negroes went to various estates (a), and
either massacred the white proprietors, or sought for them
with the avowed intention of slaying them, and this drove
them to seek safety in flight (b). And that the negroes
went about uttering threats of extermination against the
white men, the women being reserved for a viler fate (c).

The evidence showed that though the negroes did not
kill any of the white women, they subjected them to
the grossest indignities (d), reserving them, as they avowed,
for a viler fate ; and the expressions the rebels used abun-
dantly indicated that the object of the conspiracy was, on
the one hand, to kill the white men, so as to obtain entire
possession of the island ; and, on the other hand, to reserve
the white women for themselves (e).

The enquiry as to the “ nature” of the “ disturbances,” of
course, contained evidence as to its extent, which might be
proved from the amount of damage done, and the great
extent of the outrages ; or the numbers of negroes engaged

(a) As at Mr. Foote’s, Mr. Patterson’s, and other places. (Vide their
evidence, and evidence of Field, Frendish, Rennell, and Flemings.)

(b) Evidence of Mr. Eyre and Mr. Westmorland, that Kingston was
soon full of refugees, driven from their homes by dread of slaughter.

(c) Evidence of Kirkland, Field, Shortridge, Harrison, &. The ery of
the blacks was “ Colour for colour; kill the white men, and we will have
their places for ourselves.” That the women were for a viler fate, was proved
by the evidence of many witnesses. (Ev. of Mr. Hitchen, Mr. Herschell,
Mr. Shortridge, &c.) Women were ravished (2 Parl. Pap. 35.) That the
rebels meant to kill all the white men, was shown by their acts everywhere.
For instance, when they got into the town of Manchioneal, this was their
cry. (Hv. of Burke.) And this was at a considerable distance from
Morant Bay, about half way between it and Port Antonio, which is forty
miles distant, and to which the rebellion rapidly extended.

(d) See the evidence of Mrs. Hitchin, widow of one of those
who were slain in the massacre, and of Mrs. Herschell, the widow of
another of the victims, and of Mrs Shortridge, and many others.

(e) This was extremely important, as its effect would be naturally to
madden the whites, and thus to excuse a greater amount of severity in
the suppression of the rebellion than might otherwise have been displayed.
It is impossible to conceive of an insurrection begun under circumstances
more horrible, or with greater circumstances of exasperation and provoca-
tion among those who were to be its victims.
( 286 )

in them. Official proof was given (a) of the actual extent
of the rebellion, as indicated by the places at which houses
had been not only searched, but gutted, burnt, and des-
troyed, as by an invading army; and this comprised not
less thna fifty places, and a thousand houses, spreading over
a distance of forty miles from the scene of the original
outbreak.

From the numbers of negroes actually engaged in the
insurrection, that is of those who were present aiding and
abetting in the original massacre, or at the murders, or
attempts at murder, or acts of outrage, which (6) after-

(a) John Parry, sworn, and examined—Am Government engineer for
Surry—I have made a survey of all the districts in which were the recent
disturbances, and have made a report of all houses or buildings destroyed.
[Report presented and read as follows :—]‘ Return of all houses or build-
ings destroyed during the recent disturbances. Monklands 14, Duck-
worth 11, Ross Isle 27, Mount Lebanus 78, Somersett 101, Trinity 10,
Coley (North) 51, Garband Hall 39, Hill'Side 6, Spring 14, Danvers 6,
Huntley 2, River Counts 7, Coley (South) 21, Foot Hill 21, Nutts
River 24, John’s Town 18, Beckford Town 18, Prospect 26, Harbour
Head 13, Port Morant 3, Old Pera 5, New Pera 2, Barking Lodge 11,
Dalvey 9, Duckenfield 9, Amity Hall 2, Happy Grove 19, Belle Castle 24,
Williamsfield 2, Haining 6, Dillon 13, Grange Hill 15, Spring Valley 20,
Manchioneal (Barracks and Fort) 54, Darlingford 14, Landshere 11, Ken-
sington 4, Pleasant Hill 4, Panton’s Hope 5, Cog Hall 20, Long Bay 7,
Black Rock 2, Boston 1, Friendship 6, Wheelerfield Estate 1, Sunny
Hill 9, Airey Castle 18, Thornton or Torrington 91, Style Hut 17.
Total destroyed—1000. The houses set down in the above are actual
dwellings, and not including kitchens and outhouses. Value of the 1000
houses, including kitchens and outhouses and not with furniture, £4426,

(5) There were, according to the testimony of many witnesses present,
not less than 700 or 800 at the original massacre at the Court-house at
Morant Bay, and it was remarkable, and was stated in evidence, that
few went from Morant Bay to other places where risings took place ; and
those risings were quite separate. At the murder at Amity Hall next
day, there were probably two or three hundred, so at Bath, Manchioneal,
Port Antonio, and other places, where the negroes were seen in force, in
bodies of two or three hundred at a time. Putting these numbers together,
it is impossible to estimate that there were less than four or five thousand
of them actually engaged in acts of murder, arson, plunder, and armed
rebellion. This must necessarily represent a far larger number, more or
less implicated; and it was only in one county that the acts of rebel-
( 287 )

wards took place, inferences could be drawn as to the
number of men actually engaged in the rebellion, which
could not have been less than some thousands, the numbers
really implicated being, of course, far larger.

The evidence was overwhelming, that at all events
within the declared district there was a general, or very
widespread disposition among the negroes to massacre the
whites (a) ; and there was also much evidence of a similar
disposition in other districts) Whether or not this was
the result of an organized conspiracy (of which there was
evidence, at all events, in the disturbed district), or of a
general feeling of animosity against the whites, would be
immaterial, except that the latter case, of course, would be
infinitely the more formidable danger.

Further than this, it was well-known (0) that even the

lion occurred, and for the most part in one parish, where also most of
the military operations took place. ;

(a) Thus, numerous witnesses proved that on the days following the
original outbreak, the negroes went about crying, “Colour for colour ;
kill all the whites!” Negroes themselves proved this, as well as whites.
For instance, a witness named Thomas Burke, proved that he heard
the people say when they came into Manchioneal, that they had come to
kill all the white men. Moreover, many witnesses, whites and negroes,
proved that the negroes themselves deemed the identity of colour and
race the strongest bond of union, insomuch that they deemed it treason in
a black man not joining the insurrection. (See evidence of Cussens.) In
the parish of St. James several threatening letters were received, and it is
remarkable that one of the houses which, according to these letters, was
marked out for burning, actually was burnt in December. A man was
convicted there for seditious language in saying to another negro, “If the
war is crushed out in St. Thomas in the East it will break out here, and
then would you, being a black man, not join the black people?” There
were many similar cases.

(6) It was afterwards proved by many credible witnesses, and as it was
the most remarkable, so it was the most formidable fact in the case; for it
showed how entirely the safety of the whites depended upon gaining, and
gaining at once, the ascendancy, so as to discourage the worser, and
encourage the weaker portion of the hostile race. This is, indeed, as has
often been pointed out, the great evil of rebellion; that, in the long
run, it carries along in its current those who really were not desirous
( 288 )

better disposed of the blacks were but waiting to see which
would prove the strongest, the whites or the blacks; and
in the event of those of their own colour gaining the
ascendancy, many of them actually avowed that, however
much they might regret it, they would be compelled to
join them, and this was the main danger.

It was stated that it was well known to those of longest
residence in the island (a), and who were best acquainted
with the negro population, that though (happily) not them-
selvesof much ability for organizationand actualcombination,
they had elements of character infinitely more formidable,
with reference to rebellion, and that they were so easily
worked upon, and in such a state of disaffection, brought
on by mischievous agitation, that a spark, if not promptly
extinguished, would suffice to fire the flame of a universal
insurrection (6).

The evidence of the existence of an actual organization
among the blacks, with a view to a rebellion, would be less
material, because, from its nature, the existence of such

of joining it, but who at last are compelled to do so in self-preservation.
Even the best of the negroes said, “they must join the insurrection, if it
extended.” (See the ev. of Miles, Carr, Brooks, Lowe, &c.)

(a) This was stated by some in the highest position in the island, and
who had resided there for long periods of twenty, thirty, or even forty years.
(See the evidence of Mr. Salmon and Mr. Westmorland), And the
phrase used was the one adopted in the text, viz, that the state of dis-
affection among the negro population was such, and such was their ignorant,
inflammable character, that a spark would kindle it into a flame from one
end of the island to the other. This was proved, in point of fact, by the
circumstance, that, for several days after the first outbreak, there were

similar risings on the whole eastern part of the island, an extent of forty
miles.

(6) All this, it will be borne in mind, was most material, not merely with
reference to the necessity for declaring and continuing martial law, but also
with reference to the nature of the particular measures taken in carrying
out martial law; which would necessarily be adapted to the nature of the
rebellion. And hence the close connection between this head of enquiry, as

to the circumstances of the disturbances—and the other, as to the measures
taken for their suppression.
( 289 )

an organization would hardly admit of express or direct
proof, but must be, more or less, matter of inference, and
also, because there may be, in the sympathies of race, and
of common disaffection, and common feelings of animosity,
far stronger and more formidable bonds of union than
any actual organization.

The evidence (a) of persons in high positions, best ac-
quainted with the’ island, entirely confirmed the view
which the Governor had all along taken, as to the origin
and nature of the disturbances, that they had their origin
in a seditious system of agitation, tending necessarily to ex-
cite disaffection among the negroes.

Evidence was given (b) as to the circumstances of the

(a) Ev. of Mr. Hosack. With regard to the Underhill meetings and
the political meetings held during the summer in different parts of the
country, Mr. Hosack expressed a strong opinion, founded upon his own
observation and knowledge, as well as upon the reports of custodes and
magistrates already in evidence, that very bad effects had been produced
upon the people by the speeches there delivered, and that they gave rise to
a state of feeling which made the Morant Bay outbreak more dangerous
than it would otherwise have been. The principal points discussed at those
meetings were taxation, land, and the administration of justice at petty
sessions. Of course he did not mean to say that a member of the Assembly,
as Mr. Gordon was, might not hold meetings, and express opinions in oppo-
sition tothe Government, if he thought fit ; but this was always supposing:
that he did not do this with the object of promoting rebellion; and Mr.
Hosack believed that Gordon’s speech at the Vere meeting, when he called
on the people to do as they had done in Hayti, was made with a view to
excite rebellion. He said that Colonel Fyfe had inquired at the time into
the truth of the statement, and had written him aletter, in which he said,
“We areslumbering upon a mine.”

() Vide ante, p. 120. “Mr. Westmorland put in official letters
received by the Government from the authorities in nearly every part of
the island calling for arms, ammunition, soldiers, and means of defence.
At the same time, families flocked into Kingston from all parts of the
island; refugees arrived from St. Thomas in the East in a most pitiable
plight, stating the intention of the rebels to murder all the white and
coloured people ; all these things added to the excitement and alarm ; and
the magistrates of Kingston passed a resolution calling on the Governor to
come there and consider the propriety of proclaiming the town. Applica-
tion was made to Admiral Hope for assistance, a vessel being despatched to
St. Jago de Cuba, and a telegram being despatched to Havannah, with a re-

U
( 290 )

disturbances ; and the circumstances under which martial
law was declared. For the first ten days after the out-
break of the rebellion, the utmost alarm and consterna-
tion prevailed through the eastern and central parts of the
island, especially the eastern, where the insurrection had
broken out; the whites were driven in numbers from their
residences, forced to seek safety in flight, and it was not
until after the lapse of a fortnight, and after energetic mili-
tary measures, that anything like confidence began to be
restored,

The members of the Council also stated the grounds on
which martial law was proclaimed (a), in accordance with
the unanimous opinion of the Council, and upon the judg-
ment of those in the best position for forming a judgment
upon all the circumstances of the island, the character and
number of the black population, the spread of disaffection,
the apparent imminence of general insurrection, and the
small amount of military force to meet it.

quest to the British consul there to send on a fast steamer to the Admiral
at Halifax. Applications for help and for arms poured in from all quarters
of the island, representing the defenceless condition of the several parishes,
the insufficiency and inefficiency of the police, their want of arms, the dis-
bandment of the volunteers, the disaffection of the people, and the general
alarm. Mr. Westmorland produced a large number of these applications,
all to the same effect, and all pretty much of the same urgency. During
the first ten days of the outbreak every precaution was taken. A large
quantity of powder was placed on board vessels in harbour; cutlasses were
collected from the various stores and lodged in safe custody ; and about the
19th of October the people began to be reassured.”

(a) Thus Mr. Westmorland, a member of Council, being asked his
reason for assenting to the declaration of martial law, said it was because
the Custos and a great portion of the civil power of the parish had been de-
stroyed at Morant Bay ; because the Government had information that the
people in the Blue Mountain district were all rising ; because he also had
to take into consideration the inadequate military force at the disposal of
the authorities, the difficulty of communication during the rainy season, and
the probability, from his knowledge of the negro character and their sus-
ceptibility to bad influence, that insurrection would spread, if not immedi-
ately checked. The Council of War, Mr. Westmorland said, were unanimous
in favour of proclaiming martial law over the county of Surry, Kingston
excepted. The proposal to put the whole island under martial law did not
( 291 )

They stated it was the honest: belief (a) in the minds of
those best informed, and of the greatest intelligence, and
the longest residence in the island, that, if the insurrec-
tionary spirit were not crushed_at once, it would spread
with fatal rapidity. And that the disaffection was general,
and that the local dispute was only the spark which fired
it into a flame.

The enquiry into the nature and accounts of the disturb-
ances also embraced a vast quantity of evidence as to the
course taken by the insurgents (b) when martial law was

emanate from the Governor, but from one of the members, and some of those
residing in Kingston were most anxious that that town should be included,
but this was thought inexpedient.

(a) See the evidence of the Hon. Mr. Salmon and the Hon. Mr. West-
morland, the Attorney-General, &c. Mr. Salmon, who was present at the
Council of war, said ‘‘ he had no other information as to the disturbance in
St. Thomas in the East, except having heard of the massacre —he concurred
with the proposition of declaring martial law—as he believed there was a
necessity for it—he cordially and perfectly agreed with the immediate and
decisive action taken for suppressing the disturbances, because he believed
if those steps were not taken, the rebellion would have extended over the
whole island, because all the people were dissatisfied—he believed that if a
rebellion broke out in St. James’s, it would extend to St. Elizabeth’s, and in
fact would be widespread. If the rebellion had not been crushed so rapidly,
Jamaica would have gone, and the whites would all have been dead by that
time. Every man who knew the negro character, knows now that we are
unsafe. His very carpenter told him that if the blacks rose, they would
massacre the whites and coloured—have no reasons to know that there was
a combination, for there was no time for that, but believed that if the
Morant Bay rioters went through the other parishes, they were all prepared,
and would have risen.” The Attorney-General stated, “I think that there
was a necessity for martial law, and that et prevented the spread of the re-
bellious spirit.”

(b) This really lay at the root of the whole matter, and the misunder-
standing of it gave rise to most of the aspersions on the conduct of the
Governor and General in continuing martial law; and the officers engaged
in carrying it out. It was supposed that rebels ceased to be rebels, or ceased to
be dangerous, when they withdrew from actual insurrection, not venturing
to meet the troops, and lurked in the woods; whereas, that was the
most difficult and dangerous phase a rebellion could take. It would be
comparatively easy to deal with them in the open field ; but nothing is more
harassing or exhausting to troops than to dislodge and drive out bodies
of men holding a dense and inaccessible “bush.” Yet, if they were not
driven out, they would lurk there until the military withdrew.

u2
( 292 )

put in force. That is, that instead of meeting the troops
openly in the field, they betook themselves to the. “bush,”
in districts difficult of access, and abounding with natural
fastnesses ; whence it would be difficult to drive them, and
where they might wait until the military were either ex-
hausted or withdrawn.

Evidence was given (a) that in the neighbourhood of
places which had been sacked and plundered by the rebels,
the houses of negroes were deserted by the men; while
arms, ammunition, and plunder were found therein (6), and
that in the “bush” all around, large bodies of men were
seen lurking, who had evidently withdrawn at the ap-
proach of the military, to hide there until the military

withdrew.
Similar evidence was given (¢c) with reference to the

(a) The evidence was principally that of the officers in command of
detachments, and the gentlemen who accompanied them as magistrates or
volunteers. They all concurred in this: houses deserted, ammunition and
plunder therein, and negroes in the bush. The inference was obvious and
unavoidable. (Ev. of Colonel Hobbs, Captain Hole, &c., vide ante, p. 167.)

(b) This was the key to the whole case. It bore upon the necessity for
continuing martial law to dislodge these lurking bodies of rebels. It
explained the alarm which prevailed. It caused a continued demand for
troops. It rendered it necessary often to fire upon men who might not be
at the moment in arms, but who were merely waiting to resume them.
And it also explained the reason for the burning of houses.

(c) Governor Eyre to the Brigadier-General, said :—“ I continued martial
law in force after the amnesty was declared, because there were rebel
prisoners to be dealt with, and because I had received information that
there might be expected disturbances in other districts. I received various
communications from every part of the island as to expected further risings.
They were very numerous, and showed that there was a seditious spirit in
the country, and it was very unsettled. There was'no difference of opinion
expressed as to the continuance of the court-martial. No application was
ever made to me for its cessation. I think it was necessary for martial
law to continue after the amnesty; my idea was that martial law should be
kept up until every rebel had been caught and all offenders punished.”
Mr. Espent, a member of the Assembly, said:—“ There was still very great
alarm existing at Morant Bay up to the 6th of November, in consequence
of no one working on the estates. The proprietors had mostly fled. Every
one in Morant Bay seemed apprehensive of another general rising. The
( 293 )

continuance and duration of martial law, and especially
as to its continuance for a short time after the amnesty ;
that is, evidence, on the one hand, as to the nature of the
disturbances, and, on the other hand, as to the deficiency of
military force, which also would be equally material as to
the particular nature of the military measures taken under
martial law. And there was a good deal of evidence to
show that it was necessary to continue martial law for the
purpose of preventing a renewal of the insurrection.

The Governor in his evidence (a), referred to official com-
munications, in support of the opinions entertained that the
general state of disaffection rendered a renewal of insurrec-
tion probable. And he stated that although an amnesty
was proclaimed, martial law was not abolished until a fort-
night later; because, in the judgment of those in the
highest position, and with the best means of information, it

continuance of martial law was caused by what we heard from many persons
throughout the different districts.

(a) Many of whichhave been given (vide ante p. 224). He produced
many others. ‘‘ After the amnesty had been proclaimed, the Government
received a letter from the Custos of Manchester, who spoke of nightly
meetings among the people; at Montego Bay the withdrawal of the force
sent there was strongly complained of; from Hanover came a presentment
by the grand jury calling attention to the unprotected state of the loyal
people there, and expressing an opinion that the disaffection was widely
spread. On the 14th of November there was a similar presentment by the
grand jury of St. James, pointing out the inefficiency of the police, and
the fact that a latent spirit of discontent appeared to exist among the
labouring classes. There was a letter from Mr. Lynch, enclosing a threat-
ening notice he had received as to holding the Court at Spanish Town. He
cited these communications to show the pressure put upon the Government
at this time, and prove that the public anxiety and alarm had not yet
subsided. The Custos of St. David came to the Government and urged
them not to discontinue martial law, inasmuch as life and property were
not yet safe. At the time when the amnesty was issued, there were three
different parts of the island in which disturbances existed — Westmoreland,
St. Ann’s, and Port Maria,—and, that being so, it was not desirable to
remove the terror which martial law naturally inspired, not only in the
district where it was in force, but all over the island. The police force,
small as it was, was very imperfectly armed, and the voluntcer movement
was nearly at death’s door.” (Ev. of Mr. Eyre.)
( 294 )

was still unsafe to remove it; as there was a general feeling
of apprehension, and universal belief in smouldering dis-
affection. This, it is obvious, was a matter of judgment.

The Royal Commissioners (a) received any communica-
tions or representations made to the late Governor at the
time of the occurrences in question, as showing the
materials then before him for his judgment, though they
declined to allow him to state the inferences he had drawn
thereupon, or the impressions he had formed ; their enquiry
under this head being only as to facts, not opinions.

The question how long martial law should be continued,
like the question whether it should be declared at all,
as it depended entirely upon danger, must turn on circum-
stances as they appeared and were observed at the time ;
and not only those who had been longest in the island,
but, on the other hand, those (6) who were unconnected

(a) The Governor produced communications stating serious appre-
hension of an expected outbreak in that parish. It was remarked by Mr-
Gurney that this letter, and others of a similar kind, could be taken only ag
communications to the witness, and not as evidence relating to any of the
facts contained in them. Describing, in the course of his statement, the
inferences and opinions which he drew from documents as they came into
his possession, Mr. Eyre was met by the objection that, as those documenta
were put in as evidence, he had no need to draw largely upon them in his
statement. As Mr. Gurney said, “The inference to be drawn from those
documents would be drawn by the Royal Commissioners themselves ;
however, the Royal Commissioners are of opinion that you are limited
in your statement to facts, and that to argue upon documents is not in the
province of evidence. All argument must be excluded from your state-
ment; but evidence should be given as to how you acted upon documents
which you have got in.”

(6) For instance, Lieutenant De Horsey, who (vide ante, p. 123) had been
in the island from the time of the first outbreak; and, on the other hand,
being the naval Commander on the station, was quite unconnected with
the island or its authorities. He stated that at the time he was of opinion
that it would be necessary to take very strong measures, and to keep up
martial law for a month, and he did not think that it had been retained
at all too long. In comparison with the opinion of men in his position
for observation, what was the worth of the opinions of men not present,
and formed long after the event ; moreover, the time could not have been
shortened without the assent of another Council of War, and all the mem-
bers were against it.
( 295 )

with the island, but had been present throughout the
disturbances, concurred in the opinion of the Governor,
that it was necessary to retain martial law for the period for
which it had been proclaimed.

The best test as to the nature of the disturbances, and the
danger they involved of a widespread and destructive
rebellion, was, the opinion of those in the highest position
and of longest residence in the island, that, but for the
prompt and severe measures which had been applied, the
white population would have been exterminated (a).

There were those examined as witnesses (b) who remem-

(a) The evidence was overwhelming, that such was the object of the
blacks, and their enormous preponderance in numbers would have ren-
dered their success certain, if they had once been allowed to use it in full
force. See evidence of Mr. Westmorland. (Ev. of Salmon.) If it had not
been for the prompt suppression of the rebellion the probability was
that few whites would be now living in Jamaica. And Mr. Salmon said
that, owing to the bad influences brought to bear upon the negro, and the
bad advice given to him, it was the opinion of a large majority of the
gentlemen of the country who knew the negro character, that the position
of the whites was entirely unsafe. Under the influence of certain persons
the negroes would do anything. They thought that everything was
to be done for them, and if nothing was done they would be dissatisfied.
Mr. Vickers, the Custos of Westmoreland, says that in that parish, which
is larger than the whole island of Barbadoes, the discontent and disaffec-
tion were shown chiefly in the mountains among the small settlers who
had freeholds of their own, and not among the labourers on estates. In
the opinion of this witness, the insurrection, if it had not been promptly
checked, would have extended over this large parish.

(6) The general measures adopted for the suppression of the rebellion
were approved by Mr. Hosack, who confirmed the opinion—expressed by
so many other witnesses—that the celerity and severity with which the
outbreak was met by the military and naval authorities, saved the island
from a general rebellion. Anything like a hesitating or a Fabian policy,
said Mr. Hosack, would have been entirely fatal; and the prompt and vigo-
rous measures which were taken alone prevented the most serious con-
sequences. Witness was in the island during the rebellion in 1832 ; but he
thought that the danger to the white people was infinitely greater last
October than in the former rebellion. In 1832, Jamaica was well protected
by regular troops. There were five white regiments in the island, besides
a well-trained militia force of about 9,000 men, over 500 troopers, mounted
on some of the best horses in the island, and the Maroons, who numbered
5,000. At that time (witness continued) martial law was imposed over the
( 296 )

bered a former insurrection in the same island, and declare
the danger from the present one to have been far greate
and their belief was, that the measures which had bee
taken for the prompt suppression of the rebellion ha
saved the island from destruction ; and that, had they bee
less prompt or severe, the island would have been lost.

And if any confirmation had been required of the sounc
ness of the judgment formed by those who resided in tl
island, and were best acquainted with it, as to the dispos
tion of the black population, and the existence of a wid:
spread spirit of disaffection, it was afforded by the
demeanour and conduct, even during the sittings of tl
Royal Commission (a), and the stringent acts of authori
this conduct elicited.

whole island, although the rebellion was confined to the parish of St. Jam:
Martial law was then maintained for six weeks, and it was succeeded
what was called “ party law,” a kind of semi-martial law imposed by spec
statute. For three months at that time witness was in charge of t
Charlestown Maroons. In the present instance, Mr. Hosack was of opinic
that, with the information which the Government received, it was necesse
to continue martial law during the thirty days prescribed by statute, ev:
allowing that the Governor had the power, under the 9th of Victoria,
restore the civil authority during that period, which witness doubted. E
the civil authority at the time was so disorganized and so weak in
Thomas in the East that the ordinary tribunals could not have dealt wi
offenders. The witness was asked whether it would not have been possil
to keep up martial law, supposing that to have been necessary, but to ha
decided that meanwhile no prisoners should have been executed by s:
tence of courts-martial? Witness said that this point was not raised, 1
did he think that the ordinary tribunals could have dealt out punishmi
with the necessary promptitude and effect. Indeed, at first he thoug
that the amnesty proclamation was premature, and he had remonstrai
with the Governor in that sense.

(a) Throughout the inquiry their demeanour was such as to show tk
but for the terror still left of martial law, and the presence of the troc
they would break out into excess. The Governor (Storks) had been ec
pelled to issue a notification to the people, warning them that, it hav.
cowe to his knowledge that “threatening language is made use of in m:
parts of the country, tending to create alarm for personal safety, and for
security of property; and it being also well known, that certain reports
current, tending to mislead the labouring classes, and to create irritat
and bad feeling amongst Her Majesty’s subjects; his Excellency stron
( 297 )

So far as regarded the first and fundamental head of the
enquiry, the origin, nature, and circumstances of the dis-
turbances, and especially whether they were rebellious, and
how far they were, or threatened to be formidable, and of a
character to require martial law (a) ; and how long, if they
were of that character, the rebellious state continued.

The second head of the enquiry, the measures taken
for the suppression of the “disturbances,” and the conduct
of those engaged in such suppression, involved—especially
as to the latter branch—enquiry into the facts bearing on
the conduct of the Governor in council in declaring martial
law, though it would not, it is conceived (6), authorize the
expression of opinion upon it. ‘

reprobates the use of such threatening language, and the circulation of such
reports, and declares that all the powers placed in his hands by Her
Majesty will be used freely for the purpose of maintaining the law.” In
point of fact, witnesses attending the Commission were openly threatened
and insulted, and the law on one occasion was openly defied by a large
body of men, until the Governor had to order out the troops, and then, and
not until then, under terror of military force, the peasantry submitted. The
Governor thought it prudent to issue the following circular to the Custos or
senior magistrate of each parish:—“ Sir,—I am desired by his Excellency
the Governor to request, that you will be so kind as to favour him, once in
each week, with a report on the state of your parish, as regards the public
feeling and tranquillity; and, should the slightest attempt be made to
create any disturbance of the public peace, to despatch a special message
with the information, direct to him.”

(a) It will be observed that the Commission did not authorize any
enquiry into the necessity for declaring or continuing martial law ; unless,
indeed, it is considered that, under the second head of enquiry, ‘‘ measures
taken for the suppression,” it was open to the Commissioners to consider
the propriety of declaring or continuing martial law. But that clause
would appear rather to refer to the measures actually taken under martial
law, not the declaration of martial law.

(6) The Commission might, in terms, authorise it, but, it is apprehended,
it would not constitutionally authorise it. The enquiry, at all events,
could not possibly involve any matters criminal in their nature, as affecting
those whose conduct was assailed. For, even supposing that they had
erred in their judgment in declaring, or continuing, martial law (assuming
that to be within the scope of the enquiry) no amount of mere error in
judgment, in an act such as that, could possibly involve a criminal liability.
However, it might involve some amount of responsibility, and lay them
( 298 )

The enquiry into the “ measures ” taken for the suppres-
sion of the disturbance, would, of course, include, as a
matter of fact, the declaration of martial law, though not,
as a matter of opinion, the propriety of that step. Evidence
was taken, therefore, showing that at a council it was
unanimously resolved to declare martial law (a), and that
martial law was accordingly proclaimed with strict legality.
Evidence was also taken that martial law was continued for
the period allowed by law; that is to say, for a month

from that time (6).

Evidence was also taken as to the local extent of
martial law, or the district as to which it was declared and
applied ; and it appeared that the Commander-in-Chief
was always of opinion that the entire island should be de-

open to some extent of censure, It was very different as to the conduct
of those personally employed in the measures of the suppression, which
might or might not be criminal.

(a) (Vide ante, p. 46). ‘‘He had left the proclamation to be drawn up
by the Attorney-General, to whom he constantly referred on any question
oflaw. He had never heard any doubt expressed about the Governor’s
power, by the advice of his council, to proclaim martial law; on the con-
trary, there was a specific enactment authorising him todo so.” (Evidence
of Governor Eyre.)

(6) Vide evidence of Attorney-General, Mr. Salmon, Mr. Westmorland,
Mr. Eyre, &. The Attorney-General stated “there was not a dessentient
voice. It was arranged that a proclamation of martial law should be issued,
or at least declared, and I was requested to draft; I did so in accordance,
I believe, with the law in Jamaica now in force. It was necessary that
before the proclamation could be issued, it should have the sanction of 21
members of a Council of War, and the Governor succeeded in getting a
Council of War ; the next morning there was a full Council, twice twenty-
one were present ; it was then agreed that martial law should be pro-
claimed. It was first proposed to proclaim martial law over the county of
Surry, but the result of the deliberations were that martial Jaw should be
proclaimed in Surry, Kingston excepted. There was no difference of
opinion, every man agreed to proclaim martial law, and, in fact, some were
for proclaiming it over the whole island. The discussions were, whether
Kingston should be excepted, and certainly there was no opposition to the
proposed step. I drew up the proclamation of martial law as Attorney-
General, acting under orders—it was drawn up very hastily, in the presence
of the Governor and General—I drew it under 9th Victoria, and acted
under that act, which gives thirty days as the period of duration.”
( 299 )

clared (a) ; but that the Governor was of opinion that it
should be confined to the district in which the actual out-
break of rebellion had taken place, and that, on grounds of
public convenience, the principal city should be excepted.
Reasons of policy and public convenience having pre-
vented the Governor from putting that city under martial
law, the Governor avowed that he had taken (6) upon him-
self the responsibility of directing the arrest of several
persons there, for supposed complicity in the rebellion ;

(a) Evidence of Governor Eyre, et vide ante, p. 298. The Governor
stated that the only difference of opinion in the Council was as to the
propriety of including Kingston. Mr. Eyre was very reluctant to bring
upon the capital city and chief port of commerce so serious a trouble as the
establishment, for any space of time, of martial law ; and ultimately it was
resolved that Kingston itself should be excluded, though the rest of the
county of Surry, in which it is situated, should be proclaimed. His sole rea-
son for not proclaiming martial law in Kingston, was the knowledge—which
only those who have ever witnessed the operations of martial law can pos-
sess—of the inconvenience it causes among a commercial class, and of the
evils which it must entail in any large community.

(0) The principal case was that of Gordon: (vide ante p. 181, vide part I.)
Governor Eyre also stated that other persons were apprehended in districts
not proclaimed, in pursuance of directions issued by him. In these cases,
however, for reasons already explained, (vide ante p, 105) it is conceived they
would be justified, if the parties had done anything to cause the rebellion.
At this point Mr. Eyre desired to remind the Commission that at the time
these arrests were made there were not more than a thousand soldiers in
Jamaica, half of that nnmber being engaged in the disturbed districts,
while the other five hundred were needed for the defence of Kingston,
Newcastle, Up Park Camp, and Spanish Town. Kingston was thought to
be in danger ; the whole island was in peril ; but not a single soldier could
be sent to any other part of the colony where fresh outbreaks might occur.
He, therefore, believed himself justified in taking the most prompt and
summary measures for suppressing the rebellion, and for punishing those
concerned in it. Mr. Eyre preferred taking upon himself the whole re-
sponsibility of measures, about which there would have been no question had
martial law not been proclaimed ; trusting to an Act of Indemnity such as
the Colonial Legislature has since passed. In reply to a question from Mr.
Gurney, whether, from information since forthcoming, his Excellency could
say that the effect of these arrests was to quiet apprehensions throughout
the colony, Mr. Eyre replied that such had undoubtedly been the result.
It is conceived that this question of the learned Commissioners went to
the root of the matter, and put it in a right ground.
( 300 )

and he stated the grounds and reasons upon which he took
those measures; which were the only, or the principal
active operative measures, he took personally, upon his own
responsibility.

Viewing the Commission constitutionally, it was an en-
quiry, on the part of the Secretary of State, in substitution for
that which he would have had a right to carry on, as well as
he could, by addressing interrogations to the officers engaged
in the service, and demanding explanations from them, upon
any matter which he deemed to require explanation (a).

The great object of the enquiry was to afford the Gover-
nor and the military Commanders the means of making
orally those explanations which were required by the
Crown, and which could not effectively be made by means
of despatches at a distance ; as to the manner (0) in which
‘martial law had been carried out; and as to certain
general statements in the despatches, which appeared to
imply that the measures of martial law had been continued
after actual insurrection had ceased, and directed with too
much vigour and severity against those not engaged in
actual insurrection.

The very institution of the enquiry, upon reports and

(a) The inconvenience of carrying on an enquiry in that way has already
been pointed out as one of the reasons for the Commission. And the
Crowa would have the constitutional power to do in the one way that
which it could do in the other. That is to say,it could thus demand ex:
planations from its own officers.

(6) This seems the substance of the demands for explanation addressed
by the Secretary of State to the Governor, either as to his own act, in
continuing martial law, or the acts of the officers as to the particular
measures taken. It was not suggested by the Secretary of State that
martial law had been wrongly declared ; the doubt suggested was only as
to its having been so long continued. And as the despatches disclosed
that martial law had been thus continued after actual insurrection had
ceased, and carried out against those not in actual insurrection, and the
Secretary of State declined to pronounce censure, but only instituted
enquiry with a view to elicit explanation ; this implied that there was not
necessarily any ground for censure, and that such measures might,
under such circumstances, be justifiable; otherwise it would have been
idle to ask for explanation.
( 801 )

despatches, disclosing that these measures had been taken,
implied, it is conceived, the recognition, on the part of the
Government, of that which it has been the object of these
pages to establish; that the measures of martial law may
be applied or continued in a state of rebellion, as distinct
from actual insurrection (a), and as against rebels, not
at the time in actual insurrection; and that, for any
errors or excesses, those honestly engaged in such measures
are not legally liable, but are only responsible to the
Crown.

It is to be observed that, & priori, the constitutional
scope of the enquiry being to inform the conscience of the
Crown, in matters which could not be made the subject of
legal prosecution, it would follow that the scope of the
enquiry would be limited (6) to the measures taken in sup-
pression of the disturbances, whether or not strictly in

(a) For as the despatches and reports distinctly disclosed that such
measures had been so continued and applied, and this was the main ground
upon which explanations had been asked, which it was the great object of
the enquiry to elicit ; this implied that explanations might be given, and
that circumstances might be disclosed in evidence, which would show
that the continuance and application of these measures, although actual
insurrection had ceased, and as against persons not then in actual insurrec-
tion had been justifiable, otherwise it is obvious the enquiry would have
been idle, and the Secretary of State might at once have pronounced a
censure. On the other hand, if such measures were illegal and unjustifi-
able, and the parties implicated were legally responsible, then the institu-
tion of an extraordinary Commission of Enquiry would have been obviously
unconstitutional and unjust, for it would have been a fishing inquisition
in aidof criminal prosecutions, against servants of the Crown, for their
conduct on an occasion of great public peril and emergency.

(0) As already shown (vide ante, p. 270), it would only be matters done,
whether wrongly or erroneously, yet done under military orders, in carrying
out martial law, which would be strictly done under, or in execution of,
martial] law, which would be protected by the common law, and only those
acts which were done in the suppression, which would be covered by
the bill of indemnity (vide ante, p. 230); and hence it would be only as to
these an enquiry by Royal Commission would be either necessary or con-
stitutional ; and accordingly the Commission carefully recites, as its ground
and reason, that it is complained that “excessive severity” had been used
in the suppression, that is, that measures had been taken in suppression of
the rebellion which were excessive in severity. .
( 302 )

carrying out martial law, that is, under military orders ;
but it would not properly extend to acts, if any, not really
done in the suppression, although during martial law, and
perhaps under colour of it.

The assumption seemed necessarily to underlie the whole
enquiry, that the measures taken might, at all events, pos-
sibly be lawful. But they could not (a) possibly be so (with
scarcely the most insignificant exceptions), except upon the
hypothesis that martial law had been established, which
would make all measures taken under military orders and
authority, at all events primd facie lawful, and also pre-
sumably, though not necessarily or conclusively, justifiable,
in a moral as well as legal point of view.

The recitals and terms of the Commission plainly im-
plied that, so far as the enquiry was to have regard to the
measures taken for the suppression of the rebellion,
they were not illegal ; for it was pointed, not at illegality,
but at excess. The ground assigned was the allegation of
excessive and unlawful severity, 4.e., severity unlawful by
reason of excess (b), whereas all the measures taken were

(a) Except as to the few negroes killed in the act of the felonious attack
on the house of one Duffus, and except the few killed in an actual encoun-
ter with the Maroons under Colonel Fyfe. These were the only instances
in which the infliction of death would have been justifiable, at common
law, by the military acting merely in aid of the civil power, for their power
at common law is strictly limited to resisting or repressing actual outrage,
or to the effecting of an arrest for felony. These instances would hardly
amount to the odd units in a total of 438 negroes killed or wounded in the
course of the suppression. And all but that half-dozen or so had been, ina
legal sense, murdered, unless martial law had been lawfully established, in
the sense in which it has been here expounded.

(6) This was the more remarkable, because there were the loudest
denials of the existence of any rebellion, or of any necessity for martial law
at all, and it was likewise maintained, with the sanction of a legal opinion,
that even if martial law had been lawfully declared, it would warrant no
more than repression of actual disturbances, and not the punishment of
outrages or acts of rebellion already committed, for which reason it was
insisted that all the courts-martial that sat were illegal, and without lawful
authority, and all the military executions, save any that occurred in actual
encounter, illegal acts of homicide. Not the least notice was taken of
these allegations, and the word “ illegal” was carefully kept out of the
( 308 )

illegal, unless there was a legal power to declare martial
law, in the sense in which it has been here explained.

It may be assumed, from the known and published opi-
nion of the Judge-Advocate-General (a), and from the
terms and scope of the Commission, and from the course of
proceeding adopted by the Commissioners, that the Govern-
ment considered that, for the measures taken, however
erroneously (if honestly, and not maliciously), in declaring,
or carrying out (under military orders) martial law, the

Governor or the military Commanders would not be legally
or criminally liable.

The very institution of the enquiry showed that the mea-
sures taken, so far as disclosed on the face of the military
reports, were not either legally criminal, nor even neces-
sarily censurable ; for, in the former case, it is to be pre-
sumed that they would have been left to legal prosecution ;

Commission, and the word “ unlawful” was only used along with the word
excessive, with reference to degree of severity, ‘excessive and unlawful
severity,” words which would be very ill chosen, if al? the executions,
floggings, and burnings were illegal, as illegal they would have been, unless
martial law was legally established, and meant what has been here main-
tained.

(a) Vide ante, p. 108. The gentleman who had given that opinion was
still Advocate- General, and the opinion had been published the very day
after a contrary view had been put forth, as though to mark the adherence
of the Government to it; and it would be, it is conceived, impossible to
reconcile with it, or with the authorities already elaborately stated (vide
ante, p. 90), to suppose that the Governor, or the military Commanders,
who had honestly declared or carried out martial law, could be put to jus-
tify their measures in a court of law. The consequence of such a mon-
strous doctrine, of course, would be that no Governor would ever venture to
declare martial law, and no military Commander would ever venture to act
upon it. The only dictum, apparently, in favour of this view, extracted
from a former Judge-Advocate-General (Sir D. Dundas, before the Ceylon
Committee, 1849), to the effect that an officer would be responsible, under
martial law, just as a man is who shoots a man he supposes to be a robber,
if he turns out not to be so, is obviously erroneous, on the double ground
that it mistakes the common law in the case supposed (for the man would
not be so liable, if the appearances might naturally lead him to suppose it
was a robber), and next, it confounds what a man may or may not do at
common law, with what he may do under martial Jaw.
( 304 )

and, in the latter case (a), it is to be presumed that the
Secretary of State would at once have pronounced a cen-
sure upon them, as he was pressed to do, instead of which
he emphatically and repeatedly declared that he did not

censure or prejudge.
The terms (b), “ excessive and unlawful severity” would

be strangely inapplicable to measures wholly unlawful,
especially when those measures consisted not only of
the burning of houses and flogging of men; but of the
execution of men on summary enquiry, or of civilians
under sentence of courts-martial ; acts necessarily illegal ;
and, in cases of capital executions, in a legal sense, acts of

(a) The despatches which had already passed between the Secretary of
State and the Governor sufficiently showed this to be so. The Secretary of
State was strongly pressed to censure the officers, but he distinctly declined
to do so; and, so far from doing so, he, on the contrary, acknowledged
their services. And, though this did not commit him to approval of all
acts they had committed or sanctioned, it certainly implied a general
approval of their measures, so far as they appeared, as their general
character did, on the face of these reports, with the exception of the matters
specifically pointed out, and these were only pointed out as requiring fur-
ther explanation, not as necessarily deserving even of censure. It plainly
appeared that all the officers, and the Governor himself, had taken substan-
tially the same measures, although some might appear to have carried them
somewhat further than others, or to have reported them in a spirit less
considerate. Still, it appeared on the face of the despatches, that all of
them had attacked or executed men not found in actual insurrection, or
committal of acts of outrage, and this was wholly illegal at common law.
(Vide ante, Part I.) This, then, implied a recognition of the legality of
martial law.

(6) [fa man who might lawfully be arrested was flogged—that would not
be a case of excess ; the flogging would be wholly illegal. It would not be
like the case of an excessive flogging, but like the case of a constable who,
having legal authority to arrest a person, beats him with his staff ; which is
a wholly illegal act. (Oakes v. Wood, 2M. & W.) So, if a man is unlaw-
fully shot or hanged, it is absurd to call that excess, or even unlawful
excess, or “ excessive and unlawful severity ;” all these phrases are simply
absurd, applied to such an act, which is, legally, murder. And as the
military, when acting in aid of the civil power, at common law, cannot execute
any one, all the executions were legally murders ; unless martial law means,
what it has been explained to mean in these pages ; in which case, they were
all lawful, though they might be culpable,
( 305 )

rourder, unless martial law, in the sense in which it has
been explained in these pages, had been legally established.

The enquiry, it is conceived, was pointed to “excessive
severities,” (a) mainly with reference to considerations of
humanity ; and though the word “unlawful” was added,
that, it is conceived, had no reference to the one or two
cases (b), in which—as it is apprehended erroneously—it
had been supposed that the legality of the course taken was
questionable.

In one point of view, if the measures taken were un-
lawful, they would all be excessive; but, as already ob-
served, the Commission, by pointing its‘enquiry to measures
excessive severity, appeared to imply their legality ; and
the real truth was that (c), unless they were all legal (that
is, all that were taken under military authority), they would
none of them be legal; and if any of them were legal, all
would be so.

The question of excess, however, would be material,
with reference to the moral character of the conduct of
those concerned (d), whether the measures taken were law-

(a) Vide ante, p. 304. ‘ Excessive” seems to imply general legality, and so
do the expressions used in the despatch of the Secretary of State (vide ante,
p. 244); except as to Gordon’s case, and one or two cases pointed out as
exceptional. It is absurd, however, to use the phrase “ excessive,” as applied
to measures altogether illegal.

(0) Vide ante, p. 236. As to Gordon’s case, and as to the trials by court-
martial (vide post).

(c) Because, in hardly any instance were men killed in the act of felon-
ious violence, certainly not more than one or two, the instances of the
attack on the mob at Duffus’s, and the encounter with the Maroons. So
that all the rest of the acts committed, all the executions, all the floggings,
all the burnings, as they were illegal at common law, so they could only be
justified by martial law. On the other hand (speaking, be it observed, of
things done under military orders), if any of them were lawful, for the
same reason, all of them must have been 80, for all were equally done
under martial Jaw, and by military authority. Still, many of them might
be censurable. ;

(d) That is, their having acted honestly with a view to the suppression
of the rebellion, and having also acted with as much consideration and
humanity, as, under all the circumstances, could fairly be expected from

x
( 306 )

ful or unlawful, for the question of lawfulness or unlawful-
ness, depending upon considerations purely legal, and some-
times it may be somewhat strict and technical, it would be
the moral character of the proceedings which would be
the real substantial question, even assuming them not to
be lawful.

It will have been seen (a), that the Secretary of State
had addressed to the Governor certain demands for infor-
mation or explanation, which would form the basis of the
instructions as to the enquiry to be pursued. These de-
mands had first been pointed to particular passages in the
reports which appeared to require explanation. But upon
further consideration, it appeared to the Secretary of State,
that these particular questions resolved themselves into
questions of a more general character (0), as to the measures
to be taken under martial law, and he therefore had ad-
dressed to the Governor (c), a series of general enquiries, as
to the nature and extent of the measures which had been
adopted in the suppression of the rebellion, and these
formed the principal basis of the enquiry.

Setting aside some circumstances, it appeared that, in
substance, the measures taken by all the officers engaged
in the suppression (d) were the same, and were such as were

men acting in such an emergency. ‘Their, taking some care to distinguish
degrees of guilt proved, would be the best proof of this, and this was
shown, beyond a doubt, in many ways. A minority of those captured were
executed ; the great majority were only flogged, many were released. This
of itself showed that the executions were not reckless. No one was exe-
cuted merely for having plunder, but only upon proof of having plundered
or taken part in the rebellion, and so on.

(a) Vide ante, p. 234, p. 241.

(b) Vide ante, p. 244.

(c) For it appeared that, discarding such circumstances as went to the
propriety or humanity of the acts done, all the officers, and the General
himself, had taken substantially the same measures, at all events, in all
respects that concerned their legality, and had stated these measures in
substantially the same general terms, although in one or two instances, in
atone and spirit which caused greater dissatisfaction than in others (vide
post).

(d) Discarding mere circumstances of this kind, this appeared to be,
( 307 )

ordered, directed, or approved of by the General ; and that
they were such military measures as, in his view, and that
of the Commander-in-Chief, were authorised by the decla-
ration of martial law, to be taken against rebels or insur-
gents, whether taken actually in arms or not, if actually
engaged in the rebellion, and considered to be in hostility.

In substance, they all admitted such acts and measures
as had raised the important general questions raised by the
Secretary of State, founded on their own reports, which, in
this respect, will be found substantially the same. It
is manifest, that as the scope of this work is the measures
which may be taken under martial law, and which actually
were taken under military orders and authority, it has
to do, not so much, if at all, with measures and acts dis-
avowed by the officers, as with acts and measures which
they avowed, and admitted, and justified, by their orders, or
by the nature of martial law, or the usages of the service (a),
and as to which there was little, if anything, which could
affect their legality, which was not disavowed by the mili-
tary authorities.

And it was obvious that the lawfulness of their mea-
sures must depend upon some general authority, and that

in effect, the case ; all the officers had attacked bodies of men who might be
supposed to be in arms, or to be actively engaged in the rebellion, as they
might be, though they never had arms in their hands (as, by firing houses
and committing such acts of devastation, or aiding those who had arms),
and captured as many of them as they could. All of them executed such
as they were satisfied had been actively engaged in the rebellion, whether
found with arms én their hands or not ; as much of the mischief might be,
and was, done without arms; all of them burned huts, in which plunder
was found. All of them inflicted floggings, in cases in which only the pos-
session of plunder was proved, and not the participation in acts of plunder
or outrage. And all these acts were illegal, unless lawful by martial law.

(a) Which alone, as already has been observed, (vide ante, p. 90),
would be covered by the protection afforded, as is conceived, by the law, to
the execution of martial law. The scope of this work is, the measures taken
and acts done by military order and authority, which, therefore, excludes
acts denied and disavowed by the officers, and also acts done without order
and not approved, and acts, if any, disapproved of by the supreme military
authority, the General in command.

x2
( 308 )

this authority could only be conveyed by the declaration of
martial law, as hardly any of them could possibly be justi-
fied at common law (a); and, on the other hand, if the
declaration of martial law legally justified any of them,
then it must equally have justified (i.e. legally) all of them,
so far as they were measures taken substantially under the
same conditions, and in accordance with the authority pur-
porting to be conveyed by the declaration of martial law.

The substance of the enquiry was, as to the excessive
exercise of a discretionary military power. To establish a
discretionary power, however, it would be necessary to
establish the legality of the power, and hence the basis of
the enquiry would be the legality of the measures taken,
which must depend upon the effect of the declaration of
martial law (assuming its legality, which was abundantly
established), and the effect of that was (b) to establish in
the military a discretionary authority to act, as in war,
against all of those whom they might consider opposed to
the Government and its loyal subjects.

If the declaration of martial law had any real legal
operation to effect, and was anything more than a mere
empty form (in which view, all the measures taken,
with hardly one exception, were obviously illegal, and an
enquiry into “excess.” would be almost an absurdity), then

(a) Asalready has been amply shown in Part I., at common law, the
power of the military in aid of the civil power is accurately defined in the
opinions cited (ante, p. 254), and it is strictly limited tothe resistance of
outrage, or the suppression of actual disturbance, or the arrest of offenders.
There is no such thing as summary punishment at common law (unless it
happens in resistance); and although a man is seen to commit a murder, all
that can be done is to arrest him, though he may be killed if he resists.

(0) Videante, p.127. It declared that martial law should prevail, and
that the military should have all the power of exercising the rights of
belligerents against such of the inhabitants as they might consider opposed
to the Government, and the well-being of its loyal subjects. That is, that
the military should be at liberty to exercise the powers and use the mea-
sures of war. And further, the most unlimited discretion was vested in the
military, as to the measures to be taken.
( 309 )

‘it established a definite power (a), called martial law, for a
definite period of time, during which the officers were
authorized to use measures of war at their discretion, against
all they considered to be rebels.

In the exercise of this power, no doubt, the officers en-
trusted with its actual execution had, as their orders were
general, necessarily to exercise a discretion (5), as to matters
of actual number or degree, but then, it was a discre-
tion which, it appeared, they regarded as regulated and
governed, not by considerations of present, instant, visible
necessity, but by considerations of military duty and
authority, their duty being, as they deemed, to carry out
martial law under military uuthority.

Assuming the legality of the declaration of martial law,
then the measures taken and acts done under military
authority, or in the honest pursuance of military orders,
would be lawful, supposing that, as to the measures taken,
they were such as might be measures of war ; and supposing
as to the acts done, that they were such as might be done in

(a) That seems to be the best word to express the effect of martial law,
Tt is not so much a law asa power, stronger than, though including in it, all
law, municipal or military, authorizing all that may be done under ordinary
military law, and much more, because embodying all that absolute mili-
tary power, which may be exercised by prerogative in time of war, and
which only requires statutable authority in time of peace, and of which
only a portion is embodied in the statutable enactments to the Mutiny
Acts.

(0) It did not, of course follow, nor did any of them contend that be-
cause they had power under the proclamation of martial law, to attack
bodies of men who kept aloof and were in apparent hostility, that, there-
fore, they should always under all circumstances do so, or do so rashly,
heedlessly, or inconsiderately ; nor, because they had power to execute
prisoners, if satisfied, on summary enquiry, that they were guilty, that there-
fore they should do so hastily or carelessly; nor, because they had power to
burn huts in which plunder was found, did it follow that they were to do
so recklessly, without any regard to the shelter of women or children; nor,
because they had power to inflict floggings for plunder, &c., did it follow
that they were to do so excessively or cruelly. In a word, they were not,
and did not suggest that they were, at liberty to discard considerations of
humanity. On the other hand, they were certainly not restricted to act
upon necessity, in the narrow sense of instant, present necessity.
( 310 )

carrying out those measures (a). As to such measures and
such acts, it is apprehended the common law is suspended.

Now, under the declaration of martial law, according to
the principles already laid down, the military, that is (b),
under military orders and authority, would have the right
to use all the measures of war against all whom they should
consider rebels (c). And the evidence, in substance, came
to this (so far as regarded the measures taken or acts done
under military order or direction), that such measures were
taken against all whom they considered rebels.

So far as regarded the question of legality, it is con-
ceived that, as the declaration of martial law in terms
authorized the military to use measures of war against
those they considered to be in hostility, the only question
would be whether they, in fact, so considered (d) those

(a) This seems the doctrine laid down by the Judge-Advocate-General
in 1850, in the Ceylon case (vide ante). And as it is difficult to define a
case which might not be a measure or an act of war, it is, no doubt, diffi-
cult to define a case in which a measure taken, or an act done, under mili-
tary authority, that is, in carrying out military orders during martial law,
could be deemed unlawful and criminal, otherwise, it is obvious, there
would be no safety in acting under martial law. This does not apply to
acts done during martial law, but not under it, i.e, not in carrying out mea-
sures directed by military authority or military orders, but voluntarily ;
such acts may, indeed, be justifiable, but it is not by martial law.

(6) As already pointed out, this would only extend to acts done under
military orders; acts not done under orders, must either be justified at
common law, or be the subject of a bill of indemnity. Nothing is more
manifest than that martial law means military authority (vide ante, p. 90).

(c) That is, all the measures which, even admitted and avowed, as
already observed, it is with these alone this work bas any concern, Andif
so taken honestly, however erroncously, against men considered, however
erroneously, to be in hostility, it is conceived that they would be lawful,
though they might still be censurable, on considerations of propriety and
humanity, or rashness, or carelessness, or undue precipitation, &. And
these considerations formed the scope of the Commission.

(¢) Whether rightly or wrongly, wisely or erroneously, if they, as a mat-
ter of fact, honestly and really so considered, for it would never do to make
men’s justification in the exercise of a wide, discretionary authority like
this to depend upon the accuracy of their judgment, or the degree of their
wisdom, it would be contrary to all legal principle to do so. Men are
never held liable for errors of judgment, unless the authority is definite, so
C34

against wham they so acted to be in hostility. So far as
regarded the question of propriety, it would be whether
they used, under the circumstances, reasonable care to
satisfy themselves, or acted according to the rules and
usages of the service.

Assuming, as the General in command and the officers
assumed, and as it is conceived they would be entitled to
assume (a), the legality of the declaration of martial law,
they would be legally justified in all measures taken under
military authority, such as could possibly be used in war,
and in war, not against honourable enemies, who have
belligerent rights, but against rebels, who have no such
rights.

What, therefore, those who have engaged in the suppres-
sion of the rebellion had to look to was, the orders and
directions of the supreme military authority (b), and which
they were not only authorized, but obliged to carry out, to

that excess must be wilful, or at least conscious. But there may, it is mani-
fest, be a great amount of excess, in fact, caused by errors, hardly even
censurable, still less culpable, when the authority to be exercised is neces-
sarily wide, vague, and discretionary. Then the question is, it is con-
ceived, so far as regards legality, did the party, in point of fact, intend to
pursue it?

(a) Vide ante, pp. 55, 74. If the General in command, and the officers
under him, were responsible for the legality of this fundamental act, it is
obvious that no military man would ever act under martial law at all. It
is conceived that acts such as this prove their own legality, like all acts of
State, provided they are such as are within the competence of the autho-
rities who do them, otherwise there would be no security for those who act
under their authority. Now, it is within the competence of the Crown, or
of a Governor or Viceroy, to declare martial law; and it is conceived that,
if he does so, that legalizes acts under it, even although he may be censur-
able by the Crown for the act.

(0) In the emphatic words of the Duke of Wellington, “The will of the
commanding officer.” (Vide ante, p. 109.) Whatever he directed, autho-
rized, or approved of, would, under martial law, be lawful, otherwise it
would be impossible for the officers to know what was lawful, and they
would be afraid to act at all. It must never be lost sight of, that martial
law necessarily involves far more than mere resistance to actual insurrec-
tion, for that may be done at common law (vide ante, p. 29), and the
declaration of martial law involves far more than common law.
( 312 )

the best of their judgment or discretion, according to the
rules or usages of the service. If they had anything else to
consider or regard, they could not act with safety.

The Secretary of State knew that the declaration of mar-
tial law authorized military measures against such as the
military considered hostile. He desired to know what
measures they adopted, and to what extent, and whom
they considered hostile.

These enquiries were pointed to facts, and expressed no
opinion, and their object appeared to be to elicit, not only
information as to numbers, but, what would be far more
important, what rules or principles, if any, had been
adopted, and either embodied in instructions to the officers,
or otherwise (a), so as to guide them in the execution of
martial law, and especially as to the principle upon which
men were attacked and shot in the field, or summarily

executed, who were not found in arms, or in actual resist-
ance.

These enquiries appeared to imply that martial law was
in force, and that such measures might be lawfully taken.
Even assuming that these demands were pointed at the
legality, and uot, as it is conceived they were, rather at the
humanity or propriety of these measures (b), the very

(a) It would, of course, require no instructions, nor any authority, under
martial law, or otherwise, to enable the military to attack bodies of armed
men, who attacked or threatened them. The question would be as to their
attacking those who did not threaten or attack, and the Secretary of State
desired to know on what evidences or appearances, other than hostile action
or attitude, men were dealt with as rebels, and whether those attacked
were resisting or armed. (Vide ante, p. 244.) It is obvious that the answer
to these enquiries must necessarily depend upon the nature of the warfare
pursued by the rebels. On the other hand, it is to be observed that the
military, acting in aid of the civil -power at common law, could not law-
fully inflict death, except necessarily in conflict, or in resistance, or
effecting an arrest; and that there never can be a necessity, in this sense,
for punishment, so that they could never, except under martial law, inflict
death on a prisoner even found in arms, or taken in conflict, or in the act

of committing murder. The despatch, therefore, implied that martial law
was in force.

(4) Their whole tenor appeared to be directed rather to excess than
( 318 )

demand for explanation appeared to imply that there
might be circumstances which would justify the attack
upon bodies of men who were not actually in resistance, or
even in arms, and their summary execution, when taken as
prisoners, if proved to have been active in the rebellion;
otherwise, as the reports abundantly disclosed that there
had been such attacks and executions, the demand for
explanation would have been futile.

The whole tone and tenor of the Secretary of State’s
despatch (a) implied plainly that summary severities might
be justified in the suppression of the rebellion, which could
not be justified, either in the action of the military in aid of
the civil power, at common law, or under the laws of war,
in regular warfare ; for it implied that executions might
lawfully take place, on trial by court-martial, or on more
summary enquiry, on proof of actual complicity in the
rebellion, or that rebels might be, not only attacked, but
executed, if found in arms, or in actual hostility.

legality. Hence they were pointed, first, to:the numbers of those executed,
and next, to the rules or principles by which the numbers had been prac-
tically regulated. Ifno rebels could be attacked or executed who were not
in actual resistance, or in arms for the purpose of armed resistance, then
hardly any of those who had been lawfully attacked or executed. But, on
the other hand, it would be obvious to the Secretary of State, that men
might be committing acts of hostility and devastation, without the use of
arms; and that, if they kept out of the reach of the military, so that they
could not be arrested, they could only be attacked at a distance, by firing
on them.

(a) As to this, vide ante, p. 244. It is hardly necessary to repeat that,
by common law, rebels can only be killed, if it is absolutely necessary and
unavoidable, either in resisting their attack, or in dispersing them, or in
arresting them; but that, if it is possible, they can only be arrested in
order that they may be regularly tried. And it is hardly necessary to say
that, by the law of war, in regular warfare, not only are soldiers not liable
to be executed if taken in arms, but, on the contrary, the being taken in
arms and in regular warfare, rather entitles them to be treated as prisoners
of war, and reserved for exchange or release; and it is, if anything, the
being taken not in arms, but in acts of private depredation, arson, or rob-
bery, not under military orders, but as marauders and stragglers, which
renders them liable to be shot, or otherwise executed. And the Secretary
of State plainly implies that rebels so taken might be so dealt with.
( 314 )

The primary question would be as to the lawfulness or
legality of these acts (a), but the enquiry by the Crown would
have a far wider scope than bare legality. Acts might be
lawful and yet censurable, and even culpable, though they
could not possibly be criminal. There might be an immense
amount of excess—in what was lawful—excess not even
censurable, still less culpable, arising from false infor-
mation, exaggerated alarm, apprehension, or the exigencies
and excitement of the time, &. All this, and the facts
showing or excusing it, would be within the enquiry.

The enquiry would be into facts, but every enquiry into
facts must necessarily have reference to some objects of
enquiry, as facts relevant with reference to one object of
enquiry may be wholly irrelevant as to another. The
scope of the enquiry, it will be seen, would be larger than
the legality of the “measures taken,” or of the “conduct
of those engaged in the suppression, for it would also
embrace their propriety. Measures taken might be legal,
yet censurable, and the conduct of those engaged might be
lawful (6) and yet culpable; though, if in persuance of orders,
or in exercise of lawful military authority, they could not,
under martial law, be illegal or criminal. And _ there
might be a great degree of excessive severity, which in a
sense would be unlawful, though it would not be criminal.

(a) It has already been shown, that mere excess in the exercise of a
discretionary power (that is supposing its exercise honestly directed, how-
ever erroneously, to its real object, and not the result of indirect motives
or ends, unconnected with the suppression of the rebellion) would not
make the whole proceeding unlawful, that is, would not take away the
authority. And, asin the case of martial law, the authority, so long as
martial law exists, is discretionary and continuing, the mere fact of the acts
being excessive, honestly though censurably, would not make them un-
lawful.

(b) As already shewn (vide ante, p. 310), excess does not render acts
done under lawful authority illegal, unless the excess is wilful, or
consciously wrong, as it is in cases at common Jaw, but not so under martial
law, where the power is not definite but discretionary, and there may be
an immense amount of excess caused by error of judgment, false informa-
tion and exaggerated apprehensions, &c. not necessarily even culpable, and
certainly not criminal.
( 315 )

In short, it seems that as the true scope of the Com-
mission was to inform the conscience of the Crown as to
the conduct of its officers in the discharge of their duty,
which could hardly be wholly unlawful, though some
excessive severity might be, but might be culpable, though
lawful, and censurable, though not criminal ; the true scope
of the enquiry, under this head, was rather the moral (a)
than the legal aspect of their conduct.

The same conclusion would appear to result from the
terms in which the Secretary of State himself (5) in his
despatch, announcing to the Governor his intention to
institute the enquiry, indicated its scope and province,
which appeared to be directed entirely to the moral character
of the proceedings, and to the question of approval or dis-
approval of the conduct of the officers of the Crown in
the discharge of their duty.

The scope of this work is the legality, rather than the
propriety, of the measures taken under martial law (c),
but it is conceived that it is part of the Jaw of the
subject, that the propriety of the measures taken or

(a) This would explain the introduction of a vast amount of evidence
otherwise wholly irrelevant.

(6) Despatch of Mr. Cardwell.—In conclusion, I will only repeat, on
the part of Her Majesty’s Government, that, while we feel it to be our
imperative duty to institute this enquiry, we desire by every means in our
power to guard against in any way prejudging its result. Our earnest
hope is that the result will be to satisfy us on the points on which it is
necessary for us to be satisfied, and at the same time to exhibit the conduct
of those whose duty has compelled them to take part in those proceedings,
and to whom the suppression of the outbreak is due, in a light consistent
with their position and character, and especially, in your own case, with that
high character for courage and humanity for which you have always been
distingnished.” The phrase “character” clearly points to the humanity and
propriety of the measures taken, not their absolute legality.

(c) The two questions are practically connected in this way ; that those
who believed the measures taken, or acts done, to be illegal, would be
very apt to think them unjustifiable and morally wrong; certainly would
be more easily induced to think them so, whereas, all would admit that the
presumption is in favour of the exercise of lawful authority, especially
when it is in its nature discretionary.
( 316 )

the conduct of those engaged in them, would, assuming their
legality, properly be a matter of military judgment (a).

And assuming the legality of the declaration of martial law,
as it in terms established a discretionary military authority,
it is conceived that not only it legally justified all acts
under military authority (except such, if any, as could not
possibly be justified), but that the exercise of such discre-
tionary authority could not properly be reviewed by any
tribunal, not military (6).

The Secretary of State, by his enquiries, addressed, as
they were, either through the Governor or through the
Commissioners, to the military officers themselves, showed
his sense that the considerations, even of propriety and
humanity, to which, it is conceived, they were mainly
directed, must depend a good deal on military considera-
tions (c); wpon considerations arising out of circumstances,

(a) As the House of Lords held in Sutton v. Johnston, in case of war.

(6) The reasons given for this, in the judgment of Lord Mansfield, in
Sutton v. Johnston, 1'T.R., equally apply to any enquiry, for the measures
to be taken must necessarily depend on the judgment to be formed at the
moment, under the circumstances, and with the information, and the means
of observation then attainable, and the impressions then derived, true or
false, right or wrong ; so that measures taken to-day with perfect propriety
may to-morrow turn out to have been wrong in fact ; and severities which
to-day seem necessary or expedient, may to-morrow be found to have been
in fact excessive, but without the least blame to those who directed the
measures, so that an enquiry long afterwards, even a military enquiry,
may be unfair, and other than a military one, must be so.

(c) Measures, it is manifest, might, to laymen, and after the event, and
at a distance, especially as described in hastily written reports, appear to
have been unnecessary and inhuman ; which at the time, to military men,
and under the circumstances and appearances by which they were sur-
rounded, might have appeared very necessary and prudent. And it ia
obvious also, that as the humanity and propriety would depend upon the
necessity or expediency, so that is a necessity or expediency in a military
point of view at the moment, and under the circumstances and appearances
of the time and place. Anda measure might appear, and on the circum-
stances as they appeared, might be, in a military point of view, necessary
and expedient, which might, in fact, as it afterwards turned out, have been
unnecessary ; in which case it is obvious, that the real facts or ultimate
results could not possibly affect the propriety of the acts.
( 317 )

as they appeared to the officers themselves at the time, not
as they turned out in the event to be. And therefore it
was, that he afforded them the opportunity of offering these
explanations,

The measures to be taken under martial law were
military measures, to be taken entirely under the military
authority. This would result, necessarily, from the declara-
tion of martial law, which, in terms, declared (a) that
the military forces should have the power of exercising
the rights of belligerents against such of the inhabitants
as the military forces might consider opposed to the
Government, and the well-being of its loyal subjects.
The nature of the measures, and against whom they
should be taken, rested entirely with the supreme military
authorities.

The primary enquiry of the Secretary of State had been
as to any general instructions issued to the officers as to the
manner in which they should carry out martial law. The
first enquiry under this head was the measures taken, which
would be the measures directed by those in supreme
military authority. The first question, then, would be, as
to the supreme authority under martial law (0), as to which

(a) The officers, therefore, who were engaged in the suppression had to
take for their guidance the orders given, or measures expressly or implicitly
directed, by the Genearl, the supreme military authority. It was not for
them merely to act according to their own idea of present necessity in their
judgment, though no doubt that might guide them as to measure and
degree, and manner of action; but they had to act under the direction of
a supreme military authority, who had to consider necessity in a far larger
sense, and with reference to the position of the whole district, and in some
respects of the whole island. And as long as he sanctioned measures of
severity, it was not for them to stop them. Nor was it a question of neces-
sity in that narrow sense of the word at all, as it is at common law, when
the military are merely acting in aid of the civil power; but of expediency,
with a view to the general object of putting down the rebellion.

(6) Thus the Attorney-General stated that the Governor has instructions
as Captain-General, but the Governor makes the requisition for troops, and
the General carries it out in detail. “Iam of opinion that the Governor was
the supreme authority during martial law—my opinion is, that as soon as the
Governor gave orders to the General to go to the proclaimed districts, the
( 318 )

it appeared clearly, both upon legal and military authority,
as would also be clear upon principle, that the supreme
authority was the General in command of the forces in the
field ; and any orders or instructions would properly
emanate from him,

Upon this fundamental point, as to the supreme autho-
rity, under martial law (a), the evidence of the General
in command showed that he considered himself invested
with supreme authority in the declared district, and took
such measures, whether in the field or by court-martial, as
he deemed proper, though no doubt receiving the sugges-
tions of the Governor. And the evidence of the Governor (6)
was to the same effect.

Governor was relieved of the personal responsibility, and that he handed over
the districts in question to the military. I regard the General in the field as
being the supreme military authority.” Though the Commander-in-Chief,
General O’Connor, spoke of it as a question on which lawyers were divided,
his own conduct showed that he did not deem it doubtful, for he and the
General in command within the district, declined to try prisoners by court-
martial, whom the Governor desired to be so tried, but whom they con-
sidered not to be within their jurisdiction. (Vide ante, p. 174.) This was
the view taken by the General in command, and it seems clear upon
principle ; for martial law being a state of war, who should be supreme in
the district but the military commander? That seems the nature of
martial law. The Governor, no doubt, is supreme as to declaring martial
law, and as to the general disposition of troops on the island, but as to
particular military measures the General is supreme. (Vide ante, p. 128.)

(2) Thus, General Nelson said:—“ Having made all arrangements, I went
into the town of Port Antonio, asan attack was expected from that quarter.
Some rebels were executed at Port Antonio, which place, as well as Morant
Bay, I considered in possession of the enemy. Being engaged in making
military arrangements, I did not issue any orders for the mode of carrying
out executions till the 22nd. His Excellency said, after proposing certain
steps, ‘I shall be happy to make or facilitate any additional arrangements
which the Brigadier-General may consider desirable.’ I did not carry out all
the proposed arrangements, because I considered that I, being in command
of the troops, was responsible for all military dispositions. I gave no direc-
tions to any one, as to how they were to act during martial law, as I
understood that the supreme power was vested in the military.’ ”

(0) Thus, Governor Eyre stated in his evidence, that he had given
no directions ; but he laid down, for the guidance of the officer in com-
mand, a statement of the general policy to be pursued, and so long as he
was with the troops, he directed most of their operations. During that
( $19 )

As the declaration of martial law authorized the mili-
tary to take the measures of war, against those whom they
might consider opposed to the Government, all such mea-
sures of war became lawful, and the question, what were
measures of war, and who were to be considered as rebels,
were necessarily military questions, to be governed either
by express orders and direction of the General, or by the
usages of the service in like cases (a).

In the view of the General in command, it was manifest
that, under martial law, the rule of action was far more
definite than mere necessity (6), with reference to actual
resistance, which would involve no more than might be
done at common law, unless it was taken, not in that

period he saw the greater number of the reports furnished by the officers
commanding datachments; but he had seen very few since, and allhe had
received had been sent to her Majesty’s Government. Mr. Eyre stated he
gave Brigadier Nelson a memorandum of the stations which he thought
it most desirable to occupy, and added a recommendation, that the Maroons
should scour the hills and cultivated settlements, and drive in, capture, or
cut off the leading rebels—a step which he considered necessary before an
amnesty could be declared. (Vide ante, p. 135.)

(a) This was evidently the view taken by the gallant President of the
Commission, for, in the examination of one of the officers, he put this as the
governing question, “ During the time your detachment was out, were they
brought under control according to the usages of the service?” (Hv. of
Lieut. Adcock). That is, were they kept under orders, as for instance, in
regard to firing, which should only be under orders, and so as to other
matters. It appeared from this that, in the view of Sir H. Storks, the usages
of the service, coupled with military orders, formed the only rule. And it
is conceived that this, which is the view to be found laid down in Simmons
on Court Martial, was the true view, and that therefore the question of the
propriety of the measures taken, was, at all events, primarily, a matter of
military judgment. (Vide ante, p. 316.)

(8) At common law, this is confined to self-defence, or the resistance of
actual outrage, or the arrest of offenders. An officer, in arresting a man on
a charge of felony, may, if he resists or flies, and if it is necessary to defend
himself, or prevent the flight, may kill him, andif it is necessary to prevent
an act of felony, any one may kill another. But necessity, in this sense, is
strictly limited, and in that sense, of course, it never could be necessary to
killa rebel, except in combat, or to execute any one on sentence by court-
martial, or to have a court-martial at all. But the General himself did
those things, and approved of such acts by the officers,
( 320 )

narrow sense, not of necessity present and imminent, but
the larger sense of necessity with reference to the sup-
pression of the rebellion, which must depend upon the
judgment of the General in command, and, therefore, in
his view, the measures to be taken were the measures
directed or approved by him.

Whether or not martial law had been properly declared,
it was not, as he considered, for the military Commander
to judge, nor the officers, whose duty it was, under his
direction, to carry it out. They assumed its legality, and its
operative effect (a), and they deemed themselves bound to
carry it out; and as it implied a state of rebellion, and all
the appearances they observed indicated it, their measures
were directed in accordance with the declaration of martial
law, not merely to meet resistance, but to suppress re-
bellion, and they deemed themselves bound to take all such
measures, aggressive or deterrent, as should attain that
object.

The officers considered themselves not only authorised, but
compelled by their orders to carry out martial law, that is,
military measures, until directed by the General to abate
those measures, and did not consider it was for them a
question of necessity (6), but of military authority. But,
on the other hand, none of them deemed that their orders,
through a legal justification, justified them in disregarding
considerations of humanity ; on the contrary, they sought

(2) This, in terms, declared that the military should have all powers of
exercising the rights of belligerents, that is, of using all the means and
measures of war against such of the inhabitants as they might consider op-
posed to the Government and its loyal subjects. This was in the hands of
the Secretary of State when he wrote his despatches fur enquiry, as it
reached him with the first despatch of the Governor.

(b) If it were a question of necessity (as it ¢s when the military are
acting in aid of the civil power at common law, vide ante, p. 63), none of
their measures could legally be justified, except in one or two cases of actual
encounter (vide ante), for it can never be necessary, in the strictest sense, to
attack men unless they are actually epgaged in felonious outrage or insur-
rection, and it can never he necessary to execute a prisoner. But the necessity
for martial law was for the Governor.
( 321 )

by their evidence, to show that they had to the utmost re-
garded these considerations. And whether they had done
80, it is conceived, formed the scope of the enquiry.

The scope of this work being legality, and all questions
of legality being fully raised by the statements of the offi-
cers themselves (a), there is no necessity to enter into
matters of disputed fact (5), nor, on the other hand, to enter
into circumstances (¢), which would go rather to the pro-
priety than the legality of the measures taken, or the acts
committed.

The main importance of the enquiry lay in its bearing
on the general questions raised by the Secretary of State,
as to the general mode of carrying out martial law. And
of the general questions thus raised by the Secretary of
State, the fundamental question was as to the rules or
principles upon which it was determined who should be
deemed to be in hostility, and liable to the severity of mili-
tary measures.

As to this important question, some points were settled
satisfactorily and without difficulty. In the first place, it
did not appear that the military authorities considered that
the primd facie (d) presumption arising against a man from

(a) Who avowed the attacks on parties of men supposed to be rebels,
the execution of prisoners, whether on summary enquiry or by sentences of
courts-martial, the inflicting of floggings and the burning of houses, so far
as these acts were committed under their orders or directions ; as to such as
were not so committed with their orders or directions, they were not
within the scope of martial law, and so not within the scope of this work.

(4) Which occupied nine-tenths of the time of the Commissioners, with
little practical result, as for reasons already referred to, all that was really
reliable was contained in the statements of the officers or of disinterested
persons,

(c) As to the mode of inflicting capital punishment in some circum-
stances, and which, no doubt, if designedly altered for the purpose of tor-
ture, would be illegal; but all these matters were denied as regarded the
officers.

(d) It was true that the General in command avowed before the Com-
missioners that prima facie he regarded every man in the district (z.e., not
with the authorities), as a rebel, and the reasons have already been given
for conceiving him to have been right in that presumption. But, on the

Y
( 322 )

his being in the declared district, and not with the Crown,
justified any military measures against him beyond mere
arrest upon suspicion.

In the next place, it appeared that, so far as regarded the
orders of the officers, or the measures they approved of or
directed, they did not consider even the possession of
plunder /a) sufficient to warrant capital execution or attack,
unless from its nature, or other circumstances, it raised a
strong presumption, amounting, if not rebutted, to sufficient
proof of actual and active complicity in the rebellion, and
the acts of outrage which accompanied it.

And further, it appeared that men being in bodies
together, within the district in rebellion, though it was
deemed primd facie an evidence of hostility (b), would not

other hand, it was manifest from his acts and those of the officers, that this,
per se, was only looked upon as a basis on which, from other circumstances,
such active participation in the rebellion might be presumed, as would
justify measures of military severity. And it was obvious, that the prima
facie presumption was always, practically, either aided or rebutted by the
circumstances under which men were met with, in bodies, in the bush, with
arms, or with those who had arms, ip the immediate neighbourhood of
scenes of devastation or of outrage, at which it was manifest they must
have connived and probably that they had assisted, and so forth. And thus,
in such passagesas that in Capt. Hole’s report (vide ante, p. 235), withina
mile of, a3 every rebel who could not give an account of himself wasshot,
were explained by the context, and by the evidence upon this principle, 2.e,
that the officer found himself in a place which had been the scene of such
widespread devastation, so as to raise a strong presumption against any
negro in the immediate neighbourhood, who could give no account of him-
self to rebut that presumption.

(a) This was remarkably illustrated, even in those reports which had
created most sensation, as, for instance, the report of the officers in com-
mand of the volunteer force (ride ante, p. 242). For, it there appeared, that
for the mere possession of plunder, men were only flogged. See also the
evidence of Capt. Ford, Lieut. Adcock, and others, in which it appeared that
the distinction was always drawn between meré possession of plunder, and
proof of active participation in the rebellion. The Secretary of State had
drawn attention particularly to this, wide ante, p. 244.

(b) As certainly it might fairly enough be considered, especially when
it is borne in mind that such bodies of men were always met with ina dis-
trict which had been the scene of widespread devastation by bodies of men,
of the same colour, race, and class, within the few days previous, or on the
( $23 )

warrant military attack or execution, if the men in such
bodies were either willing to submit or surrender, or
were near enough, to see if they were armed or whether
they would surrender ; or could be got at, to capture them
if they would not; but, that such bodies were only fired
at, or attacked under such circumstances and conditions
as appeared to preclude any other course.

That is to say, in cases of bodies, where men were
met with under such circumstances, in a district the scene
of widespread devastation, who might, or might not, be
armed, but who were presumably engaged in a warfare car-
ried on by means of devastation committed without arms;
bodies of men who would not submit or surrender (a), nor
come near enough to be compelled to, or to be captured,
and who must either be fired upon at a distance, or be
allowed to escape all military measures whatever.

This would depend, it is obvious, greatly upon the nature
of the warfare carried on (b) by the insurgents, and the
number engaged in it (c); and thus it was that this part
of the enquiry, as to the measures taken in the suppression,
was so closely connected with the former head of enquiry,

preceding day, or perhaps on the same day. And it would be very im-
material whether they were or were not actually armed ; their numbers
made them more formidable than smaller numbers armed (vide ante,
p. 12-16), and if they were going about partly to obtain arms, and if they
carried on their irregular warfare by means of arson and plunder, and by
the terror of their number, they would certainly be in hostility.

(a) It did not appear that any who submitted or surrendered were, with
the sanction of the officers, subject to execution or punishment, unless upon
enquiry found guilty of crime ; and even this rarely occurred, because it
is obvious that those who were conscious of guilt would not surrender, and
the great difficulty lay in their pursuit and capture.

(b) Considering the numbers of negroes who engaged, during several
ensuing days, in actual rising, and acts of armed rebellion, at distances of
ten, twenty, thirty, or forty miles from the seat of the original outbreak,
there was ample ground to believe that some thousands of them must have
been actively engaged in the rebellion, and acts of outrage, which
accompanied it ; and these, of course, would represent a much larger number
participating in it secretly.

(c) There were from 600 to 800 at the original outbreak at Morant Bay,

y¥2
( 324 )

as to the nature and circumstances of the disturbances. For
the nature of the measures taken, must depend on the
nature of the warfare to be encountered. And there wasa
great deal of evidence on this head, as to the numbers en-
gaged, and the course of hostility they pursued, which,
it appeared, was irregular, and ambulatory, and predatory,
large bands of men, committing depredations, and then on
the approach of the military, sheltering themselves in the
woods, where they could not easily be followed, and could
hardly be captured.

To receive the answers and explanations of the officers,
upon their enquiries, was the main and primary object of
the Commission under this head of the enquiry, “the
measures taken for the suppression of the rebellion, and the
conduct of those engaged in it.” And the nature of their
answers aud explanations was necessarily closely connected
with the first head of enquiry, as tothe nature of the dis-
turbances. For they rested mainly on the nature of the
warfare in which they engaged, and of the rebellion they
had to suppress (a), and the necessity of their measures, not

and bodies of 300, 400, 500, or 600, were engaged in subsequent risings at
Bath, Moncklands, Manchioneal, Port Antonio, &c., or places at 10, 20, 30,
40 miles from Morant Bay. The aggregate number who thus, at great
distances within a few days, took part in acts of outrage and of armed re-
bellion, could not be less than between three and four thousand, and perhaps
it would be more near the truth to say between four and five thousand.
This would represent, in all probability, only those that were actually engaged
in the rebellion, not all those who were in complicity.

(a) It would be manifest that, if the rebellion had been one which was
carried on, as in regular warfare, by means of armed encounter in the field,
then the military measures to be taken for its suppression would naturally
have the same character, and would be pointed rather to the use of arms,
and against actual resistance. But if, as appeared on the evidence, the
rebellion was rather of an ambulatory and predatory character, carried on
by large bodies of men who, whether with or without arms, by means of
arson or plunder, spread devastation wherever they went, and sought to
avoid the military by taking refuge in the bush, so that they could with
difficulty be followed, and often could only be got at by firing on them ata
distance, it would be obvious that the measures to be taken must be
entirely different.
( 325 )

indeed to meet resistance, but for the suppression of th
rebellion.

With regard to the measures actually directed by th
orders issued, or directions in any way given, by the Genere
in command, to the military officers, it appeared, a
already shown, that these were quite general ; and that, fc
the most part, there were no particular orders issued to th
officers in command of detachments, who were sent out t
attack, rout, and capture the rebels, and were left a gree
deal to their own discretion (a).

The first question that would arise as to the measures {
be taken would be, who should be deemed rebels, or wh
should be attacked or arrested as such. The first orders, :
to the movements of the troops (b), were based upon tk

(a) Thus the Commander-in-Chief said he had given no particul:
order to the officer; it would have been absurd to give him instructior
When asked, if he gave him instructions about dealing with the prisone
whom his success enabled him to capture, Major-General O’Connor sa
he had not given any other instructions on the subject, than those co
tained in his despatch of October 20 (vide ante, p. 151), the effe
being that he was to hold a summary investigation on the spot, and ex
cute or punish those whose guilt was clear, and release those who appear
to be innocent. That rebels were all around him; and it would have be
impossible to give instructions from Kingston as to how Colonel Hob
was to act in Mahogany Vale, under such circumstances. His duty,
course, was to attack the rebels. The General in command, in like ma
ner, merely sent out detachments to different directions to surprise
attack the rebels, leaving their course of action very much to their disc
tion. (Vide ante, p. 148-149). So Colonel Hobbs stated, “ When I start
on the expedition, I had no instruction as to the manner I was to treat t
population—executed and flogged rebels for being found in arms, and {
plundering, on the clearest evidence ; the proclamation of martial la
authorised me to punish rebels—did not punish anyone on the mere e
dence of plundering, but being found in arms and taking part with,
going to attack persons with a view of taking life, as in the instance of
men, stated to have been executed for a felonious attack on the house
one Patterson, with the view of killing him, if they could find him.

(b) Which were simply to go in every direction where outrages had be
committed, and where, therefore, it was supposed, or in the immedi:
neighbourhood, rebels would be found. Thus, in the sense primar
used, the word “rebel” meant men actually in insurrection, actua
committing felonious outrages, actually going about in bodies to comn
( 326 )

supposition that bodies of men were about, as for several
days they were, in actual insurrection, and engaged in actual
perpetration of felonious outrages; if they could be met
with and attacked in the act, of course the case was clear,
and indeed would not strictly require martial law at all.
The General in command avowed, before the Royal
Commissioners, that he considered the whole of the able-
bodied population of the declared district to be primé
facie rebels, because the entire district was declared to be
in a state of rebellion (a) ; for this, he considered, was the
basis of martial law. He considered himself, he stated, as
in an enemy’s country, and regarded every man he met,
not aiding the Crown, as prima facie an enemy and a
rebel, that is, unless circumstances showed the contrary.
But, in point of fact, the question never did, and hardly
ever could, arise in an abstract form, for men were met with
always (b) under circumstances which aided or rebutted this

them. As soon, however, as the military began to be active, these actual
outrages ceased ; but, as they ceased, it was obvious, only from temporary
panic, and on account of the actual presence of the troops, the men who
had first been engaged in actual insurrection, and had been committing
felonious outrages, and who would recommence their career of plunder and
massacre as soon as the troops were exhausted or withdrawn, were not
the less rebels, and not the less in hostility.

(a) If not, he said, he presumed that martial law would not have been
declared, and no doubt that is so in theory. The great body of the popula-
tion, the whole population, as a body, are deemed to be in rebellion. The
extent to which this theory is realized in actual fact, depends necessarily upon
the nature and circumstances of the rebellion, and the probable number, or
apparent proportion of the population engaged in actual insurrection, or in
secret complicity or sympathy with it. In this case, it must be borne in
mind that it was the rebellion of a race, comprising the great mass of the
population, and of course the General meant his proposition only to be
understood as applying to men of that class. Moreover, the number of
negroes engaged in outrages, at many different and distant places, was so
great that there must have been thousands actually engaged in the insur-
rection, so that the probability was that men seen about were guilty.

(6) For instance, they were almost always met with in bodies, which of
itself, in time of rebellion, raises a presumption of hostility ; then they
would be met with in the bush, or in the neighbourhood of places sacked
and devastated, and also in the neighbourhood of huts deserted, and having
( 327 )

primé facie presumption, and tended to satisfy the mil
tary as to whether or not they were to be considered “:
hostility,” within the declaration of martial law. And ev
dence was entered into as to the circumstances and con¢
tions under which men were met and dealt with.

It appeared that, so far as they possibly could, ar
wherever they could, the military endeavoured to attac
the rebels in the very act of felonious outrage, or of arme
insurrection ; but as it was from the first the object of tl
rebels to avoid such encounters, the military, with all the
promptitude, could only, in two or three instances (a), su
ceed in thus attacking them in the act; and, with tl
exception of such deaths as were caused in those actu
encounters, all the acts committed by the military, beyou
actual resistance, and the mere arrests of prisoners, were, :
common law, illegal and unjustifiable.

Unless, therefore, the declaration of martial law auth
rized them to do more than this, it authorized them to c
nothing (6), and was, in fact, a futile formality, an empi
and unmeaning form. If, on the other hand, it was an:

in them plunder or arms, &c., the inhabitants of which were out som
where, and had evidently withdrawn to avoid the military. Then the m
would stand aloof from the military, instead of coming forward to st
render, or seek their protection.

(a) In one instance only did the troops catch rebels in the very act
outrage, as at the house of Mr. Duffus. (Vide Lake’s report, ante, p. 144
And in only two instances did it appear that the rebels had actually m
the military in armed encounter. (Instances stated by Colonel Fyfe ai
Colonel Hobbs.) In all other cases the military came, indeed, hot up:
the traces of the rebels, but found that the rebels had fled before them, ai
taken shelter in their natural fastnesses, the forest, or the bush, or t.
mountain. And this, in fact, was the great difficulty the military had
encounter. (Vide ante, p. 136, 165, 167.)

(6) For anything that could be done by the military at common law,
course, would not require a proclamation of martial law, and it would
idle to announce, by a formal proclamation, that which would be leg
without it, and worse than idle to announce what would be illegal, ev:
under it. But the military authorities well understood the differen
between their action in aid of the civil power, and under it, and their inc
pendent action under martial law. (Vide ante, p. 180).
( 828 )

thing more than a mere unmeaning form, and had any real
legal force and effect, it authorized the military to do all
that it purported to authorize,, viz, to use military mea-
sures against all whom they considered to be in hostility.

The officers, notwithstanding certain passages in their
reports (a), which had appeared to imply or suggest such a
course, did not in their evidence avow, or attempt to vin-
dicate any measures of indiscriminate attack upon the
population in the declared district, but, on the contrary,
disavowed it, and attempted to show, that in every case in
which they had allowed or ordered attack, it was under
such circumstances as might suggest to military men the
necessity or expediency of such a measure (0b).

It is important to bear in mind that, under this head of
enquiry, as to the “ measures taken,” and “the conduct of
those engaged,” the enquiry would necessarily turn, not so
much upon matters of fact, as they actually were, as upon
the circumstances and appearances, as they presented
themselves at the time(c) to the officers thus engaged.
This must necessarily be so of military measures; and,

(a) The principal passages which were supposed to suggest this were, that
in Captain Hole’s despatch, “every black within a mile, who did not give an
account of himself, was shot (wide ante, p. 234); and that in Captain Ford’s
private letter, “if they fly they are shot,” &c. (Vide ante, p. 242.) But
as to the former, the officer endeavoured to show that, under the circum-
stances, the presumption was that any black within a mile (e., within a
mile of a place which had been devastated), had been engaged in the rebel-
lion; and as to the other case, it only referred to the course taken by a
particular detachment, and a detachment of volunteers and civilians, or of
black soldiers; and it was remarkable, as already observed, that most of the
alleged excesses, at all events, so far as established in evidence, were com-
mitted either by volunteers or by blacks.

(b) It is not material, for the purpose of this work, whether they suffi-
ciently established this, in point of fact.

(c) Thus, whether bodies of men in the bush, or at some distance, were
more or less numerous, or likely to be armed, or whether they were lurking
there; and whether, if allowed to remain there, they would be dangerous;
and whether they could be got at and captured ; or whether any measures
could be taken to dislodge them, except to fire at them, would all be ques-
tions essentially military, and dependent upon personal observation.
( 329 )

moreover, many of these circumstances and appearances
would be matter of personal observation, and such as could
scarcely be conveyed by oral description to others (a), espe-
cially to laymen, least of all, perhaps, to lawyers. And,
further, the propriety of the measures taken upon such
appearances could not be judged of after the event, by the
actual facts, as they afterwards appeared.

The nature of the measures to be taken for the sup-
pression of a rebellion must, it is manifest, necessarily
depend on the nature of the rebellion, and hence the close
connection between this head of enquiry and the former,
as to the “nature and circumstances of the disturbances.”
If a rebellion were conducted mainly by means like those
of regular warfare, as by encounter of armed bodies in the
field—measures similar to those of regular warfare might
be sufficient. But if the rebellion were of a wild marauding
character, conducted by hordes of men, armed or unarmed,
—whose power was rather that of numbers than arms (6),
and who avoided encounter in the field—then measures
must obviously be wholly different.

It was manifest (c) from the evidence that the detach-

(a) The features of the ‘country, for example, or the cover afforded, or the
numbers of men lurking in the bush. There were many passages in the
reports, referring to such features of the country. The defile at Stoney
Gut, for instance, three miles long (see despatch of Colonel Hobbs), or the
bush (see report of Lieutenant Adcock).

(6) It had long ago been pointed out by our old lawyers—in expounding
that branch of the law of treason which relates to the levying of war
against the Crown in cases of rebellion—that there might be as much of
danger and of terror caused by numbers as by arms. It is manifest that
100,000 men, armed with scythes or reaping hooks, may be as formidable
to 1000 men, as the smaller number could be, armed with deadly weapons.
And the numbers would speedily arm themselves by seizure of the arms of
thoge they overwhelmed. And if a party of 100 men visited a house or
an estate in search of arms and to murder the inmates, it would matter
mighty little whether they kad arms or not. ;

(c) Evidence of Mr. Warrington, magistrate of St. Thomas in the East,
and manager of acotton company at Manchioneal. “On the 15th we went to
Port Antonio, We saw a lot of refugees aboard the barque Reunion ;
we passed along the coast of Manchioneal, and saw every place destroyed,
( 330 )

ments, marched and acted, amidst all the traces of a ruth-
less rebellion, seeing on all sides of them houses of the white
proprietors sacked, and gutted, and destroyed; and the
huts or houses of the negroes filled with plunder, evidently
taken therefrom, which of course was strong presumptive
proof that the negro inhabitants had been concerned in
these outrages.

So it appeared that, as had been from the first expected
would be the case (a), the bands of men engaged in this

On the 15th accompanied the 6th Regiment as guide across the country.
We marched as far as the “ Castle,” 12 miles along the coast to Mulatto River.
Saw in front of several places traces of lawlessness; saw some of my own
property destroyed and scattered about. The distance was about 40 miles
round the road to Morant Bay. We went on to “ Coy Hall,” about a mile
from Morant Bay; found negro huts filled up with plunder; there were
a number of occupants; they said, before we went in, that they had
nothing to do with what had taken place, and that they had nothing in their
huts. We went in and found to the contrary. They were ordered to
come out; pulled out some of the stolen property, and fired the huts.
Nothing was done to the occupants. On Sunday we saw Mulatto River
House, it was burnt; passed “Kensington,” the house of Mr. Foote, and
found it gutted. On Monday we marched to “ Muirton;” saw places
gutted, and one house burned. Three or four stores were gutted. The
Court-house was smashed to pieces; found nothing touched at Muirton
Estate. We stopped there. A small party was detached, and went to
Williamsfield. And so on everywhere. So Lieutenant Adcock, describing
the same, stated that he found the houses on the estates sacked and
gutted, and plunder in the huts in the district. Gold watches and sticks
stained with blood, &c., told the tales; found Moncklands very much
wrecked by the rebels, &c. Manchioneal had been regularly sacked as by
an invading army.

(a) (Vide ante, p. 164). Thus Captain Hole:—“ When I reached Man-
chioneal, I heard reports that the rebels had only withdrawn for reinforce-
ments, found every house deserted,” &. So Lieutenant Adcock, “As I
passed through the villages, about 300 rebels rushed through the bush,
armed with cutlasses. Saw about 50 at Beckford, rushing from all direc-
tions into the bush. I was told that the villages, I was passing through
were full of rebels, and that these places were their strongholds.” Similar
passages abound in the evidence of the officers. So when Colonel Hobbs
wrote that thousands of rebels were around him, he wrote what was really
the natural inference from, and the general result of, the appearances he
observed, and the facts which were undoubted. As thousands had been
( 381 )

irregular and barbarous sort of warfare, had, on the ap-
proach of the troops, betaken themselves to the woods; the
officers represented that they were led to infer from these
circumstances, and from the reports they received, and from
the appearances they observed, that large numbers of
rebels,—that is, of those who had been engaged in these
acts of rapine,—were lurking in the bushes around them.

The officers, finding numbers of men, under these cir-
cumstances, in the bush, in a position which would afford
them such advantage for shelter and for attack, and find-
ing that, in some instances, they were armed, and believing
from what they observed and heard, that they were lurking
there to renew the insurrection after the military should be
withdrawn, considered that they were in hostility; and
as it was impossible to get at them to capture them, per-
mitted the troops to fire at them (a), as the only practicable
way of dealing with them.

Evidence was given (6), in confirmation of the reports of

engaged in these outrages over a space of 40 miles, they must be some-
where ; and would probably be those in the bush, not far off.

(a) Thus Captain Hole, in his evidence stated, that he saw men in the
bush, that he heard they were gone for reinforcements, &c. He said his
attention was drawn to men loitering in the bush, and he saw two or three
soldiers run into the bush, and heard three or four shots fired ; he saw three
bodies lying on the road, and made enquiries about them; prisoners were
brought before him at Long Bay, one was found in the bush with a flask of
gunpowder upon him, he was tried in the same manner as the others; went
on to Cog Hall, where he expected resistance, but found no one there ; there
was bush on either side of the way, and he made preparations for a regular
attack, as he expected one; sent out askirmishing party, and heard several
shots. So Lieutenant Adcock stated that as he passed through the villages he
heard and saw bands of rebels rushing into the bush, or through the bush.
( Vide ante, p. 330). In two or three instances, it happened that, under these
circumstances, innocent persons were killed by accident. Thus, in the above
case, Captain Hole states, two, he was informed, were rebels, and the other
was an innocent man ; the two were running away from the advance guard,
and the third man came out of his house and ran across to stop them, and
the three were shot. So Colonel Fyfe’s detachment accidentally shot a
woman in the bush. Such accidents always happen when the military act
in this country.

(b) And Colonel Hobbs reported on October 16, from Moncklands:—“ I
( 382 )

officers at the time, that they had reason to believe, from
the reports they received, and from the symptoms they
observed, that the cessation of resistance was by no means
the cessation of hostility or rebellion; but that the rebels
were merely running from place to place, and lurking in
the woods and mountains, to avoid an encounter with the
military, and in the hope of renewing the insurrection
when they should be exhausted or withdrawn.

According to the evidence of the officers engaged in the
suppression of the rebellion, when the acts of armed insur-
rection ceased, the rebellion threatened to assume the most
dangerous phase (a) which a rebellion can possibly assume ;
that in which the rebellious population betake themselves
to their natural fastnesses, and lurk in the forest or the
bush, avoiding encounters with the troops, until, when
they should be exhausted or withdrawn, they may renew
the insurrection in safety.

hope to make a forced march to Stoney Gut, in this parish, where the rebels,
driven westward by General Nelson, have assembled in great force, and
where they have a large supply of gunpowder, arms,” &c. He gave evi-
dence accordingly, that at Stoney Gut hefound a chapel which had evidently
been just evacuated by a large body of men, traces of arms, &c. Reported
on the 22nd October:—“ I consider this part of the country free from rebels;
and from the information I have received, I think it probable that all, ex-
cept isolated cases, have gone to the interior towards Blue Mountain Valley;
if the rebels were in an organised state, they could, with ease, have de-
stroyed every man of my party; the bush and cane fields affording such
cover as to defy pursuit, and to render precautions against an ambuscade
useless with the force at my disposal, without being armed with hand
grenades.”

(a) It was this which the Governor, at the first outbreak of the rebellion,
dreaded and apprehended (wide ante, p. 164). And it is notorious that it
is this phase of rebellion which has always proved most dangerous and
difficult to vanquish. It has baffled us in New Zealand and Caffraria, and
inflicted upon our forces the most severe and mortifying repulses. If only
the negroes had not been deterred by the terror of our forces, the island
afforded such facilities for this sort of warfare, that they might have held
out long enough to cause great disasters, and it would not be known for
some time that they were cowed, as well as concealed and sheltered.
Numerous passages in the reports showed that the officers, for some
time, continued to expect attacks from men in such positions,
( 238 3

Tnstances (a) were stated in which, ten days after the
rebellion had broke out, armed parties of rebels actually
met and ventured to attack the troops; and although it
appeared that the rebels never made anything like a suc-
cessful stand against the troops, yet, as they, on several
occasions, so long after martial law had been declared,
attempted it, the officers inferred that they had every
disposition to do so, and that if they relinquished these at-
tempts, it was only from the fear of the troops, and the

hope of renewing the insurrection when they should be
withdrawn.

As, in their reports to the General in command, the
officers had stated, without disapproval, and with express
approval, that they had fired, not only upon parties of men
seen to bear arms, but on those who were seen in bodies at
a distance, so that they were apparently in hostility ; so
the officers in their evidence (6) avowed similar acts,

(a) Thus, Colonel Hobbs stated in his evidence:— On one occasion, at
Coley, they rushed toward us with arms and cutlasses; there were about
“70 of them about 50 yards’ distance, but they turned and fled.” On another
occasion he found traces of an armed body of men, and was told that they
had fled; and soon after saw a large body of them on the other side of a
“gulley ” approaching the troops, armed, and apparently intending an
attack, but they were fired on, and withdrew into the bush. So, evidence
of Colonel Fyfe:—“ On the 20th he received a challenge trom the rebels
that they were ready to meet the Maroons at Torrington, where they
said they had a fort from which they could ‘kill a hundred men
coming one at a time.’ Torrington, it should be stated, is a settle-
ment from which, according to the evidence, 100 armed men marched
down to Stoney Gut just before the outbreak, and united their forces to
those of Bogle. On the morning of the 21st, Colonel Fyfe took 70 of
his Maroons against this village, and sent them up the mountain side
in three parties. The assailants rushed up the hill side, towards the
village, in three parties. The negroes, armed with cutlasses and guns,
were seen clustered on the hill above. They then fired 10 or 12 shots
upon the most advanced party, wounding one of the Maroons. Several
shots were fired at them as they went, and this fire was returned with
effect. The rebels were all scattered, and he saw no one. Torrington
was deserted ; the population had taken to the bush.

(6) Thus, Colonel Hobbs stated, that when he was at Moncklands, he was
( 334 )

explaining that, as the rebels as much as possible avoided
actual encounter with the troops, and lurked in the shelter
of the bush, or remained at a distance, this course was the
only one practically available.

The officers were examined (a) with particularity and
stringency, as to the circumstances under which their
detachments had fired upon bodies of men under the sup-
position of their being in hostility, and described the
appearances and circumstances under which they had
acted, and which led them to that supposition. And they
avowed that, when they found bodies of men believed to be

surprised by being told that a quantity of armed rebels were coming, rushed
out, and saw about seventy armed rebels. He then gave the order to pre-
sent. The moment we came out they fled ; some turned round, and fired
a few shots at us ; they ran on, and kept jumping into the bush. They had
muskets and machettes, and the soldiers fired. Followed them four miles
on foot to another disaffected district, called Coley, where he burnt houses,
pointed out to be those of noted rebels. I took back at least a dozen pri-
soners. After resting, returned to Moncklands; our force was 130 men,
there were at least 1,000 men surrounding us; looked at them with my
glass, the hills were covered with them. I can’t say if all were armed. I
could see them running backwards, and towards us.

(a) Thus, Colonel Hobbs described the circumstances under which his
detachment had fired on bodies of men they had seen. He found, he said,
all the outward signs of a country in open rebellion, all lawful authority
was suspended, signals flying, negroes in arms, and houses smashed, gutted,
and destroyed, and numerous indications of hostility, which it was impos-
sible to mistake. Saw hastily made earthern works, heard horns blowing,
and scouts informed him that they had gone on. Houses beyond Monck-
lands were deserted, furniture removed to the bush, heard shots, searched
deserted houses; the magistrates pointed out the houses of the leading
rebels; fired six houses; marched to Mount Lebanon, and found the place
quite deserted; found a chapel there, and discovered foot marks in front of
the door; found cutlasses, and a large Bible laying on the floor in the
chapel, and it was quite evident that they had left about five minutes
before, and he was told that the rebels were there, they had evidently fled
on our coming. After we had burned the chapel, saw a large body of
rebels down the other side of the gulley approaching the troops, who were
separated from them by a gulley. They were coming up the hill, heard the
prisoners say, there they go, and I said who? they replied, the rebels. I
looked through my glass, and saw them armed; we fired on them; was
informed by the prisoners that they were rebels.
( 88 yj

armed, and amidst all the outward signs and appearances
of rebeilion and hostility, the troops were ordered to fire
upon them.

The general case, on the part of the officers, came in sub-
stance to this, that, after the first few days of martial law,
the insurgents, not willing to meet the troops in open
encounter, withdrew in large numbers, upon their approach,
to the woods, where they lurked in security, their huts
betraying, on the one hand, stores of ammunition, and other
preparations for hostility ; and, on the other hand, traces of
plunder, and often of murder, showing their active partici-
pation in the rebellion, and their disposition to renew it(q).

That it was necessary, therefore, to follow them, to clear
the woods of them, to drive them out, and, if possible, to
capture them ; but if they could not be got at, then to fire
at them, to compel them to surrender ; and, in doing so, to
kill a great many of them. And, further, that im order to
deprive them of the shelter of the habitations which they
used as depositories of ammunition, and as places of resort,
to burn a great many of their huts or cottages. Such was
the general nature of their evidence as to their operations
in the field, as regarded firing upon bodies of men, who,
whether armed or not, would not surrender, and were in
apparent hostility (6).

(a) The evidence of the officers commanding detachments abounds in
statements of this nature, that they found the houses deserted, and filled
with plunder, and the bush all around filled with negroes, who were seen
and heard from time to time in bands of hundreds, this bush being so
dense that it cannot easily be seen through at a short distance, and is diffi-
cult of access or of passage, especially for strangers. Thus, at Mount
Lebanon, Colonel Hobbs, the senior officer, stated that he found houses
deserted, but found in a meeting-house cutlasses, and traces of a number of
men having been recently there, and afterwards saw a large body of
negroes, apparently armed, and upon whom his force fired. The inference he
drew was that they were rebels. So in another settlement he found plunder
and ammunition in the houses, which were deserted, and met a body of
armed negroes, who retreated into the bush.

(b) Evidence of Colonel Hobbs:—Found the houses deserted, and he
( 836 )

It appeared, therefore, that the military detachments,
when they came upon bodies of men of the same class and
race as those of the insurgents—lurking in the bush—in
the neighbourhood of places that had been sacked or
devastated—considered them presumably as in hostility ;
and, if they were not near enough to capture them, they
fired at them (a), or if they were near enough to capture
them, they captwred them and tried them, summarily, and
executed those whom they were satisfied had been active
in the rebellion. Nor did it appear that this course had
been at all censured by the military authorities as contrary
to the usages of the service in such cases; nor did the
Commissioners obtain any military evidence that it was so.

In the view of the military authorities, rebels were not
the less rebels because they fled before them, or because

pointed out the houses of every one who had joined the rebels, and said
“that they had gone to Morant Bay.” There was everything to indicate
that they were in a state of open rebellion,—we observed scouts watching
us on the hill tops, and everything induced us to think that such petty
military movements were from a people who were in rebellion; we found
lumps of lead, and bars of iron, a great number of powder horns, new cut-
lasses, not used before; there were firearms in the houses, and several
bludgeons, some covered with blood too; found alsoadrum. They were
evidently manufacturing those things; we found the lead had been newly
cut. Somerset is about three or four miles long; thirty or forty houses
were destroyed ; I ordered that, wherever women were, they were not to be
touched or molested ; the presence of any in a house (he stated elsewhere)
saved it. Saw tea meeting tickets were printed, “Native Baptist Chapel,
Mount Pisgah, admission 1s.” and on the back of some were written, “to
discuss politics.” So elsewhere he stated that, on the 23rd October (ten
days after martial law was declared), he marched again through Somerset
and Garband Hall; we found Garband Hall to be in open rebellion; we
took no prisoners there, the place was deserted, searched for rebels, bnt
found none, ascertained that they had all fled into the bush. Magistrates
went with me, houses were pointed out by the magistrates and others, and
we destroyed them, we destroyed about thirty; all the inhabitants were
gone ; there was a great deal of powder and fire-arms in the houses; we heard
very great explosions while the houses were burning; we returned to
~Moncklands, and prisoners were still coming in.
(a) It was not suggested, in the examination of the officers, either by the
president, « military officer of high rank—or by any one else—what course
the military could take in such cases, if they were not to take this course.
( 337 )

they took refuge in the woods; nor were they any the less
to be considered in hostility, merely because they left off
these acts of outrage when frightened at the approach of
the troops (a). On the contrary, in the view of the military,
the very opposite presumption was to be drawn: that those
who had sacked a place to-day, would sack another place
to-morrow, if they could, and that those who fled into the
woods when the military approached, would probably come
out again when the military withdrew.

And that, therefore, if they would not surrender and
could not be captured, they might be fired at (b), to dislodge
them and drive them ont of their cover, and compel them
to surrender; in short, it abundantly appeared that, in
the view of the military authorities, although they were
authorised to use the measures of war, it was against those
who were not entitled to the rights of war, but liable,
on the one hand, to the retaliatory acts of warfare, or to be
treated summarily as ervminals, if taken.

So far as to the acts, or orders of the officers them-
selves, or the acts done under their orders and direction, or
with their sanction. The Secretary of State, however, had (c)

(a) In short, they did not consider that the avoidance of encounter was
any evidence of cessation of hostility; or that the cessation of insurrection
was the suppression of the rebellion. They deemed their work to be the
suppression of the rebellion, and deemed it not suppressed, so long as large
bodies of rebels were lurking in places of shelter (vide p. 292).

(6) This was the principle on which such acts as firing on bodies of men
without waiting to be attacked by them, or the burning of houses in
which plunder was found, or rebels resided, was vindicated. War in its
nature is retributive and retaliatory, and its only limitations are military
usages and considerations of humanity. If the enemy burn houses, the
enemy's houses may be burnt, and this was laid down by the General and
the officers, in the very orders they gave, restraining the measure by con-
siderations of humanity. So, if men went about, with or without arms,
burning houses, they might, it was deemed, be attacked, if they could not
be captured, whether or not found with arms in their hands. But here
again, considerations of humanity would come in to restrain the exercise of
this measure of war. And these considerations, it is considered, rather
than those of strict legality, formed the scope of the enquiry of the Royal
Commission.

(c) Vide ante p. 244.
( 338 )

on observing some passages in the reports (a), whence
it appeared that the officers were not always present with
their men, or the men had got separated from their officers;
and aware that this might open a door to excesses beyond
the orders of the officers, pointed some of his enquiries to
the important question, how far the officers had kept a
control over the meu.

As martial law is military rule, and military rule means
military orders and authority, it was considered that the
measures taken and acts done under martial law, should
properly be under such military orders and authority (6).
Hence, as the Secretary of State had specifically directed
attention to this point (c), the attention of the Com-
missioners was also directed to it (d), and one main point of
their enquiry was, how far the acts done by the military or
volunteers were under military orders and authority.

The governing question, so far as the conduct of the

(a) Thus, Captain Hole, in his report of the 19th of October, stated that
“Three men of the 1st West India Regiment got separated from this party,
and proceeded as far as the Plantain Garden River District, and from their
reports I learn a great number of rebels are lurking in that district. They
informed me on their return that they had shot about ten rebels; three of
whom were concerned in the murder of Mr. Hire.” As to this, it appeared
in the same despatch (vide ante p. 156), that they gave pretty conclusive
proof, as they brought back a great deal of the plunder taken from their houses.
But it appeared that ten men had been shot as rebels, without the presence
of an officer, and the Secretary of State had directed particular attention to
this, and evidence was taken upon it. It appeared from the evidence of
the officers, that they were perfectly aware that it was their duty, as far as
possible, to prevent their men from firing without orders, &e.

(b) Vide ante. This is of the essence of the whole question, and there-
fore has been fully entered into in Parts I. and Il.

(c) Vide ante, p. 252.

(d) Hence, also, the necessity for an act of indemnity to cover acts not
done under military orders and authority, though done honestly for the
suppression of the rebellion (vide ante, p. 229—233). Hence, also, the
officers in their evidence were anxious to show that they had given distinct
orders to their men not to fire without orders, and had insisted on all the
civilians and volunteers and irregulars being strictly under military order
(vide Ev. of Sieut. Adcock).
( 339 )

officers were concerned (a), was, whether they had done
their best to keep their troops under control, and to restrain
them within the bounds of discipline and obedience to
orders, and the usages of the service; and evidence was
given that they had, for the most part, done their best to
attain this object.

The officers (b) appeared to have upheld, as far as pos-
sible, that (except in self-defence), soldiers were not to fire
without orders, and they enforced this rule of military
discipline, even upon the volunteers who accompanied them,
and they strictly maintained that martial law must be
carried out under military orders. And it did not appear
that the officers had ever authorized the summary exe-
cution of men who surrendered (c), or were captured,
unless taken “red-handed,” or after some sort of enquiry,
and on some testimony of guilt.

It is true that, as there were isolated acts by soldiers, or
more often by civilians, volunteers, or constables, in the
absence of the military officers, in shooting rebels (d),

(a) This-was the spirit and the result of the orders issued by the
Brigadier commanding in the field, and the President and military mem-
ber of the Royal Commission, Sir Henry Storks, put the question to one
of the officers in this form: “ During the time your detachment was out,
was it kept in good order, according to the regulations of the service?” (Ev.
of Lieut. Adcock) which appears fully to accord with what is laid down in
“Simmons on Court Martial,” that, in the execution of martial law, the
officers are to be guided by the direct orders they receive, and the usages
of the service.

(6) Thus, Lieut. Adcock received orders to go in command of a flying
column, consisting of troopers, volunteers, and a body of armed planters,
his orders being to go in search of rebels, supposed to be in force in the
Plantain Garden River District, and that the planters were to obey his orders,
and he told Captain Ford, who commanded the planters, on no account to
allow any of his men to fire without express order.

(c) It isto be borne in mind all through, as already has been more than
once pointed out, that rebels taken in the field are not entitled to the
privilege of prisoners taken in regular war—that is, to be treated as prisoners
of war— but are liable, by martial law, to be summarily dealt with, and
either if taken inarms, or if on summary enquiry, found guilty of having
been in arms, they are liable to instant execution,

(d) Thus, Capt Hole stated, “I ascertained by accident that prisoners

Z2
( 340 )

causing prisoners to be shot or houses to be burnt, mea-
sures, however, which the military officers reprobated and
complained of at the time. In some cases, it was without
their knowledge (a).

The Commander of the irregular force, whose conduct
had been most severely complained of, gave evidence (0),
as to the nature of the orders he gave them, and which he
had reason to believe, on the whole, they had obeyed, to the
effect that they were to attack or assail only those who had
been actively engaged in the rebellion, and never to injure
non-combatants.

werc killed, while being brought to Gordon Grove, by special constables,
who gave orders to the soldiers ; it was not reported to me; I found it out
by accident; I instituted enquiries ; could get no one to tell me who the
soldier was; I had had so much to do in looking after the rebels, that I did
not appoint a court of enquiry.” So the evidence of Samuel West, “I
went with the soldiers as a volunteer ; saw the villages burnt at Muirton by
the soldiers ; saw George Wood shot by a soldier; the soldier asked if he
was a rebel, and some one said that he was.”

(a) Thus, Capt. Ford, who commanded a party of volunteers, and a letter
from whom (vide ante), had been considered as one of the grounds of en-
quiry, stated “ that he opposed shooting men on the roads and of bringing
in stragglers ; disapproved of the acts, as were related to him, committed
by the black soldiers on the road” (véde ante). Even in such cases, how-
ever, it appeared, that it was almost always upon some information, that the
men shot were rebels.

(b) Evidence of Col. Fyfe. “ His orders,” he said, “ were that all houses
should be burnt in which stolen property was found, or which were pointed
out by the guides as belonging to rebels, but that, in every case, one erec-
tion should be left in every yard, as a shelter for the women and children,
and if there was only one hut in the yard, it was not to be touched. He
had reason to believe that these orders were rigidly carried out by his own
people. Of course he could not investigate each case, but he believed that
the men obeyed his orders. And several of them were called to show that
they had done so, and that not above twenty-five negroes had been killed,
of whom nine or ten were killed in the field, and several by sentence of court-
martial, and one by himself, red-handed. He said “ Majors are of superior in-
telligence to the others; the Maroons had no drilling ; they were undis-
ciplined as far as drilling was concerned ; but they all knew how to obey
orders. He sent outa party under a captain to scour the country; they
gave him no written report ; three of the five were shot, without military
authority ; one by court-martial of Maroon officers, and two by regular
court. Three or four Maroon officers reported to me, that men were de-
( 34 4

The measures taken by the order or direction, or with
the sanction of the General, embraced not merely measures
of attack against those in arms, but the capture of prisoners;
and the summary execution of such as might be found to
have been active in the rebellion, and the infliction of
floggings for minor offences (a), the burning of houses found
to belong to rebels, and to have been used for storing
plunder or arms. That is, they embraced measures deter-
rent, as well as measures aggressive or defensive.

It never occurred either to the military or civil authorities
of the colony (6), that martial law, the last remedy for a
great emergency, was deprived of the potent deterrent effect
of speedy punishment; on the contrary, they regarded
martial law, it is conceived rightly, as the extension to the
whole population of that terrible power of summary punish-
ment, which is the most distinctive feature of military law (c).

livered to them by constables, and that they ordered them to be shot ; and
they were shot. He disapproved of it, and gave orders that no man was
to be shot by them under any circumstances.” So the non-commissioned
officers and ‘men gave similar evidence : “We received directions from
Colonel Fyfe, when we went on to Torrington, not to shoot any one except
those that fired at us, but that we were to capture all we could, and bring
them in. Colonel Fyfe told us distinctly not to burn any place, except
they were pointed out to us by our guides, as belonging to rebels ; and
if there were two houses in one yard, to save one for the women and
children; and if there was only one house in a yard, to pass it and not
disturb it ; we obeyed Colonel Fyfe’s directions. (Ev. of M‘Farlane, Briscoe,
Ellis, &c.).

(a) All these, it will be observed, are measures purely military, and to be
justified as a whole; and such as could none of them be justified by common
law, or by the functions of the military in aid of the civil power. Nothing
is known in such a case of summary punishment of any kind, and all that
can be done is to resist rebels in the act of insurrection, or to arrest them.

"These measures could only be justified by martial law, as an application of
military rule to non-military persons (vide ante).

(6) The Attorney-General of the island sat at the first court-martial ;
which tried prisoners for acts of outrage committed before the declaration
of martiallaw, but on the occasion of this rebellion. And the General
repeatedly directed courts-martial to sit in similar cases. And he issued
the warrants under which the courts-martial were held.

(c) That is, either summary punishment on the spot, or by sentence of
( 342 )

The view of the military authorities was that, as even in
regular war with honourable enemies, soldiers who offend
against the law, or usages of war, may be summarily exe-
cuted when taken prisoner, so, under martial law, rebels
who are not honourable enemies, entitled to the rights of
war, but criminals, who offend against the first of the laws
of war, by raising war against their sovereign or her loyal
subjects, were liable to summary execution (a).

It was abundantly obvious, from the reports and acts of
the General himself, and his approval of reports of officers,
that he considered the measures of war included the cap-
ture of bodies of men, whether armed or not (6), and the
summary execution of prisoners he believed to have been
taking an active part in the rebellion; as well in the burn-
ing of houses, or other acts of devastation, as in the use of
weapons ; both being acts of hostility, showing the perpe-
trators were in hostility to the loyal subjects.

And, as the reports of the officers in command of detach-
ments, disclosing that these measures were taken, went to
the General in command, and through him (¢) to the Com-

court-martial; which would be a matter for military discretion. But either
would involve the same principle ; punishment would be inflicted on ac-
count of its deterrent effect (vide ante).

(a) As spies, or assassins, or marauders and plunderers, acting under no
lawful military orders. This is the nearest possible analogy to the position
of rebels, pursuing a course of burning and robbery in their own country

(6) Report of General Nelson, 14th October:—“ The trial of prisoners is
now going on, and the result, lapprehend, will be against the rebels, strong
evidence being forthcoming.” October 15th:—‘“ The prisoners awaiting
trial for the rebellion will be arraigned before a court.” It did not
appear that any of them were taken with arms in their hands. So Captain
Hole, whose conduct he highly approved of, reported: - ‘I intend to have
destroyed all the houses in which proved rebels have resided.” And again,
in another report, after mentioning the acts of three private soldiers who
had brought in prisoners (vide ante p. 238): ‘‘I consider that these three
men have done good service. A great number of prisoners have been
brought in by the constables of this district, all of whom seem to vie with
one another to make amends for their late delinquencies by capturing all
the people concerned in the rebellion ;” amongst others, two ringleaders,
both of whom were engaged in plundering and burning, and were hung.

(c) Trde ante, p. 168. .
( 343°)

-mander-in-Chief in the colony, and through him to the
Commander-in-Chief at home (a), and no disapproval
appeared to have been expressed by any military autho-
rity ; but, on the contrary, in some instances (in substance
the same as all the others), approval was expressed by the
General in command, it may be presumed that these
measures, so far as they were thus disclosed, were such as
might be in accordance with martial law, and, primd facie,
were so.

As war is in its nature retributive and retaliatory, and as
measures of hostility of the most destructive kind might be,
and were carried on by the rebels without arms (0), and as
the declaration of martial law expressly authorized mili-
tary measures against those not merely who were found in
arms (still less those only who were found with arms in
their hands), but against those considered to be in hos-
tility, the measures directed or sanctioned by the General
comprised the capture and summary execution of those
found to have been active in the rebellion.

It will have been observed (c) that the Governor, in one

(a) Vide ante, p. 241. It appeared that the War Office had received the
reports of the officers, for copies had evidently been supplied to the Secre-
tary of State for the Colonies. But the Commander-in-Chief had expressed,
so far as appeared, no censure or disapproval, though these were all essen-
tially military matters. So as to the Secretary of State for War, even
although his attention had been specifically called to the military affairs of
the colony at the time.

(b) The very phrase used by the rebels was, ‘‘If buckra has gun, negro
has fire stick,” (vide ante, p. 112, im notis), and the last rebellion had
proved how fatal a weapon the “ fire stick ” may be. In the present case,
though it was not so used, because the policy of the rebels was a more san-
guinary one, to slaughter the whites, and preserve their places, plunder was
carried on to an immense extent, and houses were sacked and gutted, as by
an invading army. This, of course, would not require arms, when the
rebels had an overpowering force in numbers. It had long ago been
pointed out, by our ancient lawyers, that popular risings may be as formid-
able, by means of numbers, though imperfectly armed, as smaller bodies
may be by the aid of efficient arming. /

(c) Vide ante, p. 240, im notis. This alluded to the passage in the
despatch of Colonel Hobbs (vide ante, p. 234), one of those singled out by
the Secretary of State for explanation. “The constables had captured a
( 344)

of his despatches to the Secretary of State, stated, in refer-
ring to the execution of prisoners, that * this implied, that
it was after trial by court-martial, and either upon their
being taken in arms, or upon direct testimony of their
complicity in the rebellion,” which, it is conceived, ex-
pressed the true view of martial law. And the- officers
gave evidence in entire accordance with it, and showed
that they did not execute prisoners, except after such
enquiry as satisfied them of their complicity in the rebel-
lion.

The course to be pursued by the officers was indicated
less by express orders than by actual example, and it was
in accordance equally (a) with the instructions and the
example of the Governor and military Commander. The
officers, as they avowed, made summary examples of all
rebels they found “ red-handed,” 4.¢., either in possession of

number of prisoners from the rebel camp. Finding their guilt clear, and
being unable to take or leave them, I had them all shot.” This, be it
observed, was three days after he had desired to be told what to do with
prisoners, and after he had been told to deal with them summarily, and
execute those “ whose guilt was clear.” (Vide ante, p. 189.) And he dis-
tinctly states that he “found their guilt was clear,” which, they having
been actually seized in a rebel camp, was pretty certain. In his evidence
he stated that the constables stated that the prisoners were armed, and seen
drilling with Bogle, and that he considered was enough to prove their
complicity with the rebellion, as surely it was. It is to be presumed that
the object of the Secretary of State’s notice of the passage was, to elicit
whether there had been any enquiry ; and it appeared that there bad been
such as could be made under the circumstances. Assuming this to have
been so, the act of this officer was only, in substance, such as had been
done by all the officers, and the Genera] himself, that he executed prisoners
whose guilt he deemed clear.

(a) Captain Hole's evidence :—“ His Excellency asked me what my orders
were, and I told him ‘to proceed to Manchioneal, for protection of all the
whites,’ and that ‘I was not to leave the road.’ His Excellency said to
me, as far as I can recollect, ‘ Captain Hole, if you hear of any rebels, go off
the road, and make an example of them.’ When he got to Manchioneal, a
prisoner was brought in, with a quantity of stolen goods ; he had a machette,
sharp on both sides ; his jacket was all covered with blood, not proceeding
from any wounds ; consulted with the officers, and we agreed to shoot him.”
So Colonel Fyfe stated that he shot a negro, whom he found wearing the
ring of the Custos, who had been murdered.
( 345)

arms, or of plunder, especially the property of those who
had been murdered, or under other circumstances clearly

indicating actual guilt, or upon clear and positive testi-
mony of it.

So also, it was not less indicated by actual example by
the General in command (a), that men who could either be
shown to have taken part in the actual murders perpe-
trated, or to have threatened to take life (b), should be
summarily tried and executed. And this example was, of
course, followed by the officers (c).

The General himself (d) set the example of holding
courts-martial, and not merely for the trial of those who
had taken part in the murders, but of those who were
merely implicated in the rebellion; at places where
no murders had been committed, nor any acts of armed
insurrection, but where, by robbery and burning of houses,

(a) Thus, the General in command (General Nelson) sat on a court-
martial at Morant Bay ; three prisoners were tried for participation in the
massacre there, and were convicted, and sentenced to be hanged, one to be
flogged, and another, a woman, to be hanged, but with a recommendation
to commute the sentence to penal servitude for life. The proceedings were
sent to him, and in the exercise of his judgment he did not approve of the
recommendation, but ordered the sentence to be carried out.

(6) Thus, the General stated that one Hague, collector of customs, told
him that one of the ringleaders had threatened his life, and was close by.
“T sent out (said the General) a small party, under Captain Ross, to cap-
ture him, and they returned, bringing Flemming a prisoner. The next
morning I ordered a court to assemble; he was tried, found guilty, and

> executed.”

(c) Colonel Hobbs had men summarily tried and executed, for having
twice gone to the house of one Patterson, as was believed, in search of him,
with intent to kill him. At all events, they were clearly guilty of a felony
at common law, and a capital offence at common law, by committing
plunder there. And positive testimony was given.

(d) Thus General Nelson wrote (20th October) in a despatch, evidently
begun at Port Antonio, 40 miles from Morant Bay, the scene of the
massacre. ‘* A court-martial sat here (Port Antonio) and condemned several
rebels to death. Having approved and confirmed, the sentences were
carried into effect.” At Port Antonio or at Manchioneal there were no

-murders, but burning and robbery of houses, &c. These, therefore, were
deemed by the General acts of hostility justifying capital executions under
martial law.
( 346 )

there had been what military men consider acts of
hostility.

Whether looking to the express orders of the General (a)
as to the measures to be taken, or the reports of measures
taken, of which he expressly approved (6), or did not dis-
approve, it is manifest that he directed or sanctioned the
summary execution of men not merely found with arms
in their hands or in actual resistance, but men, in the
military phrase, found in arms, i.e. found in hostilety, or,
as the Commander-in-Chief put it, taken red-handed, or
believed, from circumstances of their capture, to have taken
active part in the rebellion, and that the huts of real rebels
might be burnt (c).

It was most distinctly stated (d), in the reports of officers

(a) General Nelson to Lieutenant Adcock, October 20. “ All ringleaders
to be secured ; men found in arms to be summarily dealt with ; care to be
taken that firing of huts be not carried to excess.”

(6) Thus General Nelson 17th October, wrote thus of the measures
taken by Captain Hole :—“ The whole of his proceedings were temperate,
decided, and judicious. All rebels captured, having been tried, he had
instantly executed. In several houses he found plunder secreted, and
razed them to the ground, and proclaimed that where he discovered spoil
he would adopt a similar course.” So Captain Hole to General
Nelson :—“ Manchioneal, October 19.—A great number of prisoners
have been brought in by the constables of this district, all of whom seem
to vie with one another to make amends for their late delinquencies by
capturing all the people concerned in the rebellion. All rebels captured,
not merely those found with arms in their hands, but those he had reason
to believe had been active in the rebellion.” Otherwise there would have .
been obvious absurdity. Men who had never had arms in their hands
might have sacked a town, as Manchioneal was sacked.

(c) Thus Lieutenant Adcock reported (22nd October) that he had drum-
head courts-martial assembled to try prisoners, and also of those sen-
tenced to death; and he adds that his instructions only authorized him
to carry out the sentence in cages of prisoners brought in by his own
detachment. So Colonel Hobbs, on October 16, reported that he had had
a rebel tried and executed, and so in other cases.

(d) Thus Captain Hole, an officer, whose reports the General most
highly approved and applauded, wrote on October 19:—“ Among the pri-
soners two were brought in, both of whom were engaged in plundering
and burning the Mulatto River estate, Mr. Hinchelwood’s property. I
assembled a court-martial, and the two men were hung in the middle of

°
( 347 )

most distinctly approved of by the General in command,
that men had been executed, not for the mere possession of
plunder, but for acts of plunder or of arson, which were
thus treated as capital acts of hostility under martial law,
though of course they would not necessarily, and did not,
in fact, involve the being armed or found in arms.

It did not appear that, in the view of the military autho-
rities, the phrase “found in arms,” was limited to those who
were found with arms in their hands (a), or that it was
used as a condition of this summary power of execution
under martial law, upon enquiry, and evidence of active
complicity ; but that it was used as a condition of that still
more summary power of instant execution in the field,
uithout enquiry, which, of course, inferred, not indeed
necessarily, that the parties should be found actually with
arms in their hands, but that they should be found in some
act, or position, of obvious hostility.

The military officers, it appeared, endeavoured to the
utmost, in carrying out martial law, to apply it only to

this town.” He went on to add a statement which showed the urgent
necessity, under martial law, for speedy disposal of prisoners by summary
enquiry. ‘Ihave deposed of several other prisoners by inflicting corporal
punishment, but still there remains a great number on my hands, and this
is swelling every moment.” This difficulty was pointed out in the reports
of all the officers, and in the orders issued from head quarters (vide
ante, p. 189). And if prisoners could not be summarily dealt with, the
difficulty soon would be insuperable.

(a) This would exclude cases of men who had put down their arms, in-
tending to resume them, or had left them in their huts and retired to the
bush to avoid the military ; soit would exclude cases of men found in the
act of firing houses, or of men aiding and inciting others in the use of
deadly weapons. The phrase “found in arms,” seemed to be used in the
sense of being found in hostility, «.e.,in the act of, or in some visible,
obvious, unquestionable condition of hostility or criminality, what the
Commander-in-Chief called being taken “ red-handed,” or what old lawyers
called being taken in the matinour, which did not mean being taken in the
act, but with such evident traces and circumstances of guilt, as left no
rational doubt of guilt. But, at common law, at this time, no one can be
killed, even én the act, unless it is necessary to kill, either to prevent felony,
or to arrest a felon.
( 348 )

hostility, and to distinguish between that and mere felony,
not connected with, or necessarily involving, hostility or
rebellion (a). But, on the other hand, in a warfare against
rebels, who waged their warfare against the loyal subjects
of the Crown, not in an honourable and regular way, but
by felonious acts of arson and devastation,—they did not
consider that the only evidence of hostility was the use of
arms.

It must be clearly kept in mind that, at common law,
the military could not lawfully kill or inflict sentence of
death, even in cases of men, not only found in arms, but
even in cases of those found in the act of felonious outrage (0),
unless the infliction of death was necessary to prevent
the act of outrage, or to prevent the escape of the felon, or
unless it occurred in the encounter with a felonious or
rebellious body. And, therefore, martial law would be
required to authorize even the execution of those found in
arms, or with arms in their hands, or even taken in the act
of arson or murder. On the other hand, in the view of
the military authorities, the severities of martial law were
not restricted to such cases (c), although, by military usage,
the power of instant execution, without enquiry, might be
so restricted.

(2) Thus it was remarkable, in the very letter of the volunteer officer,
which more than anything else, perhaps, excited sensation in the public
mind (vide ante, p. 242), itappeared that the mere being concerned in plun-
dering was not deemed to require the infliction of death, but only of
flogging. And itis believed, that no capital execution was inflicted by
order of any officer forthe mere possession of plunder, although, under the
circumstances, it would be felonious, and strictly would be capital under
martial law. So in the first despatch of Col. Hobbs (vide ante, p. 284), it
appeared that he at first hesitated as to the execution of men not found in arms,
but afterwards he found that most of the mischief was done without arms.

(0) Vide ante.

(c) Otherwise, it is obvious, it would lead to monstrous absurdities. A
man seen setting fire to a house, even although persons were burnt to death
in it, or a man seen to commit a murder, without what military men call
“arms,” or along with and helping those who were using weapons, could
not be executed; but a man found with a weapon, although he had done no
mischief, would be liable to be executed.
( 349 )

The officers stated, moreover (a), as they had in their
reports, the circumstances of embarrassment under which
they soon found themselves placed by the accumulation of
prisoners, and the difficulty, or rather practical impossi-
bility of guarding them, and the consequent necessity of
dealing summarily with them in some way, upon summary
enquiry, which is one of the primary and main difficulties
to be met with by martial law, when the number of prisoners
is far too great to be dealt with in the ordinary way, and
they can only, from the nature of the case, be dealt with
summarily.

The officers stated fully in their evidence, the circum-
stances under which (5), when prisoners were taken, they

(a) Thus, the gallant officer (Col. Hobbs), whose acts, or perhaps one
might rather say whose words, were most assailed, wrote thus to his supe-
riors, Oct. 18, three days after martial law; after first describing the
deterrent effect of the execution of a rebel, which had just taken place.
“ He was tried this day by court-martial, and, after due deliberation, found
guilty and shot. This has produced a wonderful etfect throughout the dis-
trict. Since the execution numbers of rebels have come in, having thrown
away their arms, and seeking protection. These men I cannot possibly
undertake to guard. They are embarrassing the troops, and I believe they
are all worthy of death, but I shrink from the responsibility of executing
them, without first hearing your wishes respecting them.” It would be
impossible more clearly or more properly to describe the difficulty, and he
only did so in his evidence more fully. He had intimations that he must
dispose of the prisoners as well as he could by summary enquiry, and his
evidence, in substance, came to this, that he did so, that is, that he did the
best he could under the circumstances. But the evidence showed that it
would be idle to confine the military, under martial law, to taking
prisoners. Three days later he wrote, “ About daylight this morning, in
passing through this village of cross-roads, where the rebels destroyed every-
thing, I found a number of special constables, who had captured a number
of prisoners from the rebel camp. Finding their guilt clear, and being
unable either to take or leave them, I had them all shot.”

(6) Col. Hobbs’s evidence. He stated, “that at one place he found a
large body of persons with badges there, who said they were special con-
stables; they had eleven prisoners ; they were taken up as being engaged
in the riots and connected with murder. I was asked not to leave them, as
the district was full of rebels, and they might be taken from them; and as
I learned from a corporal of volunteers, who was there, that they were
notorious rebels, I assembled a drum-head court-martial to try them ; the
court consisted of three senior officers; not having a bible, I made them
( 350 )

dealt with their cases, either summarily, if they were taken
“red-handed,” or if not, then by trial by court-martial, and
they also described the manner in which these trials were
conducted, with a view to show that they were fair and
careful trials, with a view to attain to the truth and to do
justice,

The more particular demands for explanation on these
matters resolving themselves, as already pointed out—except
as to some circumstances of propriety—into more general
questions, so the explanations of the officers on these par-
ticular matters resolved themselves into their general expla-
nations (a), and amounted to this, that in these executions,
on summary enquiry, although in some instances the mode
of alluding to them in hasty reports might have been
inconsiderate, their real actions at the time had not been so;
but that they had taken such measures as they could to
satisfy themselves of the guilt of those executed.

hold up their hands and swear as they do in Scotland ; and they were tried
as carefully as they possibly could. The volunteers and special constables
who had taken them, stated that they were concerned in the murder of the
Baron and Mr. Price, and that they were all Morant Bay offenders of the
llth of October; they were all found guilty, and sentence of death was
reported to me. I went to the prisoners, told them the sentence, and asked
if they had anything to say—all confessed except one man—was about to
release him, when one of the constables came up and said that he was the
worst of all; he then acknowledged that that was correct, but that he was
compelled to join the rebels. They were all shot. I appealed to the
officers to know if there was a dissentient voice as to the sentences; all
agreed, and my own conscience was satisfied.

(a) Thus, as to the passage in Colonel Hobbs’s despatch :—“ A greatnumber
of prisoners whom I shall have to shoot to-morrow,” he explained it as
meaning no more than a passage in a report of the General’s, to the effect
that, as the evidence was strongly against the prisoners, he believed it
would go against them. And he entered into statements to show, that in
fact, the cases of the men were carefully considered. And the fact that on
the very day after that despatch, out of 50 prisoners tried, only 27 were
found guilty, went strongly to show that there had been some care taken,
and that the men were not recklessly shot in batches. So as to the passage
(vide ante, p. 344), that men were shot whose guilt was clear, he went into
explanation to show that their guilt was clear to him at the time.
( 351 )

The officers (a), far from maintaining that they were at
liberty under martial law to have prisoners punished or
executed recklessly, showed in their evidence that they had
certainly used some means and taken some care, either upon
summary enquiry or by courts-martial, to satisfy themselves
as to the guilt of those who suffered; and they sought
to show that they had taken sufficient means and used
sufficient care under the circumstances (b).

From the number of the prisoners (¢), and the pressing
necessity for disposing of their cases as speedily as possible,
it was hardly possible to keep written notes of all the evidence
in each case ; and all that could be stated, either generally
or when particular cases were challenged, was to state that
witnesses had been examined; but in some instances it
was possible to state the substance of the facts they de-
posed to (d).

(a) Thus, Colonel Hobbs, having in his despateh, dated midnight, 19th
of October—writien as above—stated in his evidence :—“ On the morning
of the 20th, drumhead courts-martial were assembled—out of 50 prisoners
tried, 27 were found guilty; I was not present myself, but Captain Field
and the officers were very careful. The prisoners were drawn up in a line,
and each tried separately, on the evidence of constables; these courts
were held under my authority. I read over the evidence first, and sent no
one before the court, except I was satisfied with the evidence against him ;
about ten or a dozen were discharged, and about 27 executed; all beyond
27 of the body of 50 were let go, from insufficency of evidence ; all were
tried by courts-martial as far as convenient ; the proceedings were all sent
to the General commanding. Special constables brought in prisoners, who
they stated were armed and seen drilling with Paul Bogle; that was, I
consider, enough for me to say that they had joined Bogle.

(b) That some care must have been taken, is manifest from the fact that
so large a proportion of the prisoners were released, or suffered only minor
punishment. How far suficient care was taken, was for the Commissioners.

(c) Hundreds at this place alone.

(d) Thus, as to Carr’s case, it was stated :—“ We held a Court of Inquiry:
the Court was formed at the request of Colonel Hobbs; a man named Billy
Carr was brought before us at about 10 o’clock in the morning; we heard
the case, and sent it to a court-martial ; we held only preliminary enquiries,
and we handed the result of such inquiry to the court-martial; we con-
sidered Carr was a rebel ringleader ; we examined several witnesses, who
saw and heard him giving directions to the people at Morant Bay. So in
the case of the thirteen men shot for having gone into the house of a white
( 352 )

There was very strong evidence (a), not only on the part
of the officers themselves, but of others present, that the
officers, in cases of summary executions, had used as much
care as they reasonably could, under the circumstances,
to satisfy themselves as to the guilt of those who were
executed, upon the information of witnesses, that they had
been taken in open rebellion. .

The-explanations of the officers as to statements in their
reports (b) as to attacks upon parties or bodies of men at

man named Paterson, in search of him, and with intent to kill him; a
witness was examined against them, (the servant), and it does not appear
that there was any reason to doubt the truth of the statement, especially
as the men had been twice to the house, and been in it some time. And
the Colonel was careful to ascertain if any who were accused had been
working since the rebellion; and whether, even if not, they had been seen
with the rebels. If not, then, although there was strong prima facie
evidence of complicity in the rebellion, the capital penalty was not in-
flicted. (Ev. of Williams.)

(a) Thus, a person who was with the troops and saw eleven persons shot
at Chiego Foot Market, by orders of Colonel Hobbs, said :—Colonel Hobbs
got them in a row, and the constables swore that they caught them in open
rebellion ; Colonel Hobbs made the constables hold up their right hands,
and swear before God and their allegiance to Queen Victoria, and the con-
stitution of Jamaica, that they saw them. The constables pointed out each
man whom they identified, when they were placed in the line; some of the
constables swore, I saw this man in open rebellion; or I found them plun-
dering, and soon. The constables used the words “open rebellion,” and
occasionally specified particular acts which took place. Colonel Hobbs was
not on the court-martial. Those at Chiego Foot Market were not ques-
tioned individually ; if they had had anything to say, I think they would
have been heard.” From this it is to be inferred that they did not say any-
thing, and did not deny their guilt, as they naturally would have done if not
guilty.

(6) Thus Captain Iole reports on 17th October, 1865, (vide ante, p. 235).
“The effect was that in a district which had been the scene of devastation,
every black man who did not stand at our approach, to give an account of
himself, was shot.” The proceedings of this officer were expressly approved
by the General in command (vide ante, p. 346), and, it must be taken, were
in accordance with military usage. He naturally enough assumed that
the male inhabitants of huts filled with plunder were engaged in the
rebellion, and it was to be inferred from his report that the rebels killed
in firing these huts, were in or about the huts, and implicated in the
plunder which had been going on. Then, as to the occurrences at Man-
chioneal, there the blacks had risen with cries of death to the whites,
( 353 )

a distance, were, in substance, that they were found in or
near to scenes of outrage or devastation, in which they
must have been implicated, and in which their flying or
refusing to give any account of themselves raised a pro-
bable presumption of active complicity in the rebellion,
and the acts of outrage which accompanied it.

That the comments made upon some passages in military
reports of the officers had arisen in a great degree not
only from misconstruction of careless expressions, but also
from misconception as to the lawfulness of their proceed-
ings, was manifest from this, that the substantial objection (a)
in all the cases came to this: that parties of men had
been attacked or executed, who were not found in actual
resistance, or with arms in their hands, although they
appeared to be active in the rebellion. It appeared, how-
ever, that in the view of the military authorities, as it was
not regular war in which they were engaged, in which

(vide evidence of Burke), and were actually engaged in firing the houses.
There was, therefore, a violent presumption that the blacks found in the
vicinity, and who durst not stand to give an account of themselves, were
guilty of complicity in those acts of outrage; and, if so, then they were
liable, by military law, to instant execution. A whole town having been
sacked by hundreds of rebels, the execution of sixty would not necessarily
be very excessive.

(a) An objection, evidently arising from the erroneous notion as to the
scope of martial law already combated in the previous portions of this
work (vide ante, p. 83). Thus, as to the passages in Colonel Hobb’s
reports referred to by the Secretary of State (vide ante, p. 234). “We
secured six persons, whom I would have shot, but from the fact of their
being unarmed. I now regret I did not do so, as they are no doubt
rebels.” As to the prisoners—the reports of other officers approved by
the General—and of the General himself—showed that it was deemed that
persons who appeared to have been active in the rebellion, were liable to
be executed, whether or not they were taken with arms in their hands ;
and it was an: error to suppose that this fact was necessary, for a man who
never had a weapon in his hand, might have burnt a house, or helped
those who had weapons. Then, as to the shooting at a body of men ata
distance, it was done in other instances without exception (vide ante, p. 156),
and bodies of men in open rebellion were presumed to be in hostility. And
as to the passage “ Shot a great number of rebels on the way,” it has its
exact parallel in the report of the General himself. (24th October.)

AA
( 354 )

men found in arms are entitled to be treated as prisoners of
war, but war against rebels and criminals, who, even if found
in arms in open encounter,were not entitled to be so treated,
but were liable to be treated as criminal ; so, d fortiori (a)
those who were not found in arms, but were guilty of
criminal outrages, which would be irregular even in enemies
entitled to the rights of belligerents, acts of private depre-
dation, arson, &c., were liable to be summarily dealt with,
under martial law, as criminals.

And this seemed almost implied in the Secretary of
State’s despatches (b). It will have been observed (c),
that the Secretary of State had directed some of his inter-
rogatories, especially to executions, upon summary enquiry.
It being of the very essence of martial law, that it
involves a power of military punishment, either on sum-
mary enquiry or upon trials by court-martial; and the
military officers having to decide when the summary
enquiry should be deemed sufficient without more formal
trial, the enquiry into these summary executions, as into
other measures taken, would be directed rather to the pro-
priety than the legality of the executions or punish-
ments that had taken place. And the very enquiries
made appeared to imply, that summary executions of
prisoners might take place, if, upon such enquiry as was
proper under the circumstances, they were believed to be
guilty of active insurrection.

(a) Even in aregular war, in which prima facie, those who are engaged
in the service of the enemy are entitled to the privileges of war, if they
are only found in arms, engaged in open and honourable warfare; they
are not entitled, if found without arms, engaged in acts of depredation or
outrage not sanctioned by the usages of war, nor under lawful military
authority, as where soldiers become mere marauders, and commit acts of
outrage, such as robbery and rape, murder, &c. These are liable to be
executed either by their own general or the enemy.

(b) Vide ante, p. 244.

(c) It is distinctly recognised and cited in the Petition of Right (vide
ante, p. 11, p. 93), where it is shown that only such enquiry is necessary aa
can be made under the circumstances.
( 355 )

As regards the means taken to satisfy themselves that
prisoners had been active in the rebellion, the explanations
of the officers amounted (a) in effect to this, that they had
acted according to the usages of war, and had applied, in the
best manner they could, under the circumstances in which
they were placed, theprinciples of probability, or presumptive
proof, admitted in any criminal courts. That is, that they
applied to bodies of men the principles of presumption and
probability, which, atcommon law, areapplied to individuals ;
and as, at common law, a man found in possession of goods
recently stolen, is presumed to have been the robber, so, if
they found a place recently sacked, in possession of or just
deserted by a body of negroes, or found a number of huts
recently left by them, filled with plunder and with arms,
they presumed that, as a body, these men were engaged in
the rebellion, that is, that they deemed circumstances, rais-
ing a probability of active complicity in the rebellion,
sufficient, in the absence of explanation, to warrant a con-
viction.

(a) Thus, in the case of The King v. Burdett, 4 B. & Ald. 122, which is
the “leading case ” on this subject, and in which the doctrine as to pre-
sumptive proof is laid down. Best, J., thus laid down the law as to presump-
tive proof :—“ Whenone ortwo things are proved, from which our experience
enables us to ascertain that another, not proved, must have happened, we
presume that it did happen, as well in criminal as in civil cases. Nor is it
necessary that the fact, not proved, should be established by irrefragable
inference. It is enough if its existence is highly prodadle.” So, in the
same case, Bayley, J., said :—‘‘ No one can doubt that presumption may be
made in criminal as well as civil cases. Ifa theft has been committed,
and shortly afterwards the property is found inthe possession of a person
who can give no account of it, it is presumed that he is the thief; and so
in other criminal cases.” Thus, Gen. Nelson, in his despatch of Oct. 15,
mentioned it as a proof of the guilt of one man, that he wore the clothes
of one of the victims of the massacre. So, Col. Fyfe shot a man he found
wearing the ring of another of them. So it was stated in a despatch of
Capt. Hole, 19th Oct. “that three of his men had shot three rebels as con-
cerned in the murder of Mr. Hire, and brought back with them two cart-
loads of recovered property, some of which belonged to Mr. Hire (as in
one of the pockets of a coat he discovered two letters), and some to Mr.
Shoitridge (the same being discovered by the crest on two plated teapots).”

AA2
( 356 )

The same general principles were applied either as to
attack or summary execution (a), and it is conceived that
mere error, or even some want of proper care, in the appli-
cation of these principles, would not in any particular
cases, even if innocence were proved, necessarily invalidate
the legality of the executions (0), however it might involve
some culpability, and call for some amount of censure.

The explanations of the passages in their reports, as to ex-
ecutions of prisoners (¢), of which explanations had been de-

(a) That is, speaking generally, men were attacked or fired at, if they
could not be got at to be captured, when they were in bodies, under such
circumstances as to raise such presumptions of their being engaged in the
rebellion, as would be deemed primd facie to justify their execution when
taken ; and, on the other hand, men taken under such circumstances were
deemed liable, in the absence of exculpatory evidence, to execution. In
several instances it was found that, even after sentence, the officers were
ready to listen to any exculpatory evidence.

(2) Tt is not every degree of carelessness which renders a man civilly
liable ; there must be a want of such care as men ordinarily show. And
this, it is obvious, only applies to ordinary circumstances, and a much
larger measure of indulgence would be due to men acting under circum-
stances extraordinary, and in a great public emergency. And far more
than carelessness is necessary to render an act, otherwise lawful, illegal.

(c) Thus, Col. Hobbs, 19th Oct. (near Stoney Gut, the seat and strong-
hold of the rebellion). “ About daylight this morning, in passing through
this village or cross roads (where the rebels have destroyed everything), I
found a number of special constables, who had captured a number of pri-
soners from the rebel camp ; finding their guilt clear, and being unable to
either take or leave them, I had them all shot ; the constables then hung
them up on trees, eleven in number.” The explanation here was easy and
obvious, that the men had been taken in the rebel camp, and on that scene
of actual devastation, and that their guilt was clear. Then, as to the
passage, (vide ante, p. 235), as to one of the rebels, who said, “he knew
every single rebel in the island by name and face, selecting the captains,
colonels, and secretaries out of an immense gang of prisoners just come in
here, whom I shall have to shoot to-morrow morning.” The explanation
was, that the man, no doubt, wasa rebel, who did know the ringleaders,
that he did point out the ringleaders (who could hardly be discovered ex-
cept in some such way), that the circumstances left no reason to doubt his
statement, but rather confirmed it, and that the men were not executed
without consideration of these circumstances. If they were the “ captains
colonels, and secretaries,” it should seem that it might be justly deemed
that they ought to be shot, seeing that from this place the murderous bands
( 357 )

manded, came, in substance, to this, that under the cireum-
stances, or upon positive testimony, it was believed that their
guilt was clear, and that no men were executed without rea-
sonable ground for believing, either from the place or circum-
stances under which they were taken, or from positive
testimony, that they had been actively engaged in the
rebellion,

As regarded, therefore, cases (a) in which men had been
summarily executed, upon being pointed out by police
officers or others, as having been engaged in acts of insur-
rection or felonious outrage, these, it is manifest, would
depend upon whether they denied the charge, or whether,
if they denied the charge generally, they denied only the
specific fact stated against them, which would prove their
guilt, as that they had been present at such and such an
occasion, &c.

It did not appear from the evidence that men, with the
sanction of the officers, were shot and executed, unless either
taken in the field in apparent hostility—or red-handed—
or on some kind of trial or enquiry, and testimony of some
specific facts, showing complicity in the rebellion or insurrec-
tion. And though men were, in some cases, shot by soldiers,
in the absence of officers, without sufficient testimony, it
was, it is believed, almost always on some sort of testimony
that the men were rebels (0).

chiefly came who perpetrated the massacre. And it will be seen that
there were captains and colonels, &c. (vide ante p. 281). And this man
said he knew them.

(a) For confession, it is manifest, would dispense with further proof,
as might circumstances showing guilt, without express evidence; for
instance, the possession (unexplained) of property of those murdered, And
confession might be implied as well as express; and admission of facts,
showing guilt, might be in effect a confession of guilt.

(b) Thus those ordered to be executed, as being stated to have been taken
in the rebel camp (vide ante). So of the men executed for going to Mr.
Paterson’s house in search of him with intent to kill him. (Ev. of Mr.
Paterson and E. Williams.) So of the men taken on the road, while they
were drumming for the rebels and shot. (Ev. of Eady.) And so Ey. of Burke:
“ Saw people shot by the soldiers without trial ; saw them shoot people as
( 358 )

It appeared (a) that in most cases where men were
executed summarily by soldiers, with or without order of
officers, the soldiers had seized the men almost in the act;
that is, in the place which had just been the scene of
felonious outrages; and under such circumstances as could
leave no reasonable doubt of their guilt. They would come
upon towns or places which had been pillaged, and the con-
stables or inhabitants would point out the men who had
been engaged in the pillage, and in whose houses traces of
the plunder would be found.

The officers must necessarily act upon evidence of others,
either positive and direct, or circumstantial (b), and no rule
of law required any particular number of witnesses, or the
highest possible degree of certainty. If there were any
positive testimony, even though it were the testimony of a
single witness, or if there were circumstances to raise any
probable presumption of guilt, it would not affect the legality
of the sentence, that others might consider it, under the
circumstances, rash to act on such a probability, or on such
testimony.

the constable pointed them out ; there was no officer there.” So in the case
of a black soldier, who shot ten prisoners in the absence of an officer.

(a) Thus, for instance, at Manchioneal, which had been sacked by the
rebels: when the soldiers came they were stated to have seized and shot
men as the constables pointed them out. And in one case they were said
to have gone into houses and shot men; but in these instances it must
fairly be inferred that they found traces of recent pillage, and had also
been informed that the men had been engaged in the acts of pillage which
had just been perpetrated. In such cases, also, it appeared that the officers
were not present. It appeared that even the soldiers, before they shot a
man, would ask if any one knew that be was a rebel (ev. of West), and
would not shoot him unless this was testified by some one.

(6) It was in the instance in which Colonel Hobbs executed several men
for an outrage in the house of Mr. Paterson, on the testimony of a woman,
a servant who spoke positively to their identity. How far it was or was not
right to act, on such testimony, would depend entirely on circumstances. In
courts of justice, prisoners are often convicted of felony on the testimony
of asingle witness. It is entirely a question of credibility, of which the
jury would judge from the circumstances. For instance, the men might by
their demeanour have virtually admitted their crime.
( 359 )

The evidence (a) showed that the General in command
and the officers were quite aware of what the obligations
of natural justice, and the usages of the service, required
in trials by court-martial, or on the most summary enquiry,
viz., that evidence should be taken ; and that the prisoners
should be heard in their defence, either in the way of
cross-examination or observation. And they stated that
these requisites were attended to.

The officers were perfectly aware that the rules of
natural justice required that on the most summary enquiry
there should be evidence (6), and in no instance did it

(a) Thus it was stated that the General in command always looked for
the most conclusive evidence before he executed a man. (Evidence of
Hague). This, no doubt, was, in capital cases, a proper precaution, though
it was not, perhaps, strictly necessary, since no more could be required at
common law; still it was the safer, and, therefore, the proper course,
though a less degree of care would not be necessarily culpable. It was some-
times attempted to show that men had been punished without evidence ;
but it was always found that there had been witnesses. (Evidence of
Paul, asan example). So Captain Astwood stated: “I sat on one court-
martial at Morant Bay; men were before the Court, charged with being
either privy to murder, or sedition, or riot and rebellion, as the case may
be; evidence was adduced before the Court, and prisoners were allowed
every opportunity of cross-examining witnesses, and putting questions to
them, and no man was sentenced except it was proven that he was taking
part in the riot or committing murder; the prisoners cross-questioned
the witnesses, and some did so very cleverly. Isat upon a court-martial
at Golden Grove. Took no notes myself; Colonel Lewis presided at the
Court in Morant Bay, associated with Captain Espeut, and myself as
junior Captain ; I think eight or ten prisoners were tried. The rules were,
that all should be tried conscientiously, and the oath I think was taken
from the Mutiny Act.”—See also Ev. of Lewis and Espeut.

(6) Thus Lieutenant Astwood stated, ‘‘ A man was brought in by constables.
Three volunteers and some officers were standing in a group—evidence
was that he aided and abetted in the outbreak, and he was ordered to
be shot. There were two persons brought before us, one was ordered
to be detained.” So in the case of Mitchell. A witness stated that he
said, “Ob you are going to Morant Bay, they will chop your head off,” &.
The witness was sworn; there was no record taken; they heard him and
his Overseer’s evidence, and the man was executed. Captain Adcock,
Captain Astwood, and Mr. Harrison sat on the Court.” When they heard
that he had threatened to take the witness’s life, he was executed.
( 360 )

appear that an officer, or the Provost Martial had ordered
the infliction of death without evidence, in the presence
of the prisoners (a); and the discrimination shown in the
sentences, and the release of many, showed that there
had been a real desire to do justice, even although it may
not always have been accompanied with the highest pos-
sible degree of care.

A good deal of evidence was given (6) with a view to

(a) Thus Major Prendeyille, one of the Provosts Marshal, said distinctly —
“TI never ordered a man to be flogged, except on written or oral evidence.
I took written statements sworn to before magistrates. They were almost
invariably accompanied with the persons who deposed to it; I don’t re-
member one case without the defendant being present; I always read
over the depositions, and then made the deponent confirm it.” And
then, further, as to executions. “The only persons hanged were
three, and you have the evidence upon which they were condemned,
before you. Denton made a statement before me—he would insist doing
so, although I told him it would be used against him before the court-
martial—I cautioned him, and he insisted. So one March stated that
on Thursday, the 12th October last, people entered the town of Bath that
day blowing horns; there were two batches of 100 each, armed with cut-
lasses, bayonets, guns, and harpoons. They went to Mrs. Hitchens and
demanded powder of her. She said she had none. They demanded the
keys of the several shops and opened them; they took out of Mr. Ford’s
store especially guns and cloth; they escaped to the market that day,
and can’t tell where they went; when I came back the Maroons and
soldiers were in Bath. Several prisoners were brought in by the
Maroons; was present when they were tried, &c. He himself saw among
them some of those who had plundered the stores, and recognised about
ten, though he did not give evidence against any of them ; they were only
flogged. But afterwards a man being recognised as one of those at the
massacre, he was executed. This may have been hasty, but it was manifest
it was honest, and it was really believed he was guilty.

(b) Thus March stated: —“ On my return to Bath on the I9th or 20th, I
called at Leith Hall, and I saw Ford's Irregular Cavalry, and Astwood’s
Mounted Volunteers riding into Leith Hall; I followed them in, and heard
the people tell the officers that they had some prisoners; the prisoners were

- brought out, and just at that time some of the 6th Royals and a corporal
of the black regiment brought in some more prisoners, and they were all
placed together ; all the prisoners were flogged except one ; about fifteen in
all. They were not tried, as no court was formed or witnesses heard. Ford
was there; Astwood, and an officer I think of the black regiment; two
men were to be shot; one was removed, and the other was questioned ; he
had a wound, and said that he went to Morant Bay to buy medicines, and
( 361 )

show that due care was not taken in these summary
enquiries ; and, probably, in the confession in some instances,
there was not so much care taken as would have been
proper. Attempts were made also to show that on some
occasions no evidence at all was taken (a), but this was
disputed by the officers, who stated that either they or
some one else had always investigated the cases and
made an enquiry.

So as to the observance or non-observance, on these sum-
mary enquiries, of the rules observed on trials by court-
martial ; for instance, as to taking evidence on oath, it
would rather be a matter of propriety than of legality ;
and the propriety would necessarily depend upon the
circumstances of each particular case (b). Therefore it was

he discovered that he was wounded ; they said, ‘this is one of the Morant
Bay rebels, shoot him,’ and he was shot; all the volunteers were mixed up
together; the officers agreed that the other man should be shot, but not
until they returned ; that was the man who was not shot.” Now here, the
very distinction made between the two cases showed that there had been an
honest though hasty enquiry, and that there was a real belief in the guilt
of the man executed.

(a) Thus Captain Astwood stated with reference to the evidence of the
witness just mentioned:—* When I went to Leith Hall with a detachment
of the Sixth, under Lieutenant Adcock, and some volunteers, I found a
number of prisoners who were brought in by the constabulary and handed
over to us; the women were dismissed, as invariably a rule among us is not
to punish women, except they were actual participators in the massacres.
Found five policemen and five constables, with twenty-five rebel prisoners;
I considered that the force was too small, and I took charge of them myself.
Received them on the road and took them over to the Clerk of the Peace,
who ultimately committed them to be escorted by me, and I handed them
over to the Provost Martial ; I got a list of them from the Clerk of the
Peace, and I gave the list along with the prisoners to the Provost Martial.
Those who were caught in the woods it was ascertained had stolen property,
and that they sided with the rebels. The Clerk of the Peace reported such
to be the case to me, and upon such information I directed them to be
flogged ; he had first investigated the cases. The Clerk of the Peace told
me that they got from thirty to fifty lashes; certainly not more than fifty ;
and no women were flogged. That was on the 24th or 25th of October.”

(b) It was admitted that in some instances the witnesses who testified on
these summary enquiries were not examined upon oath. This was not
admitted designedly, of course, but only accidentally, from the absence of
( 362 )

no doubt with reference to these considerations of propriety,
the Commissioners entered into all the circumstances as to
these summary executions.

Moreover, from the necessity of the case, many of the
matters which were subject of enquiry (a), were not merely
matters for military judgment at the moment, but were
incidents and circumstances which were matters of personal
observation and opinion, and could not possibly be repro-
duced in the form of legal proof, even by the parties them-
selves stating what they saw or heard ; seeing that it is often
practically impossible to reproduce in the minds of others
the impression made upon one’s own, by things which are
matters of eyesight and hearing, as they occurred at the
instant.

And the want of proper care, as it would not (0) take
away the legal justification in the same case, so, 4 multo
fortiori, it would not take it away in others. No amount
of mere actual excess in honestly carrying out martial law,
ae. excess as it turned out in the event, would deprive those

a copy of the Scriptures. No doubt it would have been a proper measure
of precaution to swear the witnesses ; though it should be borne in mind
that a person wicked enough to give false evidence in such cases, would
probably more be influenced by fear of punishment than the violation of an
oath ; and witnesses who gave evidence wilfully false, to convict innocent
men, would be liable to punishment for conspiracy.

(a) This was particularly so of the matters most subject of stricture and
enquiry : as the shooting of men pointed out by informants as rebels; as
for instance, in the case of Colonel Hobbs (vide ante), which was one of
those primarily the subject of inquiry. It is obvious that the propriety of
this would entirely depend upon the impression of truthfulness conveyed
at the moment, and under all the circumstances; for example, the demea-
nour of parties accusing and the parties accused; whether the former were
direct, and firm, and specific in their accusations, and supported by sur-
rounding incidents and circumstances; and whether those they accused
denied the charge; or, if so, whether faintly or firmly, and whether able to
support their denial by any circumstances; or whether they rested on bare
general denial, and if so, whether their general denial was obviously falsified
to some extent by known facts; and so on. Then again, whether aman
who threatened an officer—as in the case of Marshall—meant it as a delibe-
rate threat to kill him, and as an incitment to sedition, would depend on
the ¢one and manner at the time.

(b) Vide ante, p. 356.
( 863 )

who acted under it, of the protection and excuse which it
affords ; because it would not necessarily amount to abuse,
and the doctrine (a) that an abuse of an authority of law
takes away a justification, only applies to an entire act done
under common law authority ; and does not apply, even
then, to mere excess in Jact, but only to abuse; which in-
volves more than mere excess, and signifies a wilful, or
reckless, or conscious excess in the doing of something
which is, or may be, known not to be covered by the
authority.

However excessive might be the severities of the measures
taken, under martial law, for the suppression of the rebel-
lion, the excess would not necessarily amount even to an
abuse of martial law, still less take away the protection or

(a) This doctrine is, at common law (8 Coke, 146), that when a man
abuses an authority of law (é.e. common law), he becomes a wrongdoer
ab initio, and cannot justify at all; as if a landlord in distraining, or a
sheriff in levying, turn the party out of his house (Taylor vy. Cole, 1 Hen,
Blackst. rep. 355 ; Etherton v. Popplewell, 1 East, rep. 139); or remains, be-
yond the time allowed by law, a long and unreasonable time in possession ;
(Winterbourne v. Morgan, 11 East, 395 ; Aithenhead v. Blades, 6 Taunt. rep.
198; Ash v. Dawnay, 8 Exch. rep. 240; Peppercorn v. Hopman, 9 M. &
W. 618; Playfair v. Musgrove, 14 M. & W. 239). But in these cases the
law allows a definite time to do a definite act—to distrain, to levy, or the
like ; and the staying longer than necessary for it, or the doing something
quite different, is wilfully unlawful. The mere excess in degree, without
wrong motive, has not the effect, as, if a magistrate remand a man for ex-
amination an unreasonable time, he may be liable for the excess, but does
not lose his justification. (Davis v. Capper, 10 B. & C. 28; Cave v. Moun-
lain, 1 Man. & Gr. rep.) “ He who wilfully and knowingly violates the law
must take the consequences.” (Lord Arbinger, C.B.; Kerby v. Denby, 1 M.
& W. 336) ; and so it is in the abuse of an authority by cruelty, as in exces-
sive beating. (Oaks v. Wood, 2 M. & W., 355.) There, however, the act is
entire, and the excess must be such as that the party knew or might have
known it to be wrong. But, as already observed (vide ante p. 304), this doc-
trine of excess, in a legal point of view, has no application to distinct acts ;
as when a policeman beat a woman with a truncheon, having lawful au-
thority only to turn her out of the house. Still, even there, it was a defined
common law authority to do a definite act; and going beyond it, with
needless violence and wilful excess, and excess known to be unlawful. This
cannot apply to mere excess in the exercise of a discretionary authority, for
a military object, dependent on military judgment,
( 864 )

excuse which it would afford to who really, however erro-
neous, or excessively, acted under it, and for its object. That
might turn out to have been, in fact, excessive, i.e., more
than was necessary, which, at the time, might appear neces-
sary, and excess might arise from mistake in matters of
fact (a), entirely innocent, or from error of judgment, little
if at all culpable, or from some degree of rashness or care-
lessness.

How far the officers, in their evidence, succeeded in show-
ing that they had taken sufficient care in these summary exe-
cutions, it is not within the province of this work to enquire ;
it is enough to say that they sought to show it. But it is
proper to observe that, in doing so, they were placed in a
position of great difficulty and embarrassment. The Com-
missioners not only received the statements of the officers,
and cross-examined them thereon, but also received incul-
patory statements from any one, and, indeed, invited all
parties to come forward and make statements, inculpatory
or otherwise (b), and thus received specific charges of speci-

(a) Of a military nature, for instance, as to the numbers of the population
actually engaged in the rebellion, or the proportion of the population
disposed to join in it, and only deterred from doing so by means of the
terror inspired by measures of military severity ; the proportion of them
armed, or of the extent of organisation, or of the strength of the positions
they might take up, or the military force at command, or the prospects of
reinforcements, or a variety of other matters, as to which, more or less, the
Governor and military Commanders would have to go by hearsay, or rumour,
or report, or estimate, probably very erroneous; or, as it might turn out,
after the event, exceedingly exaggerated. But they would have to decide
at the moment, and mere mistake of fact, or erroneous judgment, might
lead to great excess, and be perfectly innocent.

(6) Not, indeed, that they invited accusations expressly, but they
invited al] persons to come forward and make any statements which could
throw light on the subject of their enquiry, and they received these state-
ments, although they were inculpatory, and although .they related, not to
the general nature of the measures adopted, but to particular instances of
alleged cruelty or excess, and though they were put forward as wanton acts,
and, therefore, as crimes, and so not within the scope of the enquiry. And,
further, they received any statements of this kind, as to the acts of private
soldiers, or volunteers, not only without evidence that these acts were
( 365 )

fic instances of alleged excesses or cruelties, These, of
course, could not be allowed to pass without such answer
as could be afforded ; hence they were involved, in reality,
in taking evidence on a vast number of particular cases, and
thus the Commission assumed the form of a vast fishing
inquisition, and of an informal trial of a great number of
alleged cases of misconduct, or criminality,

The onus of proof was here completely reversed, and those
who had been suddenly called upon to discharge a trying
and arduous duty, and save a colony from massacre, were
virtually put upon their trial, loaded with the most cruel
accusations (a), and forced to justify themselves as best they
might, and to do so, also, by strict legal evidence.

A good deal of evidence was given as to men taken
prisoners singly, on the roads or in their houses, or else-
where, and summarily executed, on the charge of having
been engaged in the rebellion. It being of the very
essence of martial law to establish a system of punishment,
more speedy and more terrible, and, therefore, more deter-
rent, than the proceedings of ordinary law (0), the legality

done by order of any officer, but, although, from the nature of the acts, it
might be presumed that they were not so, and though it appeared that the
officers were absent atthe time, and knew nothing of the alleged acts.

(a) Accusations of wanton cruelty, and of the infliction of death without
any cause or reason. All that the officers could say was, that in all cases
they had acted either on the evidence of circumstances or on positive testi-
mony, and upon what seemed at the time good grounds for belief. But if
they were examined, as if it lay upon them to bring forward legal evidence
of the guilt of the persons executed, and as though they were responsible
for not having got such evidence, it is not to be wondered at, that they
might, in some instances, appear to fail. ; ;

(5) Vide ante, p. 83. If large bodies of men were engaged in a wild
system of plunder and devastation, and, on the approach of the military,
either retired into their houses or the “ bush,” to escape detection or avoid
encounter, as they would evidently be ready, on the withdrawal of the mili-
tary, to resume their predatory course, it would be idle to allow them to
escape with impunity, and they could only, by reason of their numbers, be
deterred from pursuing their course by speedy and terrible punishment.
Their being within houses would no more entitle them to immunity from
the measures of severity incident to martial law, than their being in the
bush, assuming their guilt to be clear; and their being taken singly and
( 366 )

of these measures would rest upon the same foundation as
the legality of so dealing with prisoners taken in bodies;
there being an enquiry to satisfy the officers of their guilt,
their propriety, in particular cases, would depend upon the
degree of care taken.

And the importance of deterrent measures, as of the
essence of martial law, would have a material bearing upon
one of the main heads of enquiry, viz. as to the propriety
of the continuance of martial law (a). For if, as has been
shown, the scope of martial law is far wider than resistance,
and extends to, and embraces, all means and measures ne-
cessary for thorough suppression of the rebellion, then the
mere fact that the terror inspired by these deterrent mea-
sures had put a stop to resistance or actual insurrection,
would be no reason for discontinuing them, so long as it

not in bodies, would not make them less liable to summary punishment ;
and, on enquiry, their guilt was found to be clear, though their being found
in bodies, would of itself be a fact against them. And if it were lawful.to
deal summarily with prisoners taken in bodies, it would be equally lawful,
upon enquiry, to deal so with men taken singly; while, on the other hand,
if it were unlawful to deal with prisoners at all, then it would be equally
unlawful, whether they were taken singly or in bodies.

(a) In truth, the necessity for and importance of deterrent measures,
which, in the author’s view, are of the very essence of martal law, lies at
the root of the whole question, and of every part of it. Thus it is, that
the summary executions were vindicated, of prisoners taken singly or in
bodies, wé supra. Thus it is, that the continuance of martial law, after
actual insurrection ceased, was vindicated. It was said, that martial law
should have been withdrawn when resistance ceased; but it was forgotten
that the resistance had ceased only on account of the terror inspired by mar-
tial law, and, therefore, that there was every reason to believe that, at all
events, until a larger military force was distributed throughout the island
(vide ante, p. 220), the insurrection would be renewed. Those terrible
measures which were adopted, those summary executions, which struck
terror into the population, who had been indulging in pillage and devas-
tation, those very measures, and those alone, produced the cessation of
resistance. But terror is a motive which is purely temporary, and its
influence endures only so long as the cause of the terror. And if martial
law, or those terrible measures had been withdrawn, the opinion was, that
the immense numerical preponderance of the blacks would soon have given
them courage to renew the insurrection.
( 367 )

appeared that the spirit of rebellion was still unsubdued,
and that there was still a disposition to renew it.

The more those matters as to summary executions were
considered, the more manifest it became (a) that, so far as
regarded their legality, they resolved themselves into the
general question, already discussed in previous portions of
this work,—what is the true scope of martial law? and
whether it is limited to measures of resistance, or includes
all such means and measures, and, therefore, especially,
essentially, and above all, such deterrent measures, as may
be deemed necessary to the thorough suppression of the
rebellion, and prevention of its renewal.

The question of propriety, as to the degree of care taken
in these summary executions, and how far it was less, not
merely than might have been taken (6), but less than,

(a) For it is manifest that, if martial law is limited to measures of mere
resistance or arrest, as the military are, when acting in aid of the civil
power, any execution of prisoners, however clear their guilt, even although
seen to commit murder, would be illegal. If, on the other hand, the scope
is suppression, and deterrent measures are allowed, then any executions on
summary enquiry would be legal, supposing that enquiry real and honest,
however erroneous, or hasty, or rash; and these matters, which might be
highly censurable or culpable, being matters of degree, would be matters
rather of propriety than legality. And, whether the prisoners were taken
singly, or in bodies, on the road, in their houses, or in the bush, would
only be circumstances in their cases, circumstances to be considered, but
not conclusive one way or the other.

(6) The highest possible degree of care is never necessary, according to
our law, even in criminal trials, not even when they are capital. Thus,
there is no power, by our law, of adjourning a capital trial, although it
comes out that a witness is absent who might throw light on the case. And
juries may convict on evidence which is not conclusive, and often do so
convict, against the opinion of the Judge, and of every lawyer in court.
Such instances are frequent at the assizes. Our law of criminal procedure
is still somewhat rough and prompt, and retains not a little of the barbarity
of its origin. The procedure in foreign countries, though in some points
far inferior to our own, is certainly, in some respects, far more slow and
careful. The difference has been illustrated in a very interesting work by
Mr. Fitajames Stephen, on Criminal Procedure. It would be too much,
then, to expect from military men, on summary enquiries, the highest
degree of care. Reasonable care, ¢.¢., care reasonable under all the cireum-
stances, would be the utmost that could be expected. And less than this,
( 368 )

under the circumstances, ought to have been taken, in-
volved from its nature an enquiry, embarrassed with infi-
nite difficulty, both to the Commissioners and the Officers.
For it depended upon all the circumstances in each case ; as
to which it was easy, on one side, to give evidence ignoring
all circumstances of guilt; and difficult, on the other side,
without notes, and with imperfect memory, to give positive
evidence of such circumstances.

It appeared that the General in command considered
that, above all things, the power of life and death in the
disturbed district rested with him (a), that it was for him to
issue orders as to the course to be taken in the disposal of
prisoners, whether by summary enquiry or court-martial ;
that it was for him to give orders to carry out the capital
sentences. And there was a great deal of evidence (0), as
to the humanity, and care, and consideration with which
he had used and exercised this authority.

although it would be censurable, would not necessarily be culpable ; nor, if
there were any degree of care, would it be criminal or illegal.

(a) Thus, General Nelson stated that he gave orders as to the carrying
out of executions. For instance:—“ Morant Bay. The men convicted
yesterday will be hung to-morrow morning. You will be pleased to have
sufficient men to carry out the sentences. Ensign Kelly, commanding
detachment 1st West Indian regiment, will parade in front of Court-House.
Lieutenant Jones, commanding detachment Royal Artillery, will be pleased
to see that the prisoners now in jail are present when the execution takes
place.” Thus it was in Gordon's case, vide ante.

(b) Captain Ford’s evidence: —“ Witnessed acts of clemency on the parts
of General Nelson, Captains Hole and Adcock. As instances of their leaning
towards mercy, Brigadier General Nelson, on the arrival of a party of pri-
soners from Bath, sent for me, and told me to look over, and see if there
were any of my people among them, meaning, as I understood, that I might
exonerate them, as not having been present at the rebellion. I saw him
express the greatest annoyance that a man had been led to execution, and
who would have been hanged, but for his prompt energy in having him
removed from the gallows, on being told that the man had saved the lives
of some overseers, although convicted of other acts of rebellion.” Other
witnesses gave similar evidence. So it was proved that Captain Hobbs had
said, at the time, that he “was performing a very painful duty,” and that
he had, in the opinion of those present, shown a sincere desire, and taken
reasonable means, wnder the circumstances, to get at the truth.
( 369 )

There was this advantage, indeed, in taking evidence of
particular cases, that sometimes a single case (a) would be
illustrative of the whole character of the rebellion, and its
circumstances might go far to explain and excuse the
severities which had been inflicted, even some of them
which were contrary to the orders of the General in com-
mand, and most of the officers.

The practical course and result of the enquiry was this,
evidence was given that numbers of negroes (6) had been

(a) Thus, in the case of Mitchell, who was executed, a witness stated that
he had heard people on the estate say, that they would soon have the land
for nothing, and not pay any rent ; this was said when he was out dunning for
rent, about two months before the rebellion; and “ Mitchell was pointing out
the things about the place, which, he said, would be belonging to black
people ; there were some other black persons about the yard; Saw Mitchell
next morning with a cutlass in his hand; he came up to witness, raised
the cutlass, and said, “ by God, I have a great mind to chop your head off,”
and he struck his cutlass in a bale of bamboo, and after another man came
out and remonstrated with him, he left me.” What this man said, it was
manifest, only expressed what was in the minds of the hundreds who went
about, crying “ Colour for Colour,” and “ Kill the whites, that we may have
their places.” (See the evidence of Hire, Burke, Shortridge, and a hundred
other witnesses.) The witness then corroborated the evidence of Duffus,
who stated, that Mitchell threatened his life, for which he was executed.
(Evidence of De Pass.) Thus, also, a witness stated, that he went to Morant
Bay on the Monday before the war; was also there on the Wednesday, and
as he got there saw two women with a person’s tongue on a pole: they cried,
“this tongue won't tell any more lies again to heaven or hell.” One was a
black woman, and the other a brown woman.” This may explain, and perhaps
might seem to excuse, the fact that some of the women were flogged,
though against the orders of the General and the principal officers.

(6) The friends and relations of those who had been executed, came
forward and swore that their friends or relations had been shot or hanged,
as the case might be; and this, of course, was easy enough; and, evenif
the witnesses Anew the cause, the charge, or the evidence, which they might
not know, they would not be likely to state it very fairly or fully—if at all.
See, for instance, the evidence of Cecilia Stewart, who says she saw a friend
of her’s shot. “They said he was one of the rebels;” this she admits ; and it
is fair to presume that those who shot him thought so; but, unless legal
evidence could be given of the cause, that case would stand as one of wilful
and needless homicide. It was not always, perhaps, that witnesses were
forthcoming to prove the cause. Thus, one Dacre stated, truly enough, that
he saw 13 men shot under the orders of one of the officers, who, he adds,

BB
( 370 )

shot, hanged, or flogged, and, of course, it was represented
that it was without cause, and the officers in command of
the detachments in the district were then called upon, by
strict legal proof, to substantiate a sufficient cause in each
case. But as the number was necessarily great, as the
matters took place in haste, as it was never obligatory, and
often practically impossible to keep notes or records, and
as memory in individual cases might easily fail, and as,
moreover, strict legal proof, which is not necessary under
martial law, might not be forthcoming, the officers were
put in a position of great difficulty.

Thus it was that particular cases (a) might, at first sight,
appear to be ruthless murders, committed by the Provost
Marshal, or on the order of some military officer, and
it was a mere fortunate accident, perhaps, on which it
might depend, whether the officer thus implicated could be
able to produce witnesses to give evidence of sufficient
cause for the execution. The result of such enquiries, of
course, could not be otherwise than to elicit many false

said at the time he had a most painful duty to perform ; but fortunately the
witness was forthcoming on whose testimony they were executed ; and she
was confirmed; the case being that they had formed part of a band of blacks
who went to a house ingearch of the white owner, evidently with a view to
murder him. But if that witness had not been forthcoming? Prisoners
were brought from gaols to swear they were innocent, and that the witnesses
had stated falsely. What was such evidence worth ? -

(a) As in the case (which made a great sensation) of a man named Mar-
shall, which may be mentioned as typical of a class. Several negroes swore
that the man having first been flogged by order of the Provost Marshal
(and as this was not impeached, it is to be presumed it was right), he was
ordered to be hanged, merely because he ground his teeth. Now it hap-
pened that several British seamen were present, and it fortunately happened
that they had not left the island when the Commission sat, and they swore
that the man distinctly threatened the life of the Provost Marshal. This,
under martial law, was about as formidable an offence as could be com-
mitted, and beyond all doubt would be capital; the execution, therefore,
was fully justifiable as a matter of law. But it depended on the chance of
those seamen being in the island, whether the Provost Marshal would be
able to make out his justification, for his own oath, as being interested,
might not have been deemed sufficient against the oaths of several others. -
( 971 )

charges which it was difficult to meet, and thus to put
officers, who had acted honestly, in great jeopardy.

That the officers. were not reckless in these summary
enquiries, was shown by this, that they appeared (a) to
have distinguished carefully between cases of the mere pos-
session of plunder, and cases in which other circumstances
showed an active participation in the insurrection, especially
in acts of murder, or attempts at murder, and, in general
it appeared to be only in the latter class of cases the capital
penalty was inflicted. And when driven to act upon posi-
tive testimony, they did not rely upon it without enquiries
as to its credibility (0).

So far as the General or officers were concerned, for the
most part, they deemed it their duty, to the utmost, to re-
strain the infliction of summary severities, as with regard to
the burning of houses, or huts, in the disturbed district (c).

(a) Evidence of Lieutenant Adcock. ‘Prisoners were brought in. I
investigated their cases, and the evidence of constables and other persons
shewed that they had been engaged in acts of plunder; flogged some of
them; one man, whose name I don’t remember, was charged with having
fired upon the volunteers at Morant Bay on the 11th ; assembled a board of
officers, who took evidence on the matter, and sentenced him to death—
witnesses were not sworn, as I had no Bible—two magistrates told me that
the word of the constables could be relied on; he was ordered to be exe-
cuted; he was shot by the planters under Captain Ford.” So it appeared, even
in the letter (vide ante p, 242) of the volunteer officer, Captain Ford, which
had been much commented upon, that the mere possession of plunder
was never punished capitally ; and that so far as the officers were concerned.
men were never executed, but for active complicity in the rebellion.

(0) Vide supra.

(c) The General in command disapproved of it, except under great re-
strictions, and desired to confine it to the basis of those who were known to
have been actively concerned in the rebellion, and the officers in command
of detachments appear to have confined it to cases of houses belonging to
rebels, in which plunder was found. The memorandum of the Commander-
in-Chief to the Brigadier-General, was express on this point. The Major-
General would like you to be careful about burning villages, and not to do
so without it is clear the inhabitants have joined theinsurgents.”” he case
gives us no instructions, but leaves all to the judge. “ That it is cer-
tainly not to be done unless it is clear the inhabitants have joined the

BB2
( 872 )

»

The General in command likewise exercised this control
over summary executions, by means of strict restraints and
regulations with reference to the Provost Marshal. Evi-
dence was given by both the Provosts Marshal (a), at the
two chief military stations in the district under martial law,
as to their proceedings, whence it appeared that, as a
rule, they awarded no punishment, unless authorized by the
General in command, to do so, and executed no one except
under sentence by court-martial. And they stated the
number of prisoners they had dealt with, and how they were

rebels, and not necessarily to be done even then, but is to be a matter of
judgment, and a measure of military necessity.” And the Brigadier-General
issued orders in a similar spirit, and never approved of wholesale burning
of houses. ‘ Care to be taken that firing“of huts and buildings be not carried
to excess.” (Order to Lieutenant Adcock, October 20.) And reports of
inferior officers, in command of detachments, generally mentioned that
plunder was found in the houses which were burned. Colonel Fyfe, who
commanded the Maroons, issued particular orders on this head, with special
reference to the protection of women and children, upon whom, rather
than on the men, even when rebels, the injury would fall.

(a) Thus, Major Prendeville, the Provost Marshal at Kingston, stated,
that he did not inflict summary punishment until he received an order.
Major Anson was the officer commanding at Camp; eight who were tried
before court-martial were sentenced to death. Sentence was commuted on
five and carried out on three—these were, Frederick Jones, Edward Denton,
and Samuel Hargate. In that return you will find—Released, being inno-
cent, 54 ; released, reprimanded and cautioned, 7; sent to Morant Bay,
15; sent to the Aboukir, 15 ; sentenced by court-martial, 8 ; commuted, 5;
carried out, 3 ; sentenced to 50 lashes, inflicted, 5 ; sentenced to 100 lashes,
13; acquitted, 2; sentenced to 50 lashes, and pardoned, 1; sentenced to five
years’ penal servitude, 2; sent back to the Penitentiary, 1 ;—that was a
man who was sent from the Penitentiary with no charge against him.—
Deported, 10; remaining, and handed over to the authorities, 4. The
charge against Jones was for using traitorous and threatening language in
the Penitentiary: ‘‘If I had five of my countrymen, with a sword, I would
kill Mr. Horton, and get all the black men to rise,' like in St. Domingo.”
Denton was charged with murder—Sam Hargate, with having been taken
with arms in his hands, in open hostility against the State. Those were
the three who were executed. I was present at all the courts-martial—did
not attend as a member, but as prosecutor. Evidence was taken in writing

in every case, and all were preserved. The courts were conducted with all
the necessary forms, as near as possible,
( 373 )

disposed of, whence it appeared that a large proportion were
released or punished slightly

And though it was attempted to show that men had been
punished recklessly several times for the same offence, it
turned out that in such cases (a), the real truth was that
the man had committed several distinct offences, for which,
of course, under martial law, as under any other law, he
was liable to be punished. Thus, mere plunder would be
one charge, complicityin the rebellion another. So, threaten-
ing to murder or inciting to plunder, would be a distinct
offence, capital under martial law.

That the General in command considered himself bound
to exercise a control over summary executions, was mani-
fest (6), For, in fact, he did exercise this control, both

(a) Thus, the General admitted that a man, named Cowell, was sentenced
to receive fifty lashes and released ; and was afterwards taken up and tried
for murder on the 28th October. So it was also with « man named
Mitchell. Thus also, in the evidence of the man (Lake), who, at’ the
time of martial law, represented that it was being carried out properly;
and, before the Commissioners, came forward to prove excess, stating that on
one occasion, a man named Thos. Olgate was tried three times, first before
the military court-martial, where he was sentenced to receive seventy-five
lashes ; “ before he got it, he was brought before the naval court-martial ;
during his trial he mentioned to the President that he had already been
tried ; the President called upon the Provost: Marshal for an explanation ;
the explanation was that he had attempted to escape. Two days after, hé
was placed before the military court-martial for the same offence, differently
worded ; the first charge was for being with arms; for which he was sent
to receive seventy-five lashes ; the second charge was the same as the first,
and based on the representations of two persons, that if he was let loose,
their lives would be endangered, and he was sentenced to be hanged. Mr.
Gurney—I do not understand you. The Witness—The first charge was for
being a rebel with arms, and the second charge was for threatening to kill
some one. Mr. Gurney—These are two distinct charges, and [ cannot see
how the second charge was the same as the first, but differently worded.”
This is a specimen of the evidence given. The man had committed several
separate offences.

(b) Various passages in the evidence disclosed this. For instance, the
evidence of Lieut, Adcock disclosed that his instructions did not authorize
him to execute prisoners, brought in by other detachments than his own ;
the principle evidently being, that the officer was to be supposed to be per-
sonally cognizant of the cases of prisoners arrested by his own detachment,
( 374 )

with reference to officers in command of detachments, and
likewise with reference to the Provost Marshal. And in
was also shown by his directions (a), as to strict control by
the officers over volunteers and civilians.

It is very remarkable (a) that, for the most part, if not
entirely, any alleged instances of excess, or unnecessary
cruelty, were either committed by civilians, or by younger
officers, at the instigation of civilians, or by private sol-
diers (almost always black or native soldiers), without
orders, and out of the sight and control of their command-

ing officers.
That the General in command was conscious that the

responsibility devolved upon him of keeping as strict a
control as possible, over summary infliction of punishments,
especially capital executions, was manifest (6) from the

but would not be so of prisoners taken by other detachments. So, in
several other passages.

(a) Thus, one of the younger officers said he had been induced, by one of

the magistrates, to flog afew women. So Colonel Hobbs stated, that many
of the summary executions he had ordered, had been upon the representa-
tions of the magistrates, and their strong assurances that he might rely on
the witnesses. Thus also, one of the officers stated that he sent out a party
on one occasion to ascertain cause of flames which he saw one night ; he
returned, and reported that a Mr. Bunting had caused some houses to be
burnt; ‘‘saw Bunting next morning, and told him that he should report him
to his Excellency the Governor, for doing what he did; hesent an apology,
and asked me to take in consideration the losses he had sustained, and that
he had had his house burnt, and I forgave him.” All this showed the
necessity for keeping the civilians under strict melitary control.
_ (0) Thus, General Nelson stated, “he never allowed men to be shot by
order of magistrates,” and see his letter as to the Provost Marshal (ante
p. 205). (Evidence of Gen. Nelson.) ‘Heard that there were hundreds of
prisoners in the gaol, and I sent my aide-de-camp there, to enquire into their
cases, according to evidence furnished, to inflict corporal punishment if
necessary, exercising his discretion, in order to have the prison cleared —
would not allow Mr. Ramsay to order any person to receive 100 lashes.”

“Tt was never brought to my notice that people were shot by order of
magistrates ; a little while after I returned from Morant Bay ; his Ex-
cellency the Governor asked me if I had ever heard that a magistrate had
ordered people to be flogged ; I said, ‘ No, your Excellency, if I had, the
chances are, that I would have flogged him.” ,

“On the 28rd of October were tried four men and one woman; sen-
( 375 )

orders he issued either to restrain the Provost-Marshal or
civilians from inflicting such punishments, except in certain
classes of cases ; and, as a general rule, capital executions
were not authorized or allowed, except under orders of
officers. And all barbarities or floggings of women he
disapproved of.

It appeared (a) from the evidence of both the Provosts
Marshal, that they were kept under close control of the
General in command, and that a very large proportion of
their prisoners were released, or subjected to minor punish-
ments, and that it was only in a single case that a prisoner,
who had threatened to take the life of the Provost Marshal,
was hanged by his order.

In the only case (6) in which it was proved that the

tenced to receive fifty lashes ; the proceedings were sent to me ; approved.
and confirmed the sentences, except that on the woman, who I ordered to
be released ; I afterwards sent for the President of the court-martial, and I
told him that it was no use his sentencing women to be flogged, for if he
did, I would not confirm the proceedings; no woman was ever flogged with
my knowledge or with my order.” (Vide ante p. 137.)

(a) Evidence of Ramsey, Provost-Marshal at Morant Bay. .He handed
in a return of the number of his prisoners, and the manner in which they
were disposed of; from which it appeared that 500 or 600 were released,
and 177 hanged, of whom only one was hanged by his own orders; that
was the case of a man named Marshall, who had threatened his life, an
offence for which the General had repeatedly sanctioned the execution of
men. (Vide ante, p. 345.) In one case, that of a man named Bailey, he
was shot by the sentry, in altempting a second time, after warning, to escape.
The Provost stated that General Nelsonordered courts to assemble at Morant
Bay, and he obeyed the General’s orders. General Jackson ordered one
court to sit; sentences were not carried out on the prisoners tried by
that court, because he thought General Nelson had command, and he
waited till he came; four or five prisoners were sentenced to be
hanged ; of whom Bailey was one ; and he sent them to the tent under the
Provost Sergeant, with orders to keep them separate. General Nelson
ordered him not to do anything till he had heard from him ; six or seven
soldiers were flogged for mutiny. He stated, that he had very few persons
to guard the prisoners ; his guard consisted of only seven men.

(b) This case was made a great deal of, and Ramsey was actually given
into custody on a charge of murder. It was not anywhere stated that he
was not justified in the flogging, and several witnesses, British seamen, who
were on the spot, swore that Marshall threatened the Provost, as above
( 376 )

Provost Marshal had hanged a man without military order,
or sentence of court-martial, it appeared, on the accounts
given of the affair at the time, by eye-witnesses, and upon
the weight of credible evidence before the Commissioners,
that the man had threatened the officer’s life; and as the
General did not censure the execution, it may be assumed
that it was warranted by military usage, under martial
law, especially as it appeared that the General had cen-
sured this very officer for a comparatively trivial offence,
in the way of excess in the discharge of the duties of his
office, and had commended him, on the whole, for his con-
duct.

A good deal of evidence was taken as to the conduct of
these important officers, the Provosts Marshal (a), and

stated ; which clearly meant a threat of murder. (See the evidence of
Penny, Plumbton, M‘Closky, and Ramsey). There can be no doubt that,
whatever may be said of the moral character of the act, it was strictly
within the power of martial law. For a prisoner to threaten the life of the
Provost Marshal, is a far more serious offence than mere seditious words,
which, by martial law, are clearly capital. The seamen swore that, at
Morant Bay, the man (Marshall), while the flogging was going on, said,
“damn every white man, and God bless Bogle;” he said to Mr. Ramsey,
“TT will do for you”; ‘it was meant for Mr. Ramsey ; he turned and nodded
his head at him, and used the words.” And one Lake, a coloured man, who
was present, said at the time (see Levy’s evidence), that he never saw a more
determined expression of countenance, nor heard a more deliberate
threat. Whether it was so or not, would depend upon the impression
it produced on those who heard it. Assuming it to have been really de-
liberate, then it would clearly be an offence of a very formidable character,
and punishable capitally. (Vide per Macdonald, C. B., in Wall’s case.)

(a) As to the duties of these functionaries, see the letter of the General to
one of them (vide unte,p. 205), in which, while rebuking him for some
excess of zeal, and want of temper, he did justice to his general good con-
duct, and the trying nature of his duties. Many other witnesses gave similar
testimony. For instance, Lieutenant Astwood stated, “I considered it
necessary for the Provost Marshal to be strict under the circumstances.”
The following question was put by the Court : What was your opinion of
the general conduct of the Provost Marshal at Morant Bay? Mr. Astwood:
From what came under my observation at Morant Bay, I considered him
to be an excellent and efficient officer ; his position was a very trying one ;
the responsibilities of his office were very numerous, and I was under the
( 377 )

especially one of them, whose conduct was particularly
impugned ; and it appeared, on the testimony of the General
in command, and other officers, that on the whole their
conduct had been proper, considering the trying nature of
their duties ; and this was certainly the account given of it
at the time.

It was brought out more than once, in the course of
the evidence, that, under martial law, persons who commit
any excesses, whether in carrying it out, or in acts of mere
private outrage, are themselves liable to the summary
penalties of martial law (a) ; and the General, on more than
one occasion, denounced its penalties against those who
should inflict unauthorized severities.

The Secretary of State (6), it will have been seen, had
directed enquiries, particularly into the number of per-
sons summarily executed, or punished without trial by
court-martial ; implying, plainly, in accordance with
judicial opinions (c), that trials by court-martial, under

impression that they were faithfully performed ; I did not see any cruelty
towards the prisoners ; sometimes saw the prisoners given a few lashes by
a sailor, but never enquired into the cause ; saw a prisoner struck on his
shoulders, by a sailor, in the Provost Marshal’s absence, and on his return
called his attention to it, and he ordered it to be stopped.” And it was very
remarkable, and an illustration of the results of a fishing enquiry, that the
principal witness against him, a coloured man named Lake, had, at the time,
while events were fresh, given very different testimony. He admitted that
he did say, in one of his despatches, that the Provost Marshal was the
“yight man in the right place.”

(a) Thus, when asked if he had heard that a civilian had taken upon
himself to order floggings, he said with emphasis that he had not, and that,
if he had, he probably should have ordered him to be flogged. (Evidence
of General Nelson.) So it appeared that he had issued an order that the
officer in command of a detachment, should forbid any man to enter a house,
unless accompanied by an officer, and that any man found doing so, should
be handed over to the Provost Marshal for summary punishment. (Order
of Oct. 25, to Lieutenant Adcock.) So, in a letter to the Provost Marshal,
he told him that his peculiar province was to punish and repress such
excesses or breaches of discipline. (Vide ante, p. 205.)

(6) Vide ante, p. 244.

(c) Vide ante, p. 80.
( 378 )

martial law, are proper measures of precaution, dictated
by natural justice in all but the clearest cases, And this
had evidently been the opinion of the General in com-
mand.

The necessity for the courts-martial depended entirely
on the will of the General, from whom their authority
emanated(a) ; whether or not there should be acourt-martial,
was a matter determinable entirely by him, or the officers
acting under his directions, and subjected to his control.
The general tenor of his orders, or of the measures taken
under his sanction or example, was, that executions or sum-
mary punishment should be limited to cases of men taken
red-handed or found in arms, or in active rebellion; and
that, in cases not of that character, there should be courts-
martial, and legal (b) as well as military authority would
appear to support that view.

The Commissioners entered largely into the subject of
the trials, and convictions by court-martial—especially the
capital convictions and executions under sentence of such
courts. This was, perhaps, the most important head of
their enquiry (c), and it imposed questions as to the

(a) Vide ante, p.172.

(6) Vide Wall v. Macnamara, ante, p. 80, in which it is laid down that,
in case of mutiny or rebellion, it is proper to hold an enquiry which may
be by drum-head court-martial. The necessity or propriety for it would be
a question of circumstances. The General, in this case, had, it appeared
intimated that an officer ought not to execute men summarily, who were
sent in by other detachments than his own; as to the circumstances of
whose capture he could not be so personally cognizant, as he migbt be
supposed to be, in cases of men captured by the troops under his own
command.

(c) For reasons amply explained in previous parts of this work, the
common law finds ample legal powers for the resistance and suppression
of actual insurrection, and the summary treatment of those engaged in
actual outbreak. The great object and end of martial law is the sup-
pression of a state of rebellion by means of deterrent measures, especially
the summary trial and execution of the rebels taken prisoners, which
requires some enquiry ; and, unless they are taken red-handed, demands,
as a measure of proper precaution, trial by court-martial. The authority
of courts-martial, therefore, is the most important part of martial law,
( 379 )

authority or jurisdiction of such courts, and as to their
proceedings.

As to the question of jurisdiction, no doubt the Mutiny
Act and Articles of War apply primarily and properly only
to military persons (a), although there is authority for
saying that persons either paid or employed as military
persons, in the service of the Crown, would come under
their province. But it has already been seen (0), that, in
time of war, the Crown acts by its prerogative (c), and
that the Mutiny Act and Articles of War do not limit the
prerogative abroad (d). And, by the prerogative, the
Crown, or a Governor (¢), can issue commissions, which
will authorize courts-martial (f).

The question, therefore, as to authority to hold these
courts-martial, or to the authority of the courts so held,
would depend upon the general question, already amply
discussed (g), as to the power of the Governor to declare
martial law, and the effect of such declaration, in establish-
ing a state of war, which would enable him to exercise the
prerogative power of the Crown, and convey to the General
in command the authority to hold such courts on non-

and it rests on the broad ground that martial law extends military law
to all persons, including the authority of military courts-martial.

(a) Grant v. Gould, 2 H. Blackst. rep. 69.

(b) Vide ante, p. 3-

(c) Barwise v. Keppel, 2 Wils. rep. 314.

(d) Rea v. Suddis, 1 East. rep. 316.

(e) Bradley v. Arthur, 4 Barnwall and Cresswell rep. 301. “ Looking
into the Articles of War, it appears to be taken for granted that it is within
the prerogative of the Crown, and that not only the Crown itself, but
also, under certain circumstances, a Governor, may grant such commis-
sions. In many cases it must be essentially necessary,” &c. (Per Curiam
ibid, p. 311). The cases of war or rebellion were not mentioned, but no
doubt would come within the doctrine thus laid down.

(f) And, in point of fact, as already mentioned, (vide ante, p. 129), the
Governor issued a commission to Colonel Nelson, as Brigadier-General,
to give him field rank, and enable him to command the forces, and issue
commissions to hold courts-martial.

(g) Vide ante, p. 80.
( 380 )

military persons. For if the declaration had that effect,
and if the effect of declaring martial law was to apply
military law to non-military persons, then, in point of fact,
he did convey that authority to the General, and courts
held under his warrants would be lawful, and would have
as much power over non-military persons as military per-
sons.

The first, and most important question, would relate to
the source of the authority of such courts, which would be
the supreme military authority of the district. And then
there would be the question of jurisdiction in particular
cases, or whether the cases were within the cognizance of
the courts.

The General in command stated several important
points (a), in regard to trial by court-martial under mar-
tial law (6) ; as it was not material for him to ascertain
where the prisoner was apprehended, supposing there was
evidence of an offence under martial law, 4.¢., within the
district, and within the cognizance of martial law, but that
it was for him to decide whether the prisoner could be
tried by court-martial, i.e, whether the charge was within
its jurisdiction, though it was for the court to say whether
it was proved, and then for him to approve or disapprove
the finding in the sentence (c).

(a) Thus, as to the case of Flemming, he said, it was not his duty to
ascertain where the prisoner was apprehended, and he did not dosoin Flem-
ming’s case ; you had better ask that question of the officer who went out in
charge of the party who apprehended him. He ordered him to be tried, and
it was the duty of the court to see whether he was guilty or not ; he approved
of the sentence (Ev. of Gen. Nelson).

& (@) Vide ante, p: 177.

(c) All these points had an important bearing on the case of Gordon,
which will probably be long considered the leading case on the subject
(vide ante, p. 176, et vide post). That was an exceptional case, raising
questions of jurisdiction, which did not ordinarily arise, and therefore may
be best considered separately. But, as regarded the question of time, it
only raised the question, which was raised in most of the capital cases, as

to jurisdiction over cases arising before the declaration of martial law, as to
which, vide ante, p. 102.
( 381 )

There would first be the question of the authority to
convene the court-martial, and then the question whether
the case would be within its cognizance. And both ques-
tions, it appeared, were considered to be for the military
Commander, who convened the court, and sent the pri-
soners for trial.

Those who had sat upon courts-martial (a) gave evi-
dence as to the authority under which they had sat ; and it
appeared that they had sat under orders or warrants from
the General in command, as the supreme military autho-
rity in the district in which, while martial law was estab-
lished, the military authority prevailed.

Immediately upon the proclamation of martial law,
courts-martial were held, the Attorney-General himself
setting the example of sitting upon one of them (the first
that was held), for the trial of those implicated in the mas-
sacre, at which several were convicted, and condemned to
death. Yet this, of course, was for a crime committed
before martial law, though after the state of war had com-
menced. And it never occurred to the Attorney-General
that the courts-martial had no jurisdiction (0).

(a) Thus, Mr. Lewis, who had sat as president of a court-martial,
exhibited to the Commissioners the warrant or order he had received from
General Nelson, authorizing him to sit. And he stated that he had
adjourned at the General’s direction, the Provost Marshal being required
to attend another court. He at first was not told to take any notes, but he
did take some rough notes for his own guidance. Before he got leave of
absence he was asked for those notes, and he gave them. Hesat onall the
courts-martial held at Port Antonio. The Brigadier-General had all his
notes. He could, on reference to those notes, give the result of each case,
the name, charge, and sentence of prisoner. So Mr. Astwood, who also had
sat, stated that he sat under the authority of the officer in command, and
under a warrant from the Commander in the district. He read the form in
the Mutiny Act. Upon which the Recorder observed that the Mutiny Act
did not apply to martial law, which is true, as the works on court-martial
point out, as the Act only applies to military persons.

(b) The Attorney-General said:—‘ My colleagues were Mr. Fyfe, who
held the rank as Colonel of militia, stipendiary magistrate, and mem-
ber of the Legislative Council; Mr. Andrew Lewis, « Colonel of militia,
and formerly an Adjutant-General; Mr. P. A. Espeut, proprietor of an
( 382 )

As regarded the proceedings before the courts-martial, it
is to be borne in mind, that the scope of the enquiry was
rather moral than legal (a). It was probably, in this point
of view, the Commissioners entered so largely, not only
into the proceedings at the trials by court-martial, but also
the merits, that is, the guilt or innocence of the parties,
which, it is manifest, in any other view, would be entirely
irrelevant (6). If lawfully tried and fairly tried, that would

estate in the parish, and of several others; with Captain Hunt of the
marines, and Colonel of militia, as president.” The Attorney-General then
went on to state the nature of the proceedings before the courts, and the
way in which they were conducted. “We were all sworn, I believe, on the
exact oath administered to the courts in the army; I took no memorandum
of the number of persons who were tried, I think seven or ten ; I think four
or five were condemned to be hanged, one was a woman; they were all tried
in reference to the actual outrages and murders perpetrated a few days before ;
they were proven as the guilty participators and actual actors, on the 11th
October, on that little square, the Parade; this was proven the same as if they
were before one of the ordinary courts of justice. Most assuredly the woman
was the worst of the lot; she was recommended to mercy. Speaking for
myself, I may state that I concurred in the recommendation, that the sen-
tence should not fully be carried out on her, solely from policy, and not
because I did not think she was a murderess. The people had abstained
hitherto from violence to women, and I thought it was desirable not to
provoke them to it, to prevent brutality and cruelty in their future move-
ments towards females, as I was aware that they had gone up to ladies’
houses.” It will be observed that it never occurred to the Attorney-
General, as admitting of doubt, that the courts-martial could take cogni-
zance of crimes committed before the proclamation of martial law. (Vide
ante, p. 210.)

(a) Vide ante, p. 325.

(6) A man who has been convicted cannot disturb the verdict or finding,
on the ground that it is against the evidence ; neither can he do so, even by
convicting the witnesses of perjury; but that will be a good ground for
applying to the Crown for a reversal of the sentence, though the judgment
may remain ; for the judgment was all right on the facts, as they appeared in
evidence, and the sentence is remitted on moral, not legal grounds, as was
witnessed in a recent remarkabie case. So, in the cases in question, not-
withstanding that the proceedings of the court-martial were all perfectly
lawful, and proper, and fair, yet,,if on the real facts the Crown thought
that the parties convicted had suffered unjustly or excessively, the sentences
might be remitted; and in cases of persons sentenced to penal servitude,
this was done.
( 888 )

suffice for legal justification ; but, supposing, on the other
hand, everything legal and proper, or, on the other hand,
supposing any illepality or departure from what was fair
and proper, it would be material to consider, in a moral
point of view, what were the merits, and whether there had
been any failure of substantial justice.

The Commissioners entered at great length into an ex-
amination of the proceedings on trials by courts-mar-
tial (a), with reference, it is presumed, not to their legality
(for, assuming a lawful declaration of martial law, and a
lawful warrant, order, or authority from the General in
command convening the courts, that, it is conceived, would
be unquestionable), but with a view to see if their pro-
ceedings had been fair, and according to natural justice.
For, if it had meant more than that, it is conceived that it
would have implied an erroneous view of law, as regards
the result of declaring martial law, which, according to the
authorities already amply appealed to (6), is, to make the

(a) It is true that Mr. Gurney, in the course of the examination of
one of the officers who had sat on courts-martial, Mr. Astwood, who stated
that he had sat under warrants or orders from the General in command
“under the Mutiny Act,” (vide the evidence of Gen. Nelson, Mr. Lewis,
and Mr. Heslop, the Attorney-General, Mr. Espeut, and others), said, “that
it was well known that courts-martial, under martial law, had no authority,
the Mutiny Act not having any application to such cases.” But that must
mean that such courts did not derive their authority from the Mutiny Act,
which is quite true. In time of war, the Crown acts by its prerogative, not
under Mutiny Acts, which are only required in time of peace (vide Barwise
v. Keppel, 2 Wils. rep.). And in time of war, or invasion, or rebellion,
the Crown, by its military Commanders, does all, as regards military or
non-military persons, which, in time of peace, it can do by ordinary military
law, as against military persons (v7de Simmons on Court-Martial). The
effect of martial law is to make lawful, as against all persons, what in time
of peace is only lawful in regard to soldiers (et vide ante, p. 45).

(6) Vide ante p. 180. “ Martial Jaw is a ‘Lex non Scripta,’ it arises on a
paramount necessity to be judged of by the Executive. Martial law comprises
all persons. AlJ are under it in the country or district in which it is pro-
claimed, whether they be civil or military. There is no regular practice laid
down in any work on military law, as to how courts-martial are to be con-
ducted, or power exercised under martial law; but, as arule, I should say that
( 384 )

military authority, which, in time of peace, is only applic-
able to military persons, applicable, as it is in time of war,
to all persons, and to require nothing more than the observ-
ance of the dictates of natural justice and humanity.

The proceedings of courts-martial, whether with reference
to proceedings or sentence, can only be reviewed by the
General, and the Commander-in-Chief, or the Crown (a),
and not in a court of law. And when there is—as there is
in war or rebellion—a discretionary power by the preroga-
tive independently of court-martial, so that the act done
under the sentence of the court might have been done by
the Crown or the General without such a trial, then the
holding the trial itself is an act of discretionary authority(b).

When a court-martial, or any other lawful tribunal, how-
ever irregular or inferior, has sat and determined on a
matter within his jurisdiction, there is no such thing as a

it should approximate as near as possible to the regular forms and course
of justice, and the usage of the service, and that it should be conducted with
as much humanity as the occasion may allow, according to the conscience
and the good judgment of those entrusted with its execution. (Vide Ev.
of Sir D. Dundas, Judge-Advocate-General, before the Ceylon committee,
1849-50.) This quite corresponds with what is laid down in Simmons and
M‘Arthur on Courts-Martial, that the custom of the army is followed where
there is no fixed or definite rule. So it agrees with what Lord Lough-
borough says in Grant v. Gould, 2 H. Blackstone’s rep. 68, ‘‘ that courts-
martial are not bound by the rules of evidence as courts of law are.”
It would be extremely absurd to require the same precision in a charge
brought before a court-martial as is required to support a conviction before
a justice of the peace. (Lord Loughborough, C.J., in Grant v. Gould, 2 H.
Blackst. rep. 68.) So it agrees with what Macdonald, C.B., said in Gover-
nor Wall’s case, as to drumhead courts-martial (vide ante). Courts-martial
are mentioned by Bentham as courts of natural procedure, for the very
reason that they are not fettered by any particular rules. (See Bentham’s
Rationale of Judicial Evidence.)

(a) For this reason it is that military courts-martial remain in existence
till dissolved by the same authority by which they are held. (1 M‘Arthur
on Courts-Martial, p. 262.)

(6) Ex parte Poe, 5 B. & Ald, 638. For what the Crown (or the General)
had power to do independently of any enquiry, he may do, although the
enquiry should not be satisfactory toa court of law; or even though the
court which had conducted it had no legal jurisdiction to enquire. bid.
( 3885 )

court of error upon its judgment or sentence (a), and there
can be no reviewal of its proceedings, unless there 1s
some appellant authority provided by statute or usage, as
in a certain sense there is in the case of court-martial, by
the power of the General to review, and confirm or set aside
the proceedings (6). And it has always been recognized
that such courts may pass sentences which the law of
England would not warrant upon similar charges (c).

As regards the proceedings of the courts-martial, assuming
their jurisdiction, it has already been shown (d) that they
are inferior irregular courts, not proceeding by the course of
the common law, nor bound by its rules of evidence; and
that the sole question would be, whether they observed the
rules of natural justice ; that is, had some evidence on which

(2) Thus, in the case of a court-martial, the Court said, “ We are
not sitting in a court of error, to review the regularity of their
proceedings ; nor are we to hunt after possible objections. It is enough that
we find a sentence pronounced by a court of competent jurisdiction to
enquire into the offence, and with power to inflict such a punishment.”
(&. v. Suddis, 1 East. 317).

(6) By the rules of the service, the proceedings of a court-martial are
always subject to the review of the General in command, who, if he saw that
there was no evidence which would sustain the charge, or no charge that
could sustain the sentence, would be bound to refuse to confirm the pro-
ceedings. (See General Nelson’s letter post, p. 394).

(c) The court-martial was not bound to pass such a sentence as the law
of England would warrant upon asimilar charge. (R. v. Suddis, 1 East.
317.) Yet that was in time of peace; and the sentence, which was one of
a long term of penal servitude, was one which would not have been
warranted by the law of England, in such a case.

(d) Vide ante, p. 80. In Rex v. Suddis, East. rep. 316, a case of a
court-martial abroad —which, by the Artigles of War, had that discretionary
power which, in time of war or rebellion, courts-martial have ; it was said by
the court, that the proceedings and the judgment were not governed by the
law of England; and that, as the court-martial had jurisdiction, it was
enough, if the substance of the matter, or the corpus delictz, sufficiently
appeared, to enable them to get at the truth and justice of the case. The
natural leaning of the courts of common law, it was said, was in favour of
prisoners and judges, and gave way too easily to formal objections on the part
of the prisoners ; but judges, in our foreign possessions abroad, were not
necessarily bound by the rules of proceedings in our courts here.

co
( 386 )

they might honestly, however erroneously, proceed, and
gave the prisoners an opportunity of making their defence.

Moreover, even in the courts of common law (a), although
the courts will adhere to and enforce their particular rules
and positive rules of evidence, practice, or procedure in the
course of the trial, they will not disturbafinding inacriminal
case (0), even although it is capital, on account of a departure
from those rules, and the verdict is final; and, as a matter of
law, even if it is against the prisoner, no new trial can be had.
And, further, even in a civil case (c), in which a new trial
may be had, the courts will not grant it on any such
ground, unless they can see that there has been a verdict
contrary to law, or that substantial injustice has been
done.

It is well established (d), that even in judicial proceedings,

(a) Inacriminal case, there can be no bill of exceptions, and no writ of
error, without the fiat of the Crown, and no new trial (in felony), and no
appeal upon the facts, and only on the law with leave of the Judge. And
if the jury convict, as the author has often known a jury do, without suffi-
cient evidence (provided there is any), and in defiance of the advice of the
Judge, there is, legally, no remedy, for the weight of the evidence is entirely
for them. Nay, further, though a rule of practice requires that.an accom-
plice should be confirmed, if they choose to convict upon it, without any
confirmation, their verdict cannot, in law, be disturbed.

(6) As the admission of evidence, not receivable, in law.

(c) Thus, as the absence of witnesses and refusal of adjournment (JZoare
v. Silverlock, 19 L. J., C. P., 215), or the plaintiff obtaining a verdict, with-
out calling a witness, whom he ought to have called (Honeyman v. Lewis,
23 L. J., Ex. 204), or allowing the wrong party to begin and reply (Brun-
ford v. Freeman, 5 Exch. rep., 334. Butler v. Brayne, 5 C. B. 155). And
so in numerous other instances. (See notes to Dickson v. Peel, 3 Fin. rep).

(d) Thus, per Holt, C. J., said, “ of common right, the party ought to be
summoned, if possible, that he may have an opportunity of making his
defence, and it is abominable to convict a man behind his back (Q. v. Dyer,
6 Mod. rep..41). It is against the law of England, that a man should be
condemned, without notice to make his defence (King v. Gregg, 8 Mod.
rep. 3). And it is contrary to natural justice, that a mau should be degraded
without being heard (King v. Chancellor of Cambridge University, 2 Lord
Raym. rep. 1334), (So per De Grey, O. J., Fisher v. Lane, 3 Wils. 247).
This is ald that bas ever been held necessary in such cases. And it has
been often held, on the other hand, that such inferior courts are not bound
by rules of evidence which bind superior courts (Tindal, C.J +, Douglas v.
( 887 )

in courts not bound by the rules of the common law, all that
1s necessary to satisfy natural justice, is a fair hearing and
opportunity of defence; and it is, no doubt, contrary to
every principle of justice, that a judgment should be pro-
nounced, without giving the party an opportunity of
adducing evidence (a). But, in the exercise of an irregular
power, like that of martial law, nothing more than natural
justice is obligatory in point of law; and natural justice
has never been held to involve more than a fair hearing (6).

The enquiry, therefore, into these trials by courts-mar-
tial did not relate merely to the legality of their proceed-
ings, but rather had a much wider scope,—their fairness and
propriety. With regard to the cases of those who had been
tried by court-martial, the Royal Commissioners entered,
not merely into the question, whether they had been fairly
tried according to military usage and natural justice (c),
but into the question, whether they were guilty or not, and
whether they were guilty of offences which, at common
law, would justify the penalty, which would have been
wholly irrelevant to an enquiry as to legality.

Assuming the absence of lawful authority in the courts-
martial, every single act done was illegal, and every execu-
tion a murder. Assuming their lawful authority, then, of
course, sentences of imprisonment or penal servitude would

Forest, 4 Bing). Al this has been expressly applied to proceedings before
courts-martial. It would be extremely absurd to expect the same precision
in a charge before a court-martial as in a conviction before a magistrate
(Per Lord Loughborough, C.J., Grant v. Gould, 2 Hen. Blackstone's rep.
68). And they are not bound by the rules of evidence, which prevail in
the common law courts (/bid et vide, Rex v. Suddis, 1 East. rep. 327). The
rules of natural justice bind a// tribunals, and a man must never be con-
demned without evidence, or unheard.

(a) Per Lord Lyndhurst, C. B., Capel v. Child, 2 Cro. & Jer. rep. 550.

(b) R. v. Smith, 5 Q. B. rep. 614. In that case the doctrine of natural
justice was carried to its extreme extent, in holding that a man ought to
be heard in explanation, even of what is matter of eyesight. No doubt,
that would be the better and safer course in serious cases (See the Author’s
notes to Dickson v. Peel, 3 Fin. rep. 553).

(c) By which, of course, all courts are bound, but courts-martial are only
bound by these rules, and by no other, and mere formal rules.

cc 2
( 388 )

be as legal as the infliction of floggings or of death, for
the power to inflict the larger punishment would involve
ths power of imposing the lesser one; and it has been
held (a), that such sentences may be inflicted by courts-
martial, if they have lawful authority and jurisdiction.
Accordingly, many of the prisoners (b) were so sentenced
to terms of penal servitude or imprisonment.

Prisoners (¢) thus sentenced were brought from prisons
and penitentiaries to swear that they were innocent, and
that the witnesses who had given evidence against them
had given false testimony; but even they admitted that
they had been tried; that witnesses had given evidence
against them, and that they knew what was stated against
them, and were heard in their defence; and it is conceived
that this is all that could be material in such an enquiry.

(a) Rex v. Suddis, 1 East rep. 318. There a prisoner was sentenced to
transportation for fourteen years, and in a case in which,at common law, no
such sentence could have been inflicted. And the court said that, as the
court-martial had jurisdiction, and a discretionary power of punishment, it
was enough.

(6) Upwards of a hundred, all of whom, however, were afterwards liberated,
through, it was said, potion on the part of the Colonial authorities,
that when martial law ceased, the validity of their sentences ceased. But
this would be such an obvious error that the step must have been taken
on some other ground. (Vide post).

(c) Take, for instance, the case of Thomas Williams, brought over from
the General Penitentiary, under a writ of habeas corpus. He said he was
made prisoner and tried before court-martial. He had evidently set up
that he was forced to join the rebels, for he stated that the court said,
“when you saw those rebellious people, why did you not look for a gen-
tleman.” He said “ Mrs. Paterson said that she knew me and saw me among
those looking for her husband, and that I could not have been looking for
him for anything good”—but he said he never went to the house, nor had
anything to do with it—though he admitted he was not working ; the court-
martial, after he was tried, sent him to the penitentiary for seven years,
The man said he was not tried fairly, but suppose all the prisoners who
have been convicted before the two learned Recorders were examined as to
their respective trials, they would most likely declare the witnesses false—the
judges partial, and the jurors prejudiced. What was the worth of such
evidence, especially when the witnesses examined before the court-martial
repeated their evidence, it is not material to consider.
( 389 )

To the question of legality, it need hardly be observed,
the guilt or innocence of the parties executed or punished
would be irrelevant. No matter how clear their guilt, if
the courts had no lawful authority, their trials were utterly
illegal. On the other hand (a), although they were inno-
cent, if the courts had lawful authority, at all events if their
trials were fair (b), their convictions would be perfectly
legal.

Nor would the innocence of the persons convicted be,
necessarily, any element in the consideration even of the
propriety of the trials, for it is manifest that the trials
might be perfectly fair and proper, although the verdicts
turned out in the result to be wrong, or even were wrong
at the time, in the opinion of others (c). Evidence may be
erroneous, or the judgment formed upon it may be erro-
neous, although the trial is perfectly legal, and perfectly
proper and fair. The criterion as to the propriety or fair-
ness of the trials would be, the evidence as it appeared on
their trials.

And, further: in considering the evidence on such trials,
a distinction must be drawn between its admissibility and its

(a) The innocence of parties convicted, even if afterwards clearly proved,
would not necessarily show any impropriety, even in the trials; cases have
occurred in which it has been proved that persons, tried before able and
experienced Judges, turned out to be innocent.

(0) It is not, perhaps, clear, how far the want of fairness in the ¢rials,
assuming lawful authority in the courts, would render the trials unlawful, or
invalidate the sentences. An utter want of hearing would probably have
that effect. But there might be some amount of unfairness caused by the
belief in the prisoners’ guilt, which, if the evidence made it clear, would
not invalidate the verdict, however censurable it might be. And here,
again, there would be scope for the enquiries of the Commissioners, if not
as to legality, as to propriety.

(c) As already observed (vide ante, p. 194), there is nothing on which
men differ so much as to the effect of evidence, especially when it is cir-
cumstantial, or presumptive, or depends on probabilities, for these are
necessarily matters of opinion. And so, as to the credibility of positive
testimony, it is always, more or less, a matter of opinion. And opinion is
always, more or less, arbitrary and uncertain, and depends on individuality,
having necessarily to do with their mental character or power.
( 390 )

sufficiency; and as to its sufficiency, a distinction must be
drawn between its credibility and its effect. For the purpose
of judging of the sufficiency of the evidence—as courts-
martial under martial law are not bound by legal rules of
evidence (a@)—all the evidence must be assumed to have been
admissible. And any objections to any part of it can only be
considered as going to its credibility or weight, which would
depend on circumstances, and the effect of the rest of the
evidence(b). That, it would necessarily be for the court to con-
sider, and, in judging of their finding, or the sufficiency of the
evidence as a whole, it must be assumed not only that it was
all admissible, but that it was all, or may have been, in their
opinion, credible.

Legally, of course, the only question—and, morally, the
great question—was whether the trials were fair. So far
as appeared (c), on the evidence of either civil or military

(a) Vide ante, p. 80.

(6) For that might be strictly and legally admissible, and might so
confirm the questionable evidence as to outweigh any objections to its
admissibility or its credibility; and, on the other hand, the questionable
evidence might confirm the strictly legal evidence, which, in itself, might in
strict law be sufficient to sustain the verdict.

(c) Evidence of Colonel Hunt, who accompanied the Governor to Morant
Bay, and went to Port Morant—* A trial, you may call ita court-martial,
was held—I was the President—two members of militia were members—
Flemming, a boy, and three or four others were tried ; Flemming was sen-
tenced to death, the boy to receive fifty lashes, and the rest were let go. I
first swore in the members, and after that the senior member administered
the oath to me: witnesses were sworn, and we took notes on the back of a
bill, the only bit of paper we could get; four or five witnesses gave evidence.
When I got to Morant Bay, I sat on another court-martial; Mr. Heslop,
militia, and Mr. Espeut, militia, with Colonel Lewis, militia, as members ;
three men were sentenced to death, one to be flogged, and a woman to
death, with a recommendation to commute the sentence to transportation
for life ; the sentences were carried out on all. We then went back to Port
Antonio to see the refugees; at Port Antonio, sat on another court—the
members were sworn in the same manner, and evidence taken; the Attorney-
General was present as a spectator, and assisted me in compiling the ques-
tions to be asked ; 27 were sentenced, and the proceedings handed to the
General ; after that we returned to Monckland. I saw punishment inflicted
on the rebels, according to the evidence against them ; no one was punished
( 891 )

persons who were present or assisted at courts-martial (at
some of which the Attorney-General was present), speaking
generally, the proceedings were reasonably fair, and the
prisoners had fair trials; the best evidence that could be
had on the spot being taken, and the prisoners heard
in defence, and no reasonable application for enquiry
refused.

So much attention was given to the question, that it was
manifest the Commissioners deemed it, in every point of view,
the main consideration. It appeared (a), from the evidence,

before being tried.” So the Hon. Mr. Espeut stated :— Different courts-
martial were held after we landed. There was one held the same day we
landed ; four or five persons were tried. Colonel Hunt was present ; notes
were taken of the proceedings. The courts were, in my opinion, fairly con-
ducted ; opportunities were offered to the prisoners to prepare their defence.
No application was ever made to any of the courts-martial I was on to
afford time ; if they asked us to allow them to examine a witness, and that
witness was not present, we remanded them. We remanded many. Some
were tried singly and some in batches. We sat at Port Antonio for seven days,
and went to Morant Bay and sat till 6th November.” So George Ffrench,
stated :—*‘I am clerk of the vestry and collector of dues in Portland—I
presided over courts-martial held in Portland in the months of October and
November last ; the records were forwarded to the General; sat by direction
of Captain Luke and Captain Hole. All those who were tried, flogged, or
executed, were tried by court-martial, and evidence taken against them 3
minor cases were handed over to the Provost Marshal by Captain Hole, and
the Provost Marshal took evidence against the prisoners ; they were cases of
larceny; but actual plunderers, murderers, and cases of arson were tried by
court-martial.

(a) Evidence of Mr. Warmington:—“ Saw an immense quantity of
prisoners brought over; they were identified by constables ; they were first
examined by Captain Hole, and sent for trial at the court-martial. Those
who were not proper subjects for court-martial he disposed of himself; they
were flogged. Very few were disposed of byhim. About thirty or forty were
flogged, received from fifty,to a hundred lashes. The court-martial sat at
Muirton; thirty-three were executed up to the 5th of November. Not one
was executed without being first tried by court-martial. Captain Hole took,
the greatest pains in sifting the evidence before he sent them for trial. Held
a commission as Lieutenant of volunteers. Sat as President of the court-
martial, associated with Ensign Cullen of the 1st W. I. regiment, and
Ensign Lewis of the 6th Regiment.” Evidence of Mr. Ford:—“ Captain
Hole, to whom I sent prisoners for trial by court-martial, wrote 10 me more
than once, for further evidence, saying he would not execute any man on
( 392 )

not only of the officers, but of civilians, that the officers
who sat upon or directed courts-martial, took the utmost
care to secure a fair and proper trial in every capital case ;
and that, as a general rule, except prisoners taken in arms

or red-handed, none were executed without trial by eourt-
martial.

In two cases (a), which, from their close connection with
the character and nature of the disturbances, or the very
outbreak of a premeditated rebellion, and a conspiracy for #
massacre, and also as typical and remarkable cases, were
deemed of greatest importance, the evidence taken before
the courts-martial was gone into again at great length, and
with the utmost care.

The Commissioners entered particularly into the case of
Gordon, the person who had been, by order of the Gover-
nor, arrested in the place excepted out of the declared dis-
trict, and sent into it (6), with a view to his trial, if there

one witness’s statement. Captain Adcock, who was my immediate Com-
mander, gave a very resolute and definite caution to the volunteers, that he
would not permit or overlook it, if any previous disagreements or prejudices
were allowed to influence the testimony against witnesses, whom, he said, he
should deal with solely for acts during the rebellion.”

(a) These were the cases of Gordon, and of his agent Lawrence. The
latter was first tried, convicted, and exeeuted for complicity in the mas-
sacre, the main evidenee being that of a Mrs. Major and her servant, to the
effect that, on the day of the massaere, and some hours before it, and at a
distance, he used expressions which showed a knowledge that it was to take
place. These witnesses were examined before the Commissioners.

(6) Evidence of Governor Eyre:—Mr. Eyre said it was by his direction
that Gordon was apprehended in Kingston, whither he had fled. Gordon,
it was true, surrendered ; but not before it had become matter of positive
certainty that the police were close upon him, and must soon discover his
hiding-place. Previous attempts had been made to arrest him at his own
residence, which was situated within the proclaimed district. Mr. Gurney
asked the witness what was the information which led him to believe that
it was of importance to apprehend Gordon, whether in the disturbed dis-
trict, or out of it. Mr. Eyre said that, when in that district he had heard,
from many quarters, a great number and variety of facts, which led him to
believe that Gordon had been in communication with the chief rebels, and
was, indeed, the prime instigator of the outbreak. The same opinion was
universal at Kingston. “Amongst other things, I was informed that some of

walk. get Xagpnts | adap “sieges
( 392}

should, in the opinion of the General in command, be
sufficient evidence to warrant it. For that arrest and
removal, no doubt, he was responsible, and they conducted
his examination, evidently with a view to the propriety of
the measure, and not merely with reference to its legality,
as to which, indeed, many of the topics they entered into
would be irrelevant.

So far as regarded the propriety of the arrest and
removal of Gordon, with a view to his trial by court-
martial, which was an act for which the Governor would be
morally, though not legally responsible, it is manifest that,
had there been any ground for supposing that justice would
not be impartially administered in the island, and that a
conviction, even on sufficient evidence, would not have
been obtained (a), in such a case, it would have been a
good reason for sending the prisoner for trial before a court-
martial (assuming that his punishment was deemed neces-
sary) ; and if the delay which would be caused, even by a
special commission of oyer and terminer, to try the case,
would have prevented the deterrent effect deemed essen-
tial, it would have been an additional reason for taking
the other course. And on both points evidence was taken

by the Commissioners.

the rebels had declared Gordon to have been the cause of their coming to
the gallows.” (Vide Evidence of Espeut and others, vide also the Evidence
of Colonel Hobbs and Colonel Nelson, who had heard it from prisoners
who were executed.)

(a) Evidence was given that the jury system was such, the great body
of the jurymen being coloured persons, that it was impossible to obtain
fair trials of persons belonging to that class ; that the juries went into the
box resolved to acquit the accused, whatever might be the evidence. (Kv. of
Walcott and Williams.) This being so, of course it would have been per-
fectly idle to put upon his trial a popular coloured person, for an offence
like sedition, or seditious conspiracy, which is precisely that in which there
is most difficulty in obtaining a conviction, from the legal difficulties which
surround the subject, and in which, therefore, the least degree of bias in
favour of the Crown would ensure an acquittal. If the Governor and his
Council really believed that Gordon was legally guilty, and his conviction
necessary for the entire suppression of the rebellion, this was a most

material consideration.
( 394 )

In a legal point of view, it is manifest that, in this or in
every other case (a), the putting the prisoner upon his trial
was entirely the act of the General in command (0), as also
was the framing of the charges, the examination of the evi-
dence, and the approval of the proceedings, and the trial,
and the sentence, which he, as military Commander, had
approved, and submitted, not to the Governor, but to the
Commander-in-Chief.

So, in his evidence (c) before the Commissioners, the
General assumed the entire responsibility of putting the
prisoner upon his trial, stating that the Governor had sub-
mitted to him the question, whether there was sufficient
evidence to have him tried, that is, whether the evidence
would sustain any charge within the cognizance of a court-
martial, and it was he who decided that there was; who
proved the charges, convened the court, conducted its pro-
ceedings, and approved its sentence,

It could only, therefore, have been with reference to the

(a) Vide ante, p. 190. °

(b) He so stated, in his letter to General O’Connor:—“ Sir,—After six
hours’ search into the documents connected with the case of G. W. Gordon,
I found that I had suficzent evidence to warrant my directing his trial. I
prepared a draft charge and précis of evidence for the court. The president
having transmitted them, I carefully perused them. The sentence was
death. I considered it my duty fully to approve and confirm. I enclose
the whole of the proceedings of the court for your information, as you may
desire to see what evidence led to the conviction of so great a traitor. J
have not furnished any report of the court to his Excellency the Governor,
because, as his Excellency is now at Kingston, I apprehend all my report
should be made through you, my immediate commanding officer. Hoping,
as heretofore, to gain your approval, I have the honour to be, &. A. A.
Nelson, Brigadier-General, commanding the field forces. To Major-General
O’Connor, C.B.”

(c) Evidence of General Nelson. “I received G. W. Gordon on the 20th
of October; he was landed from the Wolverine, and then placed under my
charge ; received no instructions whatever, except that I received a box of
documents; when I went on board I was instructed by his Excellency the
Governor to examine the mass of papers, and, if I found sufficient evidence, to
have him tried ; went ashore; went through the papers, and selected them ;
the court-martial was to assemble under my orders ; J framed the charges ;
the proceedings were sent to me for confirmation.”
( 895 )

propriety of the Governor's conduct in ordering the arrest,
with a view to a trial by court-martial, and in allowing
the execution of the sentence, that the Commissioners
entered (a) into enquiries as to the grounds of the belief in
the prisoner’s complicity in the rebellion ; and particularly
of his actual intent, especially with reference to the graver
charge of inciting to actual insurrection and massacre.

As regarded the arrest and removal of the prisoner, for
which alone the Governor was responsible, evidence was
entered into, as to whether the facts justified him, morally
as well as legally ; and as to this, persons in the highest
position, and of the best means of information, firmly
believed the prisoner to be the author of the rebellion ; and,
on the other hand, there was sworn evidence of an act of
seditious incitement in the declared district, for which he
was liable to be tried there, and nowhere else (6).

(a) Thus, in the course of the examination of the late Governor on this head,
Mr. Gurney —“ You mention his having been immediately connected with
the leaders of the outbreak. Was that anything more than a political con-
nection?’ Mr. Eyre—“ Political, personal, and religious, to the best of my
belief. I had reason to believe that, whatever his object may have been»
the language used by him had really led to the insurrection.” Mr. Gurney
—‘ Had produced a state of feeling which led to the insurrection? But
had you received any information tending to show that he was the instigator
of this particular outbreak?” Mr. Eyre—“ We know that he had circulated
seditious placards, containing attacks upon persons by name, upon some of
those very persons who were subsequently murdered. I had seen the
seditious placards in which these attacks were made, and prior to the cap-
ture of Gordon, I ascertained that he was the person who circulated the
placards. I have since discovered that it was he who wrote them, the
original draft of one of the placards, in his own hand, having been found in
his possession. I refer to the placard headed ‘The State of the Island.’ ”
All this, of course, as the learned Commissioner was well aware, was not
material in a legal point of view, whether the trial was legal or illegal. If
legal, as it could not be so unless martial law existed, sedition was capital,
and actual intent immaterial (vide ante, p. 181). If illegal, then again, in
a legal point of view, the guilt of the prisoner, and, still more, his grades of
guilt, would be wholly immaterial, his execution was, in a legal sense, a
murder. But, in a moral point of view, all this was most material.

(b) Thus, one of the Judges, Mr. Justice Ker, stated: “I consider that the
dissatisfaction which prevailed in this island is mainly attributable to the
teachings of such persons as the man Gordon, and am certain that the oceur-
( 396 )

It has already been seen (a) that the scope of the Com-
mission, under this second head of enquiry, was rather the
moral than legal character of the conduct of those engaged
in measures of suppression. And this applies especially to
the enquiry into the cases of those tried by courts-martial,
and the observations of the Secretary of State, especially as
to Gordon’s case (b), seem accountable on no other view.

Their examination also appeared, in accordance with the
terms of the Secretary of State’s despatch on the subject (ce),
to imply that, to the Crown, the Governor had to justify

rences were caused through a treasonable agitation by the man just men-
tioned.” And Mr. Westmorland, a member of the Council, states that the
Executive Committee, in their official capacity, considered the arrest of
Gordon, and were consulted by the Governor as to his arrest ; and there was
an affidavit from the post-mistress at Morant Bay, that communications had
passed between Gordon and Paul Bogle (vide ante, p. 181). The Governor
told him that he was going to arrest Mr. Gordon, and asked him if he
approved of it, and he said “Certainly.” He was not consulted about him,
after his arrest, by the Governor, the General, or anybody else, and took no
further interest in Mr. Gordon’s case; he was handed over to the military
authorities.” So that, accoiding to the view of this member of the Council
the responsibility of Governor and the Council ended with the arrest, and
that the case then rested with the military authorities.

(a) Vide ante, p. 315.

(6) For the Governor was told that the Government desired to see it
clearly established that Gordon was not executed until circumstances had
been proved against him which deserved death, and that his death was
necessary, &c. (vide ante, p. 286), as the Governor, nor any one else, who
had acted under lawful authority, could not be called upon legally to
establish anything ; but those who accused them of abuse were bound to
prove it. And legally, of course, they could not be called on to prove that
the execution was necessary, if the trial was lawful. But, morally, it would
make all the difference. Neither could he be legally called upon as
Governor, “clearly to establish ” that crimes had been found against Gordon
which deserved death, for that was the business of the court-martial and the
Commander-in-chief. Still less could the Governor be called upon “ clearly
to establish” that the prisoner had committed a crime which, at common
law, was capital, seeing that he was tried and convicted, under martial law
which makes many offences capital, only venial under common law: seditious
words, for instance, with or without any intent to cause rebellion.

(c) Vide ante, p. 236.
( 897 )

himself morally for the arrest and trial, by establishing (a)
that some crime had been proved against the prisoner, for
which he was liable to the capital penalty, and that his death
was necessary for the suppression of the rebellion. But this,
it is to be presumed (6), pointed not to legal justification,
but to moral justification, in the judgment of the Crown, for
allowing the trial and execution.

For the same reason, and upon the same grounds, the
Commissioners entered into the question, whether he
was guilty of inciting the people to sedition (c), or to
massacre ; that whether he used such incitements, in point
of fact, that is, by the use of language calculated to have
such an effect ; or whether there was express evidence of a
design and intent to produce that effect.

The scope of the enquiry being far larger than mere
legality, and embracing, as it did, the moral propriety of the

(a) In strict law, it is conceived, the Governor was not called upon to
establish anything at all, for having acted in the exercise of lawful authority
in having the man arrested on suspicion of complicity in rebellion and
felony in a certain district, and sent him there in custody, where he was
liable to be tried either at common law or by martial law ; his legal respon-
sibility ended there, and it will be seen that he was not, and could not,
be legally responsible for the prisoner being put upon his trial by court-
martial, because he had no authority to direct it, and did not direct it ; and
the sole authority to determine whether there was jurisdiction to try the
man by court-martial rested with the Commander (vide ante, p. 178, et
vide p. 174). But, nevertheless, no doubt he was morally responsible for
allowing the man’s execution, and this was an enquiry into his conduct on
the judgment of the Crown.

(0) For reasons above given ; for, otherwise, the view taken by the Com-
mander would be erroneous, since sedition is capital by martial law.

(c) A sedition is capital by martial law (vide ante, p. 187); it would not be
legally material whether the prisoner was guilty of inciting to sedition, or
whether he was privy to a conspiracy to murder, any more than it could be
legally material, supposing him to be guilty of any capital offence, whether
his execution was necessary for the suppression of the rebellion. But, ina
moral point of view, and in the opinion of the Crown, for the information of
whose conscience the inquiry was conducted, it would, of course, be most
material, whether the man was guilty of the greater or the lesser offence ;
and, in the latter view, whether there was any necessity, or apparent necessity,
for his execution.
( 398 )

proceedings adopted, it would comprise, as regarded this
“Jeading case,” the sufficiency of the evidence, morally as
well as legally, to justify, not only the arrest and the
trial, but the execution (a). And, as it is manifest that,
as this must a good deal depend upon the moral effect of
the evidence, and as there is nothing in which the difference
of men’s minds so influences their judgment, on a matter
necessarily one of mere opinion, this part of the enquiry
was one of considerable difficulty and delicacy.

The evidence, it is obvious, could only be properly con-
sidered with careful reference to the charges made against
the prisoner, and upon which he was tried, which were as
follows: 1st. High treason and sedition, «¢., treason or
sedition, 2nd. Having complicity with certain parties who
were engaged in the rebellion, riot, or insurrection (6), at
Morant Bay, on the 11th October, 1865. The legal effect
of which, as already shown, was, that he was charged with
sedition, whether or not treasonable (c), or with being in com-

(a) The summary of the evidence already given (vide ante, p. 194), though
sufficient for the view in which it was then presented, merely with reference
to the strictly legal consideration, whether there was any evidence to war-
rant a conviction, was far from adequate to convey any idea of its real force
and effect, which, indeed, cannot fairly be estimated by attending only to
the express evidence, z.e., the bare facts, expressly proved, without likewise
taking into account the notorious facts of a general nature, which the
court could not discard from their minds, and might fairly and legally
consider, as giving significance to those facts, and also the inferences which
they were at liberty to draw from those facts. For the evidence before the
court comprised all these three branches, notorious facts, proved facts, and
obvious inferences. (Vide ante, p. 193.)

(b) There was a preamble, reciting that, before the time of the insurrec-
tion at Morant Bay on the 11th October, 1865, when the rebels massacred
the Custos, and divers other persons, being Justices of the Peace, &c.,
assembled in the vestry on such day, the said G. W. Gordon did, in
furtherance of the said massacre, at divers periods, previous to the same,
incite and advise with certain of the insurgents there, by his influence
tending to cause the riot, whereby many of Her Majesty’s subjects lost their
lives ; but the charges on which he was arraigned were as above stated,
though they might be interpreted by reference to the preamble.

(c) That is, be it observed, complicity with them, not complicity in the
massacre, complicity with them in inciting to rebellion, sedition, or riot,
( 399 )

plicity with the leaders in énciting to sedition, both which
would be capital under martial law.

Upon these charges, it would be sufficient to show (a)

not necessarily, in inciting to the massacre, still less in intentionally
inciting to it (vide ante, p. 181), though it would inclnde the graver charge.
To sustain a capital charge at common law, it would be necessary that it
should involve either treason or murder. But, under martial law, inciting
to sedition would be capital. (Vide ante, p. 187.)

(a) The evidence, arranged under heads, was as follows :—First, general
evidence of close association with the active leaders, the actual chiefs of the
murderers, Bogle, M‘Laren, Chisholm, Clark, &e. 1. Letter from Gordon
to Chisholm, “ Tell Clark and Bogle to enquire at the post-office for papers.
I have been at Vere, where the poor people are wretched,” &. 2. Other
similar letters, ‘‘ We must not lose heart,” &c. 3. Evidence of Gough, the
post-mistress, as to correspondence between Gordon and Chisholm, M‘Laren,
and Bogle, &c., and particular proof of a printed copy of an address to the
people, sent by Gordon to Bogle. Secondly, evidence of more particular
association between them. 1. Evidence of James Gordon that M‘Laren
had stated, showing a letter from Gordon, the prisoner, that there must be
a meeting, &c. 2. Evidence of George Thomas, that Bogle had made
similar statements, also showing letter from Gordon, the prisoner. 3. Proof
by Gough that the prisoner had written to M‘Laren (who was present at the
massacre), shortly before the outbreak. 4. Proof by Anderson (a witness
called, and cross-examined), that he had seen Gordon at Stoney Gut (the
seat and stronghold of the rebellion, and the residence of Bogle), and that
he said to Bogle that they were going to have a meeting, and that if the
blacks did not get the back lands, the whites must die. 5. Proof, by Wil-
liams, that Gordon held meetings, at which there were tickets signed by
him, and at which he said that the whites got all the money, and the blacks
did all the work, and that the blacks would get the land for nothing, and
that the men at Stoney Gut were Gordon’s friends. 6. Proof that when
Gordon was arrested, he had in his portmanteau a number of such tickets,
which it was notorious had been used for meetings convened by the ring-
leaders of the massacre, and some of which had been found in houses of the
rebels (vide ante, p. 336). 7. Proof, by Thomas that there were meetings at
Bogle’s place, up to the day before the massacre, and that M‘Laren used to
act as secretary at those meetings. Thirdly, proof of particular acts by the
prisoner. 1. The speech about Hayti, that the blacks were to do as they
had done there (vide ante, p. 274). 2. The proclamation to the people, as
to the state of the island (vide ante, p. 274). 3. Proof, by Thomas, that he
had advised the people not to pay for their lands, and that they must seek
for the white people first (ride Ev. of Thomas, ante, p. 279). 4. Proof that
Gordon said his people would be revenged on his political opponents, who

~were, in fact, murdered by his associates Bogle, M‘Laren, &c. 5. A letter
of his, in which he referred to that massacre without a word of reprobation,
( 400 )

that the prisoner was a party to a design, by the leading
rebels, to incite to rebellion (whether or not he intended, or
incited to, an actual massacre), and this did not require to
be proved by express evidence, but might be proved by
circumstances, and by way of inference from other facts,
which led naturally to the conclusion of such complicity, as,
by such intimate association between them and the pri-
soner in a seditious system of agitation, as to make it
probable that he knew what they were doing, and impro-
bable that they were proceeding without his knowledge.

As to the effect of the evidence, it would be for the Court
to consider. The substantial question, it is manifest, would
be, whether there was a fair trial, as to which the first and
great question would be, whether there was any evidence, as
to which it is to be borne in mind, that the evidence com-
prised, not merely the bare facts expressly proved, but the
notorious facts which gave them significance (a), and the
inferences which men might fairly draw from the ex-
press (0) facts, thus interpreted by notorious facts.

And, as the effect of evidence is matter of opinion (c),

(a) Vide ante, p. 398.

(b) It is the peculiar province of the jury to draw inferences of fact
(Hunter v. Gibson, 2 H. Blackst. rep. 187; R.v. Burdett, 4 B. & Ald. rep.
318); and acourt-martial are jurors ; and thus, for instance, from the noto-
rious fact that there had been a rebellion, of which Bogle and M‘Laren
were active leaders ; and the fact, ag notorious, and also expressly proved,
that they and Gordon were closely connected together in a system of agita-
tion, the court-martial might draw the inference, that it was not probable
that it could have gone on, without Gordon’s privity, or that those who were
thus associated with him would carry it on, to such a terrible outbreak
without his knowledge and approval. It was in the last degree improbable
that they would do so, and this, no doubt, was a consideration present to
the minds of the members.

(c) For instance, the force and effect to be given to the facts, that
meetings had been held at Bogle’s, up to the day before the outbreak, and
that Gordon had been in correspondence with M‘Laren, who always attended
these meetings, within a day or two of the event; and that Bogle and
M‘Laren were present at the massacre, and that they murdered Gordon’s
political opponents ; and that Gordon, in writing of it, said not a word as to
its being a criminal act ;—the effect of these facts would very much depend
upon a man’s opinion, as to the probability either of Bogle and M‘Laren
( 401 )

and especially when it rests on circumstances, the mere fact
that certuin evidence fails to bring to some men’s minds the
strength of conviction which it has brought to the minds of
others, would not be enough to warrant any imputation
upon the conviction as unfounded, or unjustifiable.

The impression which had prevailed, that the evidence
was not sufficient, had arisen, it was manifest, from an
erroneous notion as to the law (aq), viz., that it was neces-
sary to prove an offence capital by the ordinary law, to
which end it would have been necessary to prove incitement
to the particular massacre, and not merely general incite-
ment to sedition or rebellion (2), though, indeed, even if it
had been necessary, there was evidence of direct incitement
to massacre (c), which might legally have involved a liability
for any massacre, as a natural result of such incitement (d).

The evidence, however, would be sufficient, if it showed
general incitement to sedition and rebellion, whether or not
there was incitement to massacre; and in either view, it
would suffice, if language had been used calculated to incite
to rebellion or to massacre, whether or not there was incite-
ment to that particular massacre, or to a massacre on
that particular occasion (e).

going on to such a terrible step as this without Gordon’s knowledge, or of
their doing so without his approval. And this would be necessarily a
matter of mere opinion, on which, to say the least, the court would be
entitled to hold theirs.

(a) Vide ante, p. 396.

(6) Which would be capital under martial law, vide ante pp. 65, 187.

(c) There was the Hayti speech, vide ante, p. 274, and the positive evi
dence of witnesses, that similar language had been used on other occasions.

(@) And it would be sufficient, if the natural result of these incitements
was a rising with a view to a massacre, whether or not Gordon actually
intended it. (Vide ante, p. 181, et vide F. Stephens’s Crim. Proced. 187.)

(e) Vide ante, p. 398. Andas to this, the evidence was direct and positive,
in addition to the Hayti speech (vide ante, p. 274), and the seditious pro-
clamation (vide ante, p. 118), that Gordon had used language, on other
occasions, to the effect that the blacks were to rise and massacre the whites,
in order to get the back lands. There was the deposition of Thomas, to the
same effect. as his evidence (vide ante, p. 279), and there was the evidence
of one Anderson, to the same effect. And there was evidence of close

DOD
( 402 )

Another cause of the impression was, that the power of the
court to draw inferences from facts proved, and to interpret
them and apply them by the light of notorious facts (a),
was entirely ignored. Yet, it must be manifest that they
possessed both these powers, unless it is meant that they
were to require formal proof of facts known throughout the
whole island, as, for instance, the rebellion itself, or that they
were not to draw the plainest inferences from facts, without
which, the evidence would lose all its significance and force.

It would be material, both in a legal and a moral point
of view, whether the prisoner had had a fair trial (0),

association with the ringleaders in meetings, which were known to have
been seditious, and some of which were, as above, proved to have been so.
There was evidence that he had spoken of these at Stoney Gut, the seat
and stronghold of the rebellion, where the drilling, &c., had been going
on, and where the chief active leaders resided, as his friends; and there
was evidence that he had said, that his people would be revenged on his
political opponents, who were, in fact, murdered by them.

(a) Thus, it was proved that Gordon was in close and confidential inter-
course with the ringleaders, at the seat and. stronghold of the rebellion—
Stoney Gut—and, it was manifest, he had been so for some time. Hence,
the double inference might fairly be drawn, first, that he must have known
that they were getting up a rebellion there, and that they would not have
carried it on without his concurrence. It was scarcely possible that
they could have kept secret from him, all the measures that were going
on there, even if they had desired to do so; and it was not to be supposed
that they would carry on a scheme of rebellion, and carry it on to actual
insurrection, and even massacre, without the knowledge of the man they
looked up to as their leader. When these plain inferences are drawn, the
fact of their close and confidential intercourse with him assumes an entirely
different aspect, but, without them, it loses all its force and significance.

(b) That is, a distinct statement of the charge, production of the written
evidence and examination of the witnesses who are produced, in the presence
of the prisoner; hearing and attending to any observation of his, on the weight
or credit of the documentary evidence, and allowing him to cross-examine
the witnesses produced ; listening fairly to his defence, and letting him
call any witness he can produce ; and, if he applies for an adjournment, to
enable him to produce witnesses on any point of his defence, allowing him
to do so, if the court see that it is material, and that the application is
bond fide. Allthese are matters of the substance of justice, though the
latter, it is obvious, must, in all courts, rest a good deal in the judgment
of the court, for the prisoner, in any case, would be glad of an excuse for
delay. But, as to the mere departure from, or non-observance of, the strict
legal rules of evidence, as, for instance, receiving the depositions of absent
( 403 )

that is, not according to the strict legal rules of evidence or
procedure—which, of course, could not be expected to be
observed before a drumhead court-martial by military men,
who did not understand them—but those rules of substan-
tial simple justice, which are of universal obligation, and
the wilful and material violation of which invalidates any
judicial proceeding. And, therefore, the Commissioners
directed their enquiries carefully to that point.

The great question, in a legal and moral point of view,
would be, whether the prisoner had a fair trial, and, as to
this, much evidence was taken. The only grounds (a), on

witnesses, or oral evidence of the contents of written documents; these are
not necessarily of the substance of justice, and rather go to the weight,
value, or credibility of the evidence, of which, it is to be supposed, the
Court will judge, and not decide upon such evidence alone, although it
might be useful, as confirming, or confirmed, by other evidence.

(a) For instance, objections to the admissibility of the depositions of wit-
nesses, which, no doubt, would have been inadmissible in a criminal trial
at common law, but, surely, under martial law, went only to the value or
weight of the evidence. Then, there was an objection suggested as to the
custody from which the documents were produced, and their genuineness,
and the absence of formal proof of them, and so forth; as to which it is
enough to observe that the General in command had carefully examined
them, and doubtless was satisfied as to them, and, further, that the prisoner
never objected to them, nor disputed their genuineness. The same answer
applies to a very technical objection, taken before the Commissioners, as
to the proof of the seditious proclamation, that the original was not pro-
duced, although the witness had seen it, and the prisoner did not object to
the printed copy which had been published all over the island in his name,
and did not dispute the authorship. The learned Commissioners, of course,
were aware that secondary evidence is admissible, if not objected to.
These are specimens of the objections taken. No doubt, any lawyer
could easily pick holes in much of the evidence, but were two learned
judges sent some thousands of miles to pick holes in the proceedings
of a drumhead court-martial? It was attempted to make out that
the court ought to have adjourned, in order to enable the prisoner to
call some witness, upon a point quite collateral, if not immaterial, viz., to
account by illness for his absence from the meeting of the vestry (which he
usually attended), on the occasion of the massacre. But it did not appear
that he himself applied for an adjournment, and even if he had, it was
entirely for the court, in the exercise of its discretion, to allow or disallow
it, and, not only was the point collateral and unimportant, but his own
witness had disproved the excuse he set up.

DD2
( 404 )

which it was apparently attempted to impeach the fairness
of the trial, were grounds not taken by the prisoner him-
self, and such as were rather based upon strict, if not tech-
nical rules, than upon those principles of substantial justice,
which alone are applicable to trials by court-martial, espe-
cially under martial law.

The only grounds on which the fairness of the trial was
attempted to be impeached, was the omission of the Court
to adjourn, in order to allow the prisoner the opportunity
of trying to prodtce some witness to prove something to
explain matters, entirely collateral, and, indeed, compara-
tively immaterial (a), on which he had produced a witness
who did not support his statement, and upon this, it
appeared, that he did not himself ask for adjournment.

This could hardly affect the substantial question, which
was, whether he had a fair trial. The Commissioners
entered, it is true, also, into other matters, and into the
non-observance of the legal rules of evidence, as to the
reception of depositions of absent witnesses (b), or of

(a) That is, that he had been absent from the mutiny at which the
massacre took place, and at which it was admitted he would ordinarily
have been present. It was said he wanted to call one Major, to prove that
he was ill. It was not proved satisfactorily that he asked for a postpone-
ment, and it was positively proved that he did not (Ev. of Young) ; but it is
quite immaterial, for it would have been idle, even if he had done so. For
his excuse being that he was ill, a witness, whom he did call, disproved it,
and the court might, fairly enough, disbelieve the fact ; but even if they
believed it, it would only dispose of one point, a mere bye-point, out of
@ great mass of evidence against him, and they best knew whether its ex-
planation would have materially altered the case in favour of the prisoner.
It seems quite immaterial, but as to the matter of fact, though it was proved
that he was unwell, it was also proved, out of the mouth of his own
witness, that he did not appear to be ill, and was up, and dressed; and
it was proved by other witnesses, before the Commissioners, that he was
well enough to be out and about just before and just after the massacre, and
that the real reason why he was not present at the mutiny was, that he
knew there was to be a massacre, for he himself said, no doubt falsely, that
he told the Baron not to go (vide ante p. 282, Ev. of Lee), and his own agent,
Lawrence, was privy to it.

(0) No doubt, nothing can be more salutary, as a general rule, than that
witnesses should be produced to be cross-examined, and that documents
should be produced to speak for themselves ; and if they are kept back, wil-
(405 3

oral evidence of the contents of written documents, and
the like ; but this, it is to be presumed, was not upon the
view that these rules are obligatory upon drumhead courts-
martial, under martial law, but with a view to ascertain how
far their non-observance was wilful and intentional, or had
operated, in the particular case, substantial injustice.

The Commissioners entered into various other matters (a)
concerning this trial, which would have been irregularities
in acriminal trial at common law, but which, even then,
might have been waived, and would not have been neces-
sarily material after verdict, and, it is to be presumed that,
here again, they entered into these matters, not with any

fully, there may be great reason to suspect real injustice ; but if it is
merely that they are absent, and that the court, under the circumstances,
is satisfied that their presence would not be important, especially if there
is other evidence which zs legally admissible, then, it cannot be said, that
there has necessarily been any violation of substantial justice. In thisinstance,
it turned out that there had beennone, for the witnesses, whose depositions
were most important, were examined before the Commissioners, and cross-
examined, and entirely adhered to their statements, and were not shaken
in the least (vide ev. of} Humber, Peart, and Geo. Thomas). At all
events, it seems clear that these rules are not obligatory on courts-martial,
under martial law.

(a) Defect of proof, for instance, as to the custody of the documents pro-
duced, or as to the regularity of the depositions, &. No doubt,a lawyer
might pick holes in much of the evidence ; as, for example, there was no
formal proof that the portmanteau produced, containing tickets for meet-
ings, such as had been used to convene the seditious meetings, and found in
the houses of rebels and murderers (vide Hobbs’ evidence, ante p. 336), was
the prisoner's, nor of the exact identity of the tickets with those thus
found ; but then, in the first place, the General had received these things,
and, it is presumed, had satisfied himself that they were what they pur-
ported to be (and, on a common law trial, it is for the judge to satisfy
himself that secondary evidence is admissible) ; and next, these irregularities
would be of no manner of importance, unless the prisoner denied the
genuineness or identity of the things ; and it does not appear that he denied
the trunk to be his, nor the tickets, and tbey, on the face of them, purported
to be for meetings just of the same character as the seditious meetings ;
and though he must have seen the meaning and the Hones of their production
in proof against them, he said not a word either against their reality or
against the rational inference to be drawn therefrom.
( 405. ).

view of their legal importance, but as throwing light upon
the fairness of the trial.

It was elicited that several of the witnesses, in Gordon’s
case, had not been personally produced and examined in
the presence of the prisoner, so that they might be cross-
examined by him, but their depositions, taken at a distance,
before magistrates, were put in and read (a). But it did
not appear that this was done from design, to keep the
witnesses back, to prevent them from being examined in
the presence of the prisoner, or that he objected to the
admissibility of the depositions.

And although, no doubt, it is deemed, in our law, very
desirable and very important that witnesses should be ex-
amined personally in the presence of the prisoner, in order
that he may cross-examine them ; this is rather a matter of
positive law (6) than of natural justice (for the ideas and
usages of other nations differ from ours upon that point) ;
and, moreover, it is one of those matters which may well
be waived by a prisoner, who best knows the importance,
in the particular instance, of the personal production of

(a) Thus, the depositions of the two witnesses (Peart and Hunter), who
proved the speech about Hayti (vide ante, p. 115), and the deposition of the
witness Thomas (vide ante, p. 279), and one or two more. But, as to
Thomas, he was ill in the hospital, and, by the law of England, his deposi-
tion would have been admissible if taken in Gordon’s presence, and it is a
mere matter of positive law which excludes depositions in any case; and
the presence of witnesses, though highly desirable, is not of the essence of
justice; at all events, if theyare not kept back to prevent their being
cross-examined, but their depositions are admitted simply to save time, the
witnesses themselves being at a distance, And as the prisoner did not
object to the admission of the depositions, they were not illegally received.

(6) It is well known that, in some foreign countries, depositions are taken,
in the absence of the accused, and the witnesses are not cross-examined by
him, (vide Mr. Fitzjames Stephen’s interesting work on Criminal Procedure,
p. 164), and although ours is certainly the best, it is hardly one of the dictates
of natural justice, that a witness should be produced, especially if the prisoner
does not require it. And Gordon did not object to the admission of these de-
positions, though hecommented on theirvalue. Anditmay fairly be said that
if theyhad been the whole evidence in the case, probably the court-martial
would not have convicted. But they were confirmed by evidence which
was strictly admissible (vide ante, p. 399).
( 407 )

witnesses, and perhaps is aware that they would give far
stronger evidence against him, if called (a).

As, therefore, the non-production of a witness to be per-
sonally examined, is not necessarily a disadvantage to a
prisoner, and may, on the contrary, be an advantage to
him (}), which he best knows, it would be too much to say
that their non-production, especially if he did not insist on
their production, was any substantial violation of justice.

The Commissioners took great care to enquire whether
any substantial injustice or injury had been done to the
prisoner by the receiving these depositions; and with this
view they had before them the witnesses whose depositions
had been received, and examined them, and allowed them
to be cross-examined, and, beyond all doubt, they adhered
to their depositions (c), and were not shaken in the least.

It is to be observed, with reference to adjournment of a
trial by court-martial, that at common law there can be no
adjournment of a criminal trial, however much it may
appear that there is a witness absent, who may be able to
exculpate the accused (d). And under martial law, the very

(a) Which really was the case (See the ev. of Thomas, ante p. 279).

() It is obvious that, if a witness is stating the truth, cross-examination
will only make it more apparent. And, again, a hastily taken deposition
may contain only half of what he can state, which is seen constantly exem-
plified in depositions taken before magistrates, and sent to the assizes.
On the other hand, if the witness be stating truth, cross-examination can
do no good, while it may do much harm to the prisoner. And whether
they have stated truth, the prisoner knows, and the court can judge a good
deal from the rest of the evidence. It would be absurd, therefore, to ima-
gine that the non-production of these witnesses was necessarily any pre-
judice to the prisoner. On the contrary, it was possibly an advantage.

(c) Vide ante, p. 279, the evidence of Thomas, one of the men whose
deposition was received. So the two witnesses (Peart and Hunter), whose
depositions had been received as to the speech about Hayti (vide ante,
p. 115), were produced before the Commissioners, and examined, and
cross-examined, and they were not shaken in the least. On the other hand,
new witnesses added further evidence, who rendered the prisoner’s guilt

clear. (Vide ante, p. 282.)

(d) He will be told that he ought to have applied to the court to put off
his trial, or that he ought to have secured the attendance of his witnesses,
( 408 )

essence of which is the necessity, by reason of an emer-
gency, for more prompt and speedy deterrent measures, it
would be strange, indeed, if there were any obligation on a
court-martial to adjourn a trial, merely because the pri-
soner asked it.

That the prisoner suffered no prejudice, but rather an
advantage from the trial not having been postponed or
adjourned, was made apparent in this way, that, whereas
by the evidence at the trial it was proved that the prisoner
had incited to insurrection, if not to massacre, it was clearly
and conclusively shown, by the evidence taken before the
Commission, that he had been privy to the conspiracy, not
only for insurrection, but for the massacre (a )

It is to be observed here, that the great object of martial
law being to admit of more prompt and speedy deterrent
measures than can be attained at common law, it would
make it of no avail, if those strict rules of evidence were to
be observed, the effect of which must necessarily be to
interpose great delay, while the legal evidence is being

In this case, Gordon had been several days in custody, and knew that his
trial was coming on, and he made no application, either to put off his trial
on the ground of absence of witnesses, or to secure their attendance. Even,
therefore, if he had, in the course of the trial, made such an application, he
was clearly too late. No prisoner on his trial, even for a capital offence,
would or could be allowed such an indulgence by the common or statute
law of England. But it was proved that he made no such application, and
that, if he had, it would not have had any real ground.

(a) Thus, at the trial it was proved that he had said his people would be
revenged on hig opponents, who were, in fact, murdered on the occasion ;
and it was proved before the Commission that he spoke of their fate with
evident exultation. (Evidence of Walcott.) It was proved at the trial
that he had denounced them in the most violent terms; it was proved
before the Commission that he had a pecuniary interest in the death of the
Custos, of which he afterwards spoke, there being a suit between them,
which abated. (Evidence of Walcott.) It was proved at the trial that it
was probable, from his intimate connection with the ringleaders, and his
saying that those who lived at the seat and stronghold of the rebellion were
his friends, that he was aware of what was going on, and it was positively
proved at the trial that he was aware of it, for it was proved that he said
(no doubt falsely) that he had warned the Custos not to go to the
meeting. (Evidence of Lee, vide ante, p. 282.)
( 409 )

obtained (a). Thus, to procure the attendance of witnesses
at a distance, would cause a delay of several days; and the
very necessity for martial law, a present emergency, would
render such delay inadmissible. It would have necessitated
a postponement of the trial.

The great question, both moral and legal, was, whether
the prisoner had had a fair trial, and this, it was clear, he
had (6). That is, he heard the evidence given against him ;
anything he had to say upon it, either in the way of cross-
examination or observation, was listened to; he was heard
patiently in his own defence, and any witness he had he
was allowed to examine in his defence.

(a) It was an important part of the case that, as stated by the Governor
at the outset (vide ante, p. 128), and proved in various ways, there were not
many facilities for travelling in the island, and internal communication was
rather difficult. To have obtained the attendance of the witnesses, would
certainly have caused a delay of several days.

(6) The very witness who was brought forward to prove that he had not
had a fair trial, a coloured man named Lake, had written at the time that
he had, and was cross-examined by Mr. Gurney:—In one of your des-
patches, published in the Colonial Standard, you say, referring to Gordon’s
trial, ‘‘ He was given a very impartial trial, and was allowed to cross-examine
all the witnesses, through the president of the court; and, above all, was
permitted to enter into a lengthy defence.” How did you reconcile that
with your opinion, just given, that Gordon was not given a fair trial? The
witness.—My opinion at that time was that he had had a fair trial. I have
since formed a different one. Mr. Gurney.—What has induced you to
alter your opinion? The witness.— Because I think patience had not been
exercised towards him in recalling Dr. Major, whom, he stated, could tell
of his being ill, and by whom he expressed his intention of not going ta
the vestry, from his illness. In reply, the president said, “Dr. Major is
not in court, nor is he on the Bay.” Mr. Gurney.— Did Mr. Gordon ask
for a postponement, or that Dr. Major should be sent for? The witness,—
He did not. Mr. Gurney.—You said in your examination, that justice in
the court-martial, under Lieutenant Brand, was not fairly meted out, or
words to that effect, and complained of their haste. I find, in a despatch
in the Colonial Standard, you say, “ Lieutenant and Commander Brand is
2 credit to the service to which he belongs, and to the Crown he serves ;
patient, calm, deliberate, with a mild voice and manner; as president of
the court-martial he gives every prisoner, however proven to be guilty, his
own way of questioning witnesses through him, and the right of entering
into his defence.” The witness could only repeat that he thought so then,
but did not think so now.
( 410 )

What was meant by a “fair trial,” was clearly under-
stood, and indicated by the points to which the Commis-
sioners directed their examination ;—a patient hearing, full
opportunity for cross-examination, comment, or observa-
tion, and an adjournment, if applied for, and if it appeared
necessary for justice (a), as to which, however, there was no
satisfactory evidence, even that it was applied for, and
positive evidence that it was not(b); and, moreover, it
plainly appeared that, if it was, it was on a point not
material (c).

All other points would be immaterial,—morally and
legally ; except that which would, in a legal point of view,
be fundamental; and which underlies every part of the
proceedings —viz., legality. This, it is manifest, would not
be affected one way or the other by any number of mere
irregularities or departures from mere formal rules of pro-
cedure, nor even necessarily by some degree of error,

(a) See the cross-examination of the man Lake, by Mr. Commissioner
Maule. This man stated, at the time, that Gordon had a fair trial, and
now said, “I do not consider Mr. Gordon had a fair trial ; he was interrupted
in the latter part of his defence by the president, who said, ‘that closes
your defence.” In my opinion, I think that the words were not put as a
question, but rather for the purpose of stopping Mr. Gordon.” But he
admitted that Gordon was allowed to resume and continue, and that he
was allowed to cross-examine all the witnesses. And it was elicited by his
Excellency the President. The proceedings of the court commenced at two
or three o’clock in the afternoon, and the court rose by candle light, at seven
or eight o’clock. The trial lasted for fully four hours and a half. Upon
which he was asked by Mr. Commissioner Gurney,—Do not you think he
was given a very patient trial ?

(4) There would, of course, be no obligation to adjourn, on the application
of a prisoner, unless it was really necessary for justice.

(c) As to this, there was the positive evidence of several witnesses. For
instance, of Mr. Young, who was at the trial of Mr. Gordon, and took notes
of that trial. He was there during the whole of the trial, and did not hear
any application from Mr. Gordon for a postponement, “J feel quite sure
he did not make application; I was very near him, about a few feet from him;
my notes of that trial have been unquestioned.” This was confirmed by
other witnesses, quite as disinterested, and there was no reliable evidence
that an application had been made and refused. Nor was it go stated at the
time.
( 411 )

rashness, or want of care in the proceedings (a). If the
trial was illegal, for want of jurisdiction, the utmost strict-
ness in form could not help. If legal, no mere error in
procedure could vitiate the proceedings; and if the trial
was substantially fair, could not affect its propriety.

The question of legality, indeed, lay at the base, not only
of the trials by courts-martial, but of all the measures
taken ; with the exception of the one or two instances of
actual encounter. With these insignificant exceptions, all
the measures taken were wholly illegal by the common law,
which knows nothing, under any circumstances, of summary
executions, or trials of non-military persons by courts-
martial, or floggings, or burnings of houses. And these
measures could only be legal by virtue of martial law, as
expounded in these pages. So that, unless by virtue of
martial law, all of them were illegal. But, under martial
law, they would—so far as they were under orders—all be
legal. And therefore, it is conceived, the trials by court-
martial, which ,were all necessarily under military order
and authority, would be legal.

The question of legality would be capable of being tested
in the cases of sentences to punishments which had con-
tinuance, such as imprisonment, or penal servitude, because
in such cases it might be raised without criminal prosecu-
tion, and the sentences might be remitted, if illegal (6). If

(a) A total want of justice, and wtter want of evidence, or refusal of a
fair hearing, might make the proceedings invalid ; but not any degree of
unfairness or injustice (however culpable any degree of it might be), or
otherwise, every trial would be void which had not been perfectly fair; a
conclusion obviously too extreme. Here again, the scope of the enquiry
was shown to be that degree of impropriety which might be ‘more or less
censurable, though not criminal enough to render the proceedings illegal.

(b) Vide ante p. 388. ;

(c) The mere remission of the sentences, on considerations of clemency—
or even of propriety—would not, of course, test their legality; nor their
remission, on the supposed and obviously erroneous ground that the
sentences must cease, when martial law ceased. Assuming that courts-
martial were legal at all, these sentences could not lose their force merely
because the courts were dissolved. The courts of assize in England are
( 412 )

the trials by court-martial were legal, of course these sen-
tences would be as legal sentences as flogging or capital
execution ; but if, on the other hand, they were illegal, then
all the sentences were equally so, including those which
were capital. The mere circumstance that the courts had
ceased to exist, could not, of course, affect the legality or
validity of these sentences.

So far as regarded the enquiry into the measures taken in
the suppression, and the conduct of thoseengaged in the
measures of suppression, it is conceived, for reasons already
stated, that the proper scope of the enquiry would be the
moral, rather than the legal aspect of their conduct; at all
events, assuming the prior and fundamental question of the
legality of the declaration of martial law; for that, it is con-
ceived, would (a) legalize all measures really directed under
military orders and authority, to the carrying out of martial
law, and the suppression of the rebellion.

The enquiries of the Secretary of State (b), had, it will
have been seen, compared the question of the extent to
which the measures had been caused, as indicated by the
numbers who had suffered. The mere numbers, however,

temporary courts, and no one ever suggested that these sentences ceased s
and when it was set up that committals for contempt did so, the point was
overuled in all the courts. (2. v. Charlesworth, 1B. & 8.) It was stated
that a large number of the prisoners sentenced by the courts-martial to
terms of imprisonment or penal servitude, were released by the Colonial
Government on that ground. That, however, would be such an obvious
error, that it is presumed they must have been released upon larger and
more political considerations.

(a) Vide ante, p. 230. If the acts done were really and honestly,
however erroneously, directed to the carrying out of martial law, that is,
honestly, however erroneously, in execution of orders, general or special,
giving authority, under martial law; then, it is conceived, their legality
could not be questioned even in a court of law, still less before an extra-
ordinary and extra judicial commission of enquiry. If, on the other hand,
the acts were not really carrying out martial law, that is, in the execution
of orders, nor in the suppression of the disturbances, but wantonly and
without lawful orders or authority, and from mere private malice, or lust of
blood, or a spirit of cruelty, then they were criminal, and it is conceived to
be unconstitutional to enquire into them.

(b) Vide ante p. 244.
( 413 )

by themselves, would not, it is manifest, be material (a) ;
and to be made so at all, they must have relation to some
other data, by which to suggest some proportion or com-
parison. And with reference to the question of excessive
severity in punishment, any comparison of mere numbers
would necessarily be a rough test; but the obvious data
for this purpose would be the numbers of those liable to
capital punishment, either at common law or under mar-
tial law.

Now, at common law, all those who had been present,
aiding and abetting, on an occasion when the crime of mur-
der was committed, would be liable to lose their lives (0).
And, by martial law, all those who had been active in the
rebellion, or the acts of outrage which were committed in
it (c), were liable to summary execution.

Evidence was of course taken with great care, as to the
number of persons who suffered (d), especially those upon
whom death was inflicted, either in the field, or on summary
enquiry, or by sentence of court-martial (e).

(a) For ifa single man were killed carelessly and unnecessarily, it would
have been excessive, though the fact that some had been, as it turned out,
unnecessarily executed, would not, of itself, involve any blame to any one,
unless he had been carelessly as well as unnecessarily executed ; (vide ante
p- 304); and, on the other hand, no number would be excessive which it was

really and reasonably deemed necessary to execute—supposing a fair degree
of care shown in the measures taken (vide ante p. 254).

(b) And the number present on, such occasions would scarcely have been
less than a thousand.

(c) The latter number could hardly have been less than four or five
thousand, and the total number of those executed came to between four
and five hundred.

(d) Vide ante pp. 372, 375.

(e) And it was satisfactory to find that the total number of these was
very much under one-tenth of the probable number of those who had been
active inthe rebellion, and whose lives, therefore, were legally forfeited.
The total number was estimated, after the most minute and careful en-
quiry, to amount to 438, that is, very much less, in round numbers, than
450. Considering the number of places, in a range of forty miles, from
Morant Bay to Port Antonio, at which hundreds of negroes were engaged in
acts of armed insurrection and outrage (vide ante p. 286), it does not seem
( 414 )

Evidence was also taken carefully as to the number of
persons who suffered the minor punishment of flogging,
and the nature and severity of the punishments actually
inflicted in this way (a). So, also, evidence was taken as
to the number of houses (0) or huts of the peasant popula-
tion destroyed, under the belief of the owner’s complicity
in the rebellion. And, indirectly, evidence was taken as to
the numbers implicated in the rebellion.

The probable numbers of those who were actively or
passively engaged in, or aiding the rebellion, or disposed to
do so, would be material; in reference to the measures
taken ; for the complaints against the officers, for the most
part, appeared to resolve themselves really into this:
that they used the deterrent (c) measures allowed by
military law; and their defence, in substance, was, that
they had done so, because it was necessary to do so,
in order to deter a large and overwhelming proportion of
the population from rising to renew the insurrection ;
and that, therefore, it was necessary to keep up these

possible that there could have been Jess than between 4,000 and 5,000
actively engaged in the rebellion; and if so, then the total number executed
was not above one-tenth of those whose lives were forfeited to the law.
This happens to be the proportion in which the soldiers of a mutinous
regiment suffer the penalties of mutiny. The regiment is “decimated.”

(a2) Some hundreds were thus punished, and as it did not appear that any
were flogged who were not found with plunder, or other proof of guilt, the
number, whatever it might be, was only a tolerable indication of the number
of negroes actually implicated. It is satisfactory to be able to add that
very few women were flogged, and that these instances appeared to have
been for the most without authority, and certainly contrary to the wishes of
the superior military Commander. So some instances of aggravation of
the punishment by binding up wire with the whips, &c., were unauthorized,
As regards the number of lashes inflicted, there did not appear to have
been any particular excess, 100 was the greatest number.

(0) They appeared, by official returns, to have been about 1,000, spread
over a large part of the island, forty miles in extent. It is a curious
fact that the number was about the same ag that of the houses sacked,
gutted, or destroyed by the rebels (wide ante p. 286). That the military
orders not only did not warrant any excess, but prohibited it (vide ante
p. 371.)

(c) According to the language of the Petition of Right (vide ante, p. 11),
“the summary justice of martial law.”
( 415 )

measures until the military force was strengthened through-
out the island.

These considerations, it is manifest, would point strongly
to the necessity for deterrent measures some time after the
cessation of actual insurrection, with a view to prevent its
renewal. And, as already pointed out, this necessity, or
presumed necessity for such deterrent measures, would lie
at the basis of the whole question as to the nature of the
measures to be taken, or as to their continuance. And it
would not be any reason for the cessation of deterrent
measures, that, under the terror they inspired, actual insur-
rection had ceased, so long as there was reason to suppose
that, on the removal of that terror, there would be a
renewal of the insurrection (a).

And thus it was, that the same considerations bore out
the continuance of martial law, and would point to its
continuance, until the military had been reinforced through-
out the island (a). Martial law having been proclaimed, was
continued for a month; that is, for two weeks, after the
ringleaders were secured and executed, and until the small
military force in the island was reinforced, and the rein-

(a) Vide ante pp. 18, 30, 42, 209, 210.

(6) The duration of martial law, of course, must be determined by the
same consideration as its declaration, viz., its real object ; and if its object
is the restoration of that peace and confidence which will allow the ordinary
law to take its course (vide ante p. 210), it should be retained until such
confidence is restored. There was 2 good deal of evidence to show that it
was not restored until the military reinforcements had arrived and been
distributed. (Vide evidence of Mr. Eyre and Mr. Westmorland.) Prior
to the arrival of additional troops, there were in Jamaica only 1,000 men,
all told, including sick men and men required for garrison duty. The
police force of the whole island was 389, and in St. Thomas-in-the-East the
force was 20, of whom most had run away. In truth, for the suppression
of the rebellion in the disturbed district, there was not above 500 troops.
(Evidence of Mr. Eyre.) The reinforcements did not arrive until the end
of October. There was then a week’s delay caused by a difference of opinion
as to their distribution (vide ante p. 212), and then a week’s further delay in
their distribution. And then martial law expired. The amnesty had
nothing to do with it; that was a measure of conciliation ; the great point

was as to the measures of protection.
( 416 )

forcements had been distributed, so as to afford, by their
presence, a substitute for the deterrent measures of martial
law.

For reasons already entered into, itis conceived that any
error of judgment, assuming there to have been any in
continuing martial law, could not affect the legal validity
of acts done under military orders and authority, in carry-
ing it out. It will, however, have been abundantly obvious,
from this review of the enquiries of the Royal Com-
missioners, that in this, as in every other case of martial
law, there was scope for a bill of indemnity, and that, prac-
tically, though not theoretically or legally necessary in law,
it was required (a), on account, either of doubt (0), error, or
irregularities, which form the proper scope of a bill of
indemnity.

It would be, practically, to abolish the power of declaring
martial law, if the validity of acts, done under martial law,
were to depend upon the soundness of the judgment exer-
cised in declaring or continuing martial law ; for no officers
would be likely to accept such a large and uncertain respon-
sibility. According to the views submitted in these pages,
all acts done during martial law, and in the district under
martial law, and under military orders and authority, would
be legal, and, therefore, would not require a bill of indemnity.
And all acts done in or out of the district, and whether or
not strictly under martial law, would be, if honestly for
the suppression of the rebellion, proper subjects for a bill
of indemnity (c).

(2) It was in this sense, doubtless, the law advisers of the Crown, in the
Ceylon case, are stated to have said that a bill of indemnity was required
(vide ante, p. 131, in notis). That is, that practically, it would always be
required on account of errors or irregularities certain to arise.

(6) Doubts as to jurisdiction, as in the case of Gordon (vide ante, p. 186),
as to which, the author considers the proceedings lawful, but others might
be of a different opinion. Errors as to acts without orders, Excesses, a8
to arrests of persons out of the district under martial law, and not liable
for acts committed within it (vide ante, p. 299).

(c) As an illustration :—If the Provost Martial has, by military law,
( 417 )

And, on the other hand, if the act were not really done
either under martial law nor in the suppression of the
rebellion (that is, with a view to it), although during mar-
tial law, and under colour of it, but wantonly and wickedly,
then, not only would it require a bill of indemnity, but it
would not be covered by a bill of indemnity (a), drawn in
any form in which such a bill ever has been or is likely to
be drawn.

Hence it was, that the scope of the bill of indenmity
was, not merely acts done strictly under martial law, but
all acts done in furtherance of its object, or honestly in the
suppression of the rebellion, whether or not strictly under
martial law. And so, also, the scope of the enquiry by the
Royal Commission was not merely the measures taken
under martial law, but measures taken in the suppression
of the rebellion; some of which might or might not be
under martial law (6).

authority to order the summary execution of a man, for an offence com-
mitted not only in his presence, but against himself, while acting in the
execution of his duty, or by threatening his life, which would be capital by
martial law, then the act of the Provost Marshal in executing Marshall,
would be legal, and would not require a bill of indemnity (vide ante, p. 375).
But if, although the offence was capital, he had no authority to order the
execution, then the case would require a bill of indemnity. If he neither
had authority, nor was the offence capital, and he did not really act with a
view to his duty or his protection, but wantonly, then the act would be
murder, and would not be covered by a bill of indemnity.

(a) For the object of a bill of indemnity is, not wilful and wholesale
illegality, but casual, unintentional illegality, or, in other words, not con-
duct really criminal and wicked, but acts honest and well-meant, and which
happen to be illegal, for some reason rather technical, or, at all events,
founded on some strict letter of the law, as apart from its spirit; as, where
the letter of the law has been violated in some particular case, for the sake
of avoiding great public inconvenience, which would arise from doing the
act in a strictly legal way, as, in making a few arrests out of a declared
district, rather than proclaim the whole country, which would make the
act legal.

(0) And if not so, as, if not done under military orders and authority, and
if not justifiable at common law, they would require a bill of indemnity to
protect the actors from legal liability, however honest and well-intended
might have been their acts.

EE
( 418 )

The constitutional scope of the Commission, therefore,
so far as regarded the second head of enquiry, as to the
measures taken in the suppression, was, it is conceived,
substantially the same as the extent of the protection
afforded by the common law or act of indemnity (a), to
those who had been engaged in carrying out martial law,
viz., their acts and measures really in execution of martial
law, done for that object, however erroneously, or wrongly,
or excessively.

All through the enquiries (6), the Commissioners were
careful to keep constantly in mind, and to impress upon all
who came before them, that though they could not exclude
inculpatory evidence, the scope of their enquiries was not
so much to consider charges against any one, as to inform
the conscience of the Crown, especially as to the bill of
indemnity, which necessarily raised considerations of a
moral, as well as of a legal character.

Before stating the report of the Royal Commissioners, so

(a) And, asis conceived, rightly so, for reasons already explained. For
it would not be constitutional to have an extraordinary Commission of
enquiry into matters recognizable in criminal courts of law. And it would
be contrary to all constitutional principle to hold a Governor liable, ina
court of law, for mere errors of judgment in the exercise of ahigh govern-
mental authority, and for which he is responsible to the Crown, and contrary
to legal principle to hold men legally liable for mere errors or unintentional
excesses, in the exercise of an absolute discretionary military authority in
time of war, for which they are responsible only to the Crown. For acts,
if any, not really done in the exercise of this military or governmental
authority, but wholly beyond it, and either illegally for want of such
authority, or maliciously and wickedly under colour of it, the courts of
law would be the proper tribunals of enquiry.

(6) Thus, referring to an observation of Mr. Eyre’s, that he was “ on his
defence”: Mr. Maule said, “ You put the case a little too strongly. You
are not charged before us. The Royal Commission is only required to
investigate all matters connected with the origin, causes, and mode of
suppression of the late disturbances. There is no one charged before us.”
Mr. Eyre replied: “It is certainly the general opinion, both in England
and in this colony, that Iam on my trial; and I feel that I am virtually

on my trial, being responsible as the head of the Government and con-
troller of affairs.”
( 419).

far as it bore on the subject of martial law, it may be well
to recur to its terms and its recitals.
The Commission recited :—

“That it is alleged (a) that great disaffection prevailed in the island,
“and that evil-disposed persons had concerted the destruction of other
“subjects therein. That grievous disturbances had broken out in the
“island and had been suppressed, and that the said disturbances and sup-
“pression had been attended with great loss of life, and, it is alleged, that
“excessive and unlawful severity had been used in such suppression. And
“that it greatly concerns us that full and impartial enquiry should be
“ made into the origin, nature, and circumstances of the said disturbances,
“and with respect to the measures adopted for the suppression of the same,
‘“‘and the conduct of those engaged in such suppression.”

The Commissioners (6), after sitting in Jamaica for many
weeks, and taking the evidence of hundreds of witnesses,
agreed to a Report, which, while entering into many par-
ticular cases, and details, not necessary to enter into here,
contained much general matter, very valuable for future
guidance, especially as it was adopted by the Crown; and
which it is the object of the remainder of this work to
embody and preserve.

In this Report there was nothing at variance with the

(a) That is, ‘severity unlawful,” by reason of its being ‘‘ excessive,” not
measures altogether illegal, for then the words ‘‘ severity ” and ‘“ excessive”
would be surplusage. Measures which are illegal, are so, whether or not
they are severe or excessive. But, on the other hand, measures which are
lawful may be excessively severe, and they may be so through mere error,
and if so, then they would not render the measures wholly unlawful, but
the “severity ” only would be “ unlawful,” ¢.e., not lawful, and, therefore,
the would not be criminal, though it might be culpable and censurable
(vide, p. 363).

(b) Who, it is to be remembered, were, one military man, Sir H. Storks,
and two lawyers, Mr. Russell Gurney, the Recorder of London; and Mr.
J.B. Maule, the Recorder of Leeds; both of them sound lawyers and
criminal judges, imbued to the utmost with those strict notions of criminal
justice, to which the courts of law themselves have often alluded, as more
favourable to the accused than to justice (2. v. Suddis, 1 East’s rep. 316);
and likely, therefore, to say the least, to be unfavourable judges of the sum-
mary severities of martial law. This observation is made, not as detracting
from, but rather as enhancing the value and importance of, the general
result of their report, so far as it affirmed the legality of martial law, and
of the measures taken in carrying it out.

EE 2
( 420 )

general views of the law upon the subject, which have been
laid down in this work (a) ; while, on the other hand, not
only was there much which went to confirm them, but the
whole tenor of it, even the very censures which it contained
upon particular measures, or particular instances, plainly
affirmed the fundamental propositions which have been
here laid down and expounded, the lawfulness of the
declaration of martial law in time of rebellion, and the
measures taken, under military order and authority, in
carrying out martial law.

The Commissioners (0) distinctly adopted the view which

(a) There is not a word in it to imply that the proclamation of martial
law was illegal ; on the contrary, the statements that there was a rebellion,
the praise bestowed upon the measures taken for its suppression, and
the censures upon the continuance of martial law, all plainly imply that the
declaration of martial Jaw was perfectly legal. And the censures expressed
on the extent to which the measures were carried, all of which would have
been illegal, had not martial law the force and effect which has been here
expounded, implied that it had that force and effect.

(b) On the disputed question as to whether the volunteers defending the
Court-house at Morant Bay fired upon the people before or after they them-
selves were directly attacked, there was some conflict of testimony. After
considering the matter, the Commissioners say, “ that the fact appears clearly
established, by the testimony of a large number of witnesses, that the crowd
of blacks were aggressors by throwing stones, and that then the Captain
having received authority from the Custos, gave the word to fire. It was
proved that, before the 11th of October the negroes met and drilled, admin-
istered the secret oath, and in many ways showed, by their conduct and
declarations, that the disturbances were not an accidental riot, but a
planned resistance to the constituted authorities.” The Commissioners
said, “ With this evidence before us, it was impossible to avoid arriving at
the conclusion that there was, on the part of the leaders of the rioters, a
preconcerted plan, and that murder was distinctly contemplated.” The
Commissioners quoted, and made special reference to Paul Bogle’s (and
nineteen others) letter, addressed to the Governor on the afternoon pre-
ceding the outbreak. (Vide ante p.117.) They say of it, “It seemed to
be relied upon as showing the peaceable intentions of the writers. We
confess we cannot look upon it in that light. Its language is that of
scarcely concealed defiance ; and, looking at its terms, at the time at which
it was written, and the acts by which it was accompanied and followed, it
seems to us to partake rather of the character of a manifesto preparatory to,
and attempting to justify, a resort to violence.” The Commissionersfurt her
stated “ that the originators of the outbreak do not appear generally to have
( 421 )

has been presented in these pages, that the disturbances
were rebellious in their nature, and had their origin in
deep-seated causes, calculated to make them general and
formidable, and especially in the desire for the expulsion
of the whites, and the acquisition of their lands by the
blacks ; and they distinctly declared (a) that the Governor
was justified in declaring martial law.

Moreover, the Commissioners set out in their Report a
number of matters (0), which showed, beyond a doubt, the
deep-laid design (¢) in which the rebellion had its origin, and
what imminent danger there was that, if not promptly put
down, it would have become formidable, and probably fatal.

The general conclusions (d) arrived at by the Commis-

belonged to the labouring class, but were, for the most part, what are called
free settlers, and their great desire was to obtain, free from the payment of
rent, what are called the ‘back lands.’ ”

(a) Concerning the measures adopted for suppressing the insurrection,
the Commissioners say, “ With the full knowledge of all that has occurred,
we are, nevertheless, also of opinion that, upon the information before them,
and with the knowledge they possessed of the state and circumstances of
the island, the Council of War had good reason for the advice which they
gave, and that the Governor was well justified in acting upon that advice.”

(b) P. 29. Communications had been going on between Gordon and
Bogle for some years, with evident reference to some rebellion; and many
expressions dropped by Gordon proved that this was all along in his mind.

(ce) P. 33. Gordon said that all the powers of the great Napoleon could
not put down the rising in Hayti, and that it was successful, because the
troops died of discase, before they could meet the people in the mountains.
And he added that India was not a case in point, for India was a flat
country, and the English troops could overrun and conquer it; but
Jamaica was a mountainous country, and before the British troops could
reach the people in the mountains, they would die of discase. This entirely
confirmed and illustrated the judgment of the Governor. (Vide ante,
p. 164.)

(2) “That the disturbances in St. Thomas-in-the-East had their imme-
diate origin in a planned resistance to lawful authority. That the causes
leading to the determination to offer that resistance were manifold :—that
a principal object of the disturbers of order was the obtaining of land free
from the payment of rent; and that some, moreover, were animated by
feelings of hostility towards political and personal opponents, while not a
few contemplated the attainment of their ends by the death or expulsion of
the white inhabitants of the island. That, though the original design for
( 422 )

sioners were substantially the same as those presented in
these pages, viz. that the disturbances were rebellious and
dangerous, and formed a proper ground for the declaration
of martial law; and, although they also arrived at the con-
clusion that it had been continued longer (not saying how
much longer) than necessary, and had been carried out with
too much severity—this, for reasons already adverted to (a),
rather appeared to imply their legality.

And not only did they declare that the Governor had
been entirely justified in proclaiming martial law, but (0)
they bestowed praise upon him, for the energy and ability
with which he had carried it out, during a great part of the
period for which it was proclaimed ; nor did they indicat
any doubt that it was lawfully in force during the whole
period, but only (ce) as to whether it was properly carried
out during the latter part.

The whole tenor of their general comments upon the
measures taken in the suppression of the rebellion, that is,
mainly the measures taken under martial law, and the
very observations they made upon their necessarily terrible
character, and the importance of the question of its con-

the overthrow of constituted authority was confined to a small portion of
the parish of St. Thomas-in-the-Hast, yet that the disorder in fact spread
with singular rapidity over an extensive tract of country, and that such was
the state of excitement prevailing in other parts of the island that, had
more than a momentary success been obtained by the insurgents, their
ultimate overthrow would have been attended with a still more fearful loss
of life and property.”

(a) Vide ante, p, 304.

(b) “ That praise is due to Governor Eyre for the skill, promptitude, and
vigour which he manifested during the early stages of the insurrection ; to
the exercise of which qualities its speedy termination is in a great degree
to be attributed. That the military and naval operations appear to us to
have been prompt and judicious.”

(c) “ That by the continuance of martial law in its full force, to the
extreme limit of its statutory operation, the people were deprived, for a
longer than the necessary period, of the great constitutional privileges by
which the security of life and property is provided for.” They added their
opinion that the punishments inflicted were excessive. But, as already
observed, the reprobation of excess implied legality.
( 423 )

tinuance, implied a recognition of their legality, and a con-
sciousness that martial law had the effect which has been
here explained (a).

And, in considering the question of the duration of mar-
tial law, whether it had been retained too long, or carried
out too severely, they justly observed (+), how much easier

(a) “ We have now narrated the means used for the suppression of the
insurrection, and have commented on the conduct of some of those engaged
in the suppression. The number of persons concerned in the original out-
break, and in the deeds of violence by which it was accompanied and
followed, was undoubtedly large; the number also of those who availed
themselves of a time of disorder to plunder their neighbours was far larger ;
but the punishments inflicted seem to us to have been far greater than the
necessity required. Nor can we shut our eyes to the fact that, among the
sufferers during the existence of martial law, there were many who were
neither directly or indirectly parties to the disturbances which it was the
object of those placed in authority to suppress. We fear that this, toa
certain extent, must ever be the case when the ordinary laws, framed for
the suppression of wrong-doing, and the protection of the well-doer, are for
a time suspended. The circumstances which are supposed to render neces-
sary their suspension, are almost sure to be such as to excite both fear and
passion ; and some injustice, and we fear some cruelties, will be certain at
such times to be perpetrated; but we think that much which is now
lamented might have been avoided, if clear and precise instructions had
been given for the regulation of the conduct of those engaged in the sup-
pression, and every officer had been made to understand that he would be
held responsible for the slightest departure from those instructions. It
does not seem reasonable to send officers upon a very difficult, and perfectly
novel service, without any instructions, and to leave everything to their
judgment. But as, under any circumstances, however carefully instruc-
tions may be prepared, and however implicitly obeyed, the evils of martial

‘law must be very great, we are driven to consider whether martial law
might not have been terminated at an earlier period than the expiration of
the thirty days allowed by the statute.”

(6) “ We know how much easier it is to decide this question after than
before the event, and we are aware, too, that sometimes the success of the
measures adopted for the prevention of an evil, deprive the authors of these
measures of the evidence they would otherwise have had of their necessity.
We have endeavoured, therefore, to place ourselves, as far as is possible, in
the position of the Governor and his advisers, at the time their determina-
tion was arrived at. It was not till the 21st of October that the Maroons
marched to Torrington, which evidently was the stronghold of the insur-
gents, and which place, from the marks of preparation found there, it had
been intended to defend. After, however, firing a few shots, they fled at
( 424 )

it is to decide such questions after than before the event ;
and that sometimes the success of the measures adopted for
the prevention of an evil, deprives the authors of those
measures of the evidence they would otherwise have had of
their necessity. And they candidly avowed that their
object was to place themselves, as much as possible, in the
position of the Governor at the time.

Indeed, the Commissioners were so sensible of the difficult
elements of judgment involved in the question of the con-
tinuance of martial law, that they carefully abstained from
expressing their opinion that it had been continued too
long in legal existence, and cautiously confined themselves
to the expression of an opinion that, during the latter part
of the period of its continuance, it ought not to have been
carried out fully in all its severity ; and this plainly implied
the legality of the measures taken under martial law (a).

the approach of the Maroons; and on the following Monday, the 28rd, Paul
Bogle was apprehended, with his few remaining followers, and on the 24th
was conveyed as a prisoner to Morant Bay. From this time it must have
been clear to all that the rising in St. Thomas -in-the-East was put down,
and that the only thing to be feared was simultaneous risings in other
parts of the island. The question to be considered, in deciding upon the
conduct of the Government, is not whether such risings were in fact likely
to take place, but whether the Government, with the information then in
their hands, had reasonable grounds for apprehending they might tako
place. It will be seen that they were receiving almost daily reports from
different parts of the island, which must have led them to the conclusion
that considerable danger of such risings existed. They could not at the
time investigate, as we have, the grounds on which those reports rested.
They were forwarded by the custodes of different parishes, in whom the
Government was bound to place a certain amount of confidence, and they
would have incurred a serious responsibility if, with this information before
them, they had thrown away the advantage of the terror which the very

name of martial law is calculated to create, in a population such as that
which exists in this island.”

(a) “ But there was a course which might have been pursued by which
that advantage would have been secured, and yet many of the evils ordi-
narily attendant upon martial law avoided. On the 30th of October it was
formally stated by the Governor, that the wicked rebellion lately exist-
ing in certain parts of the county of Surry, had been subdued, and
that the chicf instigators thereof and actors therein had been visited
( 425 )

With regard to the measures taken under martial law for
the suppression of the rebellion, the Commissioners con-
sidered them, as they have been considered in these pages,
under two main heads, of military measures in the field,
and of measures which may be deemed deterrent, 4.¢., exe-
cutions of prisoners on summary enquiry or sentences of
court-martial. And as to the former, they quoted, with
approval, such orders as had been issued by the General in
command or the Commander-in-Chief, although they were
of opinion that more explicit orders might properly have
been issued. They stated: “ We think that much which
is lamented, might have been avoided, if clear and precise
instructions had been given for the regulation of the con-
duct of those engaged in the suppression. It does not seem
reasonable to send officers upon a very difficult and per-
fectly novel service, without any instructions, and to leave
everything to their judgment.”

The Commissioners contented themselves with recounting
the military movements and measures taken, and though
they mentioned with reprobation one or two instances of
excess by private soldiers without orders ; they pronounced
no censure upon the officers, and, on the contrary, concluded
this part of their Report, by a distinct expression of general
approval (6) of the military measures which had been taken
in the suppression of the rebellion.

with the punishment due to their heinous offences, and that he was certified
that the inhabitants of the districts lately in rebellion, were desirous to
return to their allegiance. From this day, at any rate, there could have
been no necessity for that promptitude in the execution of the law, which
almost precluded a calm enquiry into each man’s guilt or innocence.
Directions might and ought to have been given that courts-martial should
discontinue their sittings ; and the prisoners in custody should then have
been handed over for trial by the ordinary tribunals.” This necessarily
implies that martial law, in its full force, did deprive them of these privi-
leges, or, in other words, that the trials by courts-martial were legal.

(a) Vide p. 39. As to the orders (vide ante).

(b) “It appears to us that the strategical positions taken up, the detach-
ments posted in the disturbed districts and in the island generally, and the
active co-operation of the naval foree, produced a most beneficial effect, and
( 426 )

In commenting upon the measures taken under martial
law, for the suppression of the rebellion, no censure was
passed upon any officer. The Commissioners directed their
observations most particularly to the executions of prisoners,
either on summary enquiry or on sentence of court-mar-
tial (a), and their comments plainly implied, that they
deemed that death might lawfully be inflicted upon pri-
soners taken under martial law, upon proper enquiry and
proof of complicity in the rebellion.

The Commissioners (6) specially adverted to the evidence

by the prompt and rapid manner in which the different movements were
executed, the outbreak was overcome in a very short period (p. 25).” The
outbreak was overcome, not the rebellion, still less the state or spirit of
rebellion, out of which the rebellion and its “ outbreak ” arose, and which
it was the object of martial law to subdue. There was some subsequent
confusion of these two very distinct matters.

(a) “ We carefully examined into every case in which it was alleged that a
life had been taken. Comment has already been made on cases of destruc-
tion of life, which happened under exceptional circumstances. The con-
duct of the black soldier, on the road between Manchioneal and Port
Antonio, caused the death of ten persons, without any enquiry or proof of
guilt. The excuse of dread of the soldier, made by those who witnessed
his acts and might have interfered, cannot be allowed. In none of the
cases where deaths occurred from shots fired on the march, except-in the
march upon Torrington, does it appear that any actual resistance was
offered to the advance of the troops.”

(6) “It will doubtless be observed, that a great deal of evidence laid before
us, with a view of proving the use of undue severity during the existence of
martial law, has reference to the conduct of Mr. Gordon Ramsay, the
Provost Marshal. As he is now about to take his trial on uw charge of
wilful murder, for an act done by him while he filled that office, it was not
thought right by any of the parties concerned in the enquiry, that he
should be asked any questions, the answers to which, or a refusal to answer
which, might prejudice him on his trial. It will be obvious that, for the
same reason, it would not be right for us to make any remarks upon his
conduct. Itis due to those under whom Mr. Ramsay acted, to state that no
complaints of the cruelties now charged against him, although stated to
have heen witnessed by many, were made to those who placed him in
authority, and had the power, and undoubtedly would have had the will,
to deprive him of that authority,if such cruelties had been shown to have
been committed. Further, we cannot help noticing the conduct of a
magistrate, who states that he witnessed, what, in his opinion at the time,
appeared to be an act of murder, without giving any intimation respecting
( 427 )

laid before them as to the conduct of the Provost
Marshal, and plainly indicated their opinion that the
charges against them were not very reliable, not having
been made at the time, while they also quoted with
approval the instructions (a) issued to him by the General
in command, defining his duties.

The Commissioners entered fully into the trials by
courts-martial, and the tenor of their comments thereon
plainly implied the legality of such trials ; for they entered
into the propriety of the proceedings, with reference to
sufficiency of proof, the fairness of the trial, and the degree
of the punishments inflicted, all of which would be quite
irrelevant if the trials were illegal (6). And upon the whole,
they distinctly approved of the proceedings ; thus affirming
not only their legality, but their propriety.

it. He states that he was prevented by fear; but this did not prevent his
making a formal complaint against Mr. Gordon Ramsay, when a compara-
tively trifling act of injustice was committed against himself; and it seems
that he consented not to press his complaint in order that the public might
not lose the services of Mr. Ramsay.” (Vide ante, p. 375.)

(a) Brigadier-General Nelson, upon being made acquainted with the
conduct of Mr. Ramsay towards this magistrate, sent the following repri-
mand:—“ Having given Mr. Marshalleck’s complaint and the Provost
Marshal’s explanation my grave and serious consideration, it is my duty to
inform the Provost Marshal, that in every way connected with the case
he has exceeded his powers, and adopted a course I must strongly repre-
hend. Briefly, the Provost Marshal, in acting as he did, is open to very
severe censure, much of which I withhold in consequence of the good
service he has done, and because I hope that this error in dealing with Mr,
Marshalieck was the result of over-zeal. I peremptorily forbid any
summary punishment being inflicted within the camp henceforth ; and all
cases of a serious nature are to be referred for my decision, or that of my
aide-de-camp, to whom alone I shall delegate the authority to dispose of
such.” This is evidently approved of. (Vide ante, p. 205.)

(2) “The number of executions by order of courts-martial appeared to ug
so large, that it became very important to ascertain, as far as we were
able, the principles upon which the members constituting the courts
acted, and the sort of evidence upon which their decisions were pro-
nounced. 1t would be unreasonable to expect that in the circumstances
under which these courts were assembled, there should be the same perfect
regularity and adherence to technical rules which we’ are accustomed to
witness in our ordinary tribunals; but there are certain great principles
( 428)

Some of their comments, indeed, upon particular cases,
perhaps (a), might be deemed to savour rather more of the
strictness of English criminal procedure, than the substance

which ought under no circumstances to be violated, and there is an amount
of evidence which every tribunal should require before it pronounces a
jungment which shall affect the life, liberty, or person of any human being.
In order to ascertain whether these principles have been adhered to, and
whether in all cases this necessary evidence has been required, we have
carefully read the notes of the evidence given before the different courts,
upon which notes the confirmations of the sentences were pronounced. In
the great majority of the cases the evidence seems to have been unobjec-
tionable in character, and quite sufficient to justify the finding of the
court. It is right also to state that the account given by the more trust-
worthy witnesses as to the manner and deportment of the members of the
courts was decidedly favourable. But we think it right also to call atten-
tion to cases in which either the finding or the sentence was not justified
by any evidence appearing on the face of the proceedings.

(a) “In the case of Samuel Clarke, George M‘Intosh, and William Grant,
in all of which the notes of the proceedings will be found fully set out in
appendix, and in each of which cases also some witnesses were examined
before ourselves, the evidence appears to us to have been wholly insufficient
to justify the findings.” It, however, {would be entirely for the courts-
martial to judge of the weight of the evidence. “It appears also from the
proceedings that one person was executed upon proof that he was advising
the rioters on the 7th of October how to act, and that he resisted the police
and assisted in handcuffing them on the 10th. Another, on proof that he
had resisted the police on the 10th, having in his hand a cutlass and big
stick, and that he made use of the following expression:—‘ You were
taking my name down on Saturday ; now I can take my revenge. If we
did not consider one thing, we would take your head off.’ But if there
was a rebellion, this was undoubtedly the outbreak (vide ante, p. 122) ;
and these men clearly were parties toit. ‘‘Three persons were convicted
and executed upon the production and proof of affidavits made behind
their backs by persons, who, for anything that appears to the contrary, might
perfectly well have given their evidence in open court.” As to this, how-
ever (vide ante, p. 406). “At Port Antonio, the evidence allowed to be
be given was of a most objectionable description. William Troop gave
evidence against William Mitchell of a confession made by the latter of
his having assisted in the murder of Mr. Hire, and immediately afterwards
was himself put upon his trial as an accessory to the same murder,and was
convicted, upon the evidence of Mitchell, of a confession made to him,
coupled with the affidavit of a person whose absence was not accounted for.”
As to this again (vide ante, p. 406). ‘Three persons were convicted and
two were executed upon the evidence of a confession made by a man shortly
before his execution, in which he stated that the prisoners had assisted in
( 429 )

of natural justice; which is all that could be obligatory
upon such tribunals as courts-martial under martial law.
And the Commissioners did not indicate any idea that the
matters they disapproved, as not according to the better
mode of procedure, went to the substance of justice.

The comments of the Commissioners, indeed, under this
head—doubtless to be ascribed to the influence of the legal
members of the Commission (4)—and, no doubt, natural
enough, as coming from criminal lawyers, accustomed to
that strictness, in favour of the accused, which even our
own judges (b) sometimes regard as rather a defect of
our criminal procedure—plainly implied the legality of the
trials.

Even in adverting to that class of cases (¢), in which the

the murder for which he himself was about to suffer. Five persons were
convicted on the unconfirmed testimony of a man himself just convicted
and sentenced to death as a spy, and for having incited others to join in
the rebellion, one of the persons so convicted having himself given evidence
to prove the case against the spy.” The Commissioners, however, did not
suggest that these executions were legally wrong. By our common law, a
person on whose testimony another has been convicted, may himself be
convicted and executed on the evidence, either of that person, or any one
else. (Vide R. v. Rudd; Cowper’s rep.)

(a) Vide ante, p. 419. ‘ At Manchioneal, also, affidavits were regularly
received as proof of the facts deposed to, and in some cases in which death
was the sentence the affidavits constituted the only evidence.” (Sed vide
ante, p. 406.) “ At Up-Park Camp the trials seem to have been conducted
with great regularity, and there were only three in which capital punish-
ment was inflicted. But, in one of these cases, the only offence charged or
proved was the use of the following expression by a convict, in one of the
cells of the Kingston gaol :—‘I have seen too much gun. Creoles are fools.
If it (meaning the present rebellion) had been in Africa, we would have
known what to do immediately. If I had but five of my countrymen, I
would make you see something. IfI had a sword, I would kill Mr. Shaw
and Mr. Horton. The black men ought to rise like St. Domingo, to take
Jamaica from the buckras,” The above observations are founded exclu-
sively on the proceedings themselves, which were submitted for confirmation
to the Commanding officer, and on which it would appear that his confir-
mation of the sentence was founded.”

(6) RB. v. Suddis, 1 East’s rep. 816. Vide ante, p. 379.
(c) Vide ante, p. 406.
( 480 )

prisoners had been sentenced by courts-martial, to terms of
imprisonment or penal servitade, which might be remitted,
if illegal, and from which, in point of fact, they had been
released, the Commissioners (#) cautiously abstained from
declaring that the trials and sentences were illegal, and put
the release of the prisoners upon another ground, not
indeed intelligible, but certainly not that of illegality.

And, although there was a passage (b) in the Report,
which seemed to imply that some of the sentences were
illegal, it was left uncertain whether this might not mean
that they were so on account of their excessiveness ; and, at
all events, if it implied that the trials and sentences were
necessarily illegal, then the passage was logically inconsis-
tent with the whole tenor of the Report, and would be
utterly at variance with judicial authority (c).

(a) “Upwards of 100 of those who were flogged were sentenced also to
different terms of imprisonment, varying from six months to twelve years.
As, however, from the time of the expiration of martial law there was no
power to enforce these sentences, the persons so sentenced have been released.”
The Commissioners not only did not say that the trials or sentences in
these cases were illegal, or that the sentences were remitted on that ground,
but imply the contrary, that the sentences were legal, and that the pri-
soners were released, ‘‘ because, after the expiration of martial law, there
was no power to enforce the sentences.” What that means is not intelli-
gible. It would be logical to say that the sentences were illegal ; but then,
if so, all the trials and sentences were equally illegal, whereas the Commis-
sioners plainly implied the contrary.

(6) Thus, in a subsequent part of the Report there was the following :—
“Tn other cases the sentences seem wholly disproportioned to the offence
charged. The illegality, however, of these sentences has happily prevented
them from being carried out to their full extent. One man was sentenced
to fifty lashes, and three years’ imprisonment, for travelling without a pass,
and not giving a satisfactory account of himself; another to fifty lashes,
and five years’ imprisonment, upon proof that, in addition to not giving a
satisfactory account of himself, he confessed ‘that he was coming from the
residence of the late rebel, George William Gordon.’ ”

(c) Because, as already shown (vide ante, p. 379), when a court-martial
sits abroad, with a discretionary authority (as is the case under martial
law), it has been distinctly held that it has authority to sentence a prisoner
to a long term of penal servitude, even in a case in which such a sentence
cannot be imposed by the law of England. (R. v. Suddis, 1 East’s rep.)
( 481 )

The Commissioners entered fully into the leading case of
Gordon, who was arrested out of the proclaimed district (a),
taken into it, and tried, convicted, and executed for com-
plicity in the rebellion. But they did not question the
legality of the proceeding ; and, by stating the facts of his

If, therefore, the courts had any authority at all, they had authority to pass
such sentences. (Vide ante, pp. 385, 388.)

(a) Thus, after stating his arrest, on the 17th October, at Kingston, they
went on to state :—“ From Kingston he was sent by sea to Morant Bay,
where he was put on shore a prisoner on Friday evening, the 20th October.
The next day a court-martial was sitting for trial of prisoners there, con-
sisting partly of members of the Legislature. Brigadier-General Nelson,
however, having deemed it right that Mr. Gordon should not be tried by a
court composed of persons who might be supposed to be influenced by local
prejudices, adjourned that court, and another was convened, before which,
about two o'clock the same afternoon, Mr. Gordon was brought for trial.
The charges against the prisoner were for furthering the massacre at Morant
Bay, and at divers periods previously inciting and advising with certain
insurgents, and thereby, by his influence, tending to cause the riot. Two
heads of offence were drawn up, one for high treason, the. other for com-
plicity with certain parties engaged in the rebellion, riot, and insurrection
at Morant Bay. One witness has stated that more than once during this
trial, at the opening and during its progress, Mr. Gordon made application
to postpone the trial, on the ground of want of jurisdiction of the court to
try him, and also on account of the absence of material witnesses for the
defence. The witness, however, who deposes to this seemed wholly
unworthy of credit. Neither the person who independently reported the
trial for publication at the time, nor the documents of the court recording
the proceedings and particulars of the trial itself, make any mention of
such an application, one of such importance as could hardly have escaped
notice. Other persons present at the trial, who heard all that passed there,
deny that any such application was made. After the case against the pri-
soner had elosed, Mr. Gordon inquired for Dr. Major, who, he said, could
prove that the state of his health had prevented him from attending the
vestry meeting at Morant Bay on the 11th October. The Provost Marshal
was sent from the court to look for the doctor, and, on returning shortly
afterwards, said to Mr. Gordon, “ Dr. Major is not in the bay.” The wit-
ness Theodore Testard was then called by Mr. Gordon to prove the same
fact, but he had no knowledge on the subject. But he stated that Gordon
did not appear to be ill. Considering the importance then attached to Mr.
Gordon’s absence from the vestry on the 11th of October, it would have
been much more satisfactory if some delay had been allowed, in order that
Dr. Major might have been sent for to speak to the state of his health on
that day.” (Vide ante, p. 404.)
( 432 )

arrest and trial without comment, and entering into the
propriety of the trial, they appeared to imply its legality.
In setting out the evidence (a), in substance, as already
stated, the Commissioners said not a word against the fair-
ness of the trial; they merely stated that part of the
evidence consisted of depositions of persons, whose depo-
sitions would not have been admissible on a trial at law or
on a regular court-martial ; and, without saying that there
was no evidence which could justify the court in its find-
ing, they only added the expression of their own opinion,
that the ewpress evidence in the case appeared to them
insufficient to establish “the charge ” (6) ; a mere expression

(a) “ The evidence taken consisted of documents and oral testimony. Some
of these documents were selected from the papers of Mr. Gordon by Briga-
dier-General Nelson, and others were statements of persons taken and
sworn before magistrates, and then forwarded to Mr. Ramsay, the Provost
Marshal. All these were laid before the court by the Provost Marshal.
They consisted of (vide ante, p. 399) William Robertson Peart, James Fyfe
Humber, &c., whose joint statement was read, deposing to the matter
spoken by Mr. Gordon at the Vere meeting in September. Both of these
persons were in Jamaica at the time of the trial, and might have been
summoned to give oral testimony. Charles Chevannes and George Thomas
might also have been called as witnesses, as they were living in Jamaica.”
But G. Thomas was ill in a hospital, (vzde ante, p. 280). “ The written state-
ments of these four persons had been taken in the absence of Mr. Gordon,
and were inadmissible as proofs against him according to the rules that regu-
late evidence in English courts, either civil or military” (that is, regular
courts-martial or common law trials). “ With regard to the written statements
of J, Anderson, James Gordon, and Elizabeth Jane Gough, they were not
legal evidence, but those persons were sworn and examined at the same
trial. The printed placard headed “State of the Island,” is a duplicate of
that above-mentioned as posted up on a tree in August at Morant Bay, the
original draft of which was proved to have been in the handwriting of Mr.
G. W. Gordon. Five witnesses were sworn and examined for the prose-
cution, and one on behalf of the prisoner. The evidence, oral and
documentary, appears to us to be wholly insufficient to establish the charge
upon which the prisoner took his trial.” (Sed vide ante, p. 399.)

(6) ‘‘The evidence oral and documentary.” Yet these eminent lawyers,
of course, were fully aware this was not the whole evidence in the case before
the court-martial, but that they might lawfully enterpret and apply the
express cvidence by the light of general facts of a notorious character, and
might draw inferences of fact from the whole of the evidence, z.¢., from the
express evidence thus interpreted and applied (vide ante, p. 402). That
( 483°)

as to the weight and effect of the evidence, which was
legally for the court-martial, and plainly implying (in the
absence of any suggestion to the contrary), the entire
legality of the trial; and not implying, necessarily, any
degree even of unfairness, or impropriety.

And not only so, but it appeared from the remarks (a)

they should thus cautiously limit themselves to the express evidence, and
to the mere expression of their own opinion upon its sufficiency, was as
significant, as their carefully abstaining from saying on which of the three
charges included in the indictment, treason, sedition, and incitement
to murder, the evidence was wholly insufficient. As to treason, it was
80 (vide ante, p. 191). But they did not, and could not, distinctly say that
there was not sufficient evidence of incitement to sedition or massacre.
Witnesses distinctly swore that the prisoner did incite to massacre.

(a) Upona careful review of this evidence, we have formed the opinion
that the true explanation of Mr. Gordon’s conduct is to be found in the
account which he has given of himself. “I havejust gone as far as I can
go,and no further. If I wanted a rebellion I could haye had one long ago.
Ihave been asked several times to head a rebellion, but there is no fear of
that. I will try firsta demonstration of it,” &c., &. Mr. Gordon might
know well the distinction between a “ rebellion” and a ‘‘ demonstration
of it.” He might be able to trust himself to go as far as he could with
safety, and no further. But that would not be so easy to his ignorant and
fanatical followers. They would find it very difficult to restrain themselves
from rebellion when making a demonstration of it. Ifa man like Paul
Bogle was in the habit of hearing such expressions as those contained in
Gordon’s letters, as that the reign of their oppressors would be short, and
that the Lord was about to destroy them, it would not take much to con-
vince him that he might be the appointed instrument in the Lord’s hand
for effecting that end ; and it is clear that this was Bogle’s belief, as we
find that after the part he had taken in the massacre at Morant Bay, he,
in his chapel at Stoney Gut, returned thanks to God that “he had gone to
do that work, and that God had prospered him in his work.” It is clear,
too, that the conduct of Gordon had been such as to convince both friends
and enemies of his being a party to the rising. We learn from Mr. Gordon
himself that in Kingston, where he carried on business, this was the general
belief as soon as the news of the outbreak was received. But it was fully
believed also by those engaged in the outbreak. Bogle did not hesitate to
speak of himself as acting in concert with him. When Dr. Major was
dragged out of his hiding place on the night of the 11th of October, he
saved himself by explaining that Mr. Gordon “ would not wish to have him
injured,” and when Mr. Jackson made a similar appeal for his own life, to
the murderers of Mr. Eyre, it appears to have been equally successful.
The effect which was likely to follow the meetings, which took place during
the spring and summer of 1865, in some of which Mr. Gordon took a

FF
( 434 )

made by the Commissioners, upon the evidence taken before
themselves as to the case, and which conclusively showed
that the prisoner had, in fact, incited to sedition, that the
Commissioners had all along in their minds an impression
that the charge necessarily involved complicity, either in
the particular massacre, or in a general conspiracy against
the Government.

So that it would be quite consistent with their opinion
upon the case, that the prisoner was properlyas well as legally
convicted of inciting to sedition or rebellion, which would be
capital by martial law. And the Commissioners (a), while

part, was foreseen by one of his most ardent supporters, who, writing to a
common friend on the subject of an article he had inserted in the news-
paper, respecting the Vere meeting, used these words: “ All I desire is to
shield you from the charge of anarchy and tumult, which in a short time
must follow these fearful demonstrations.” Although, therefore, it appears
exceedingly probable that Mr. Gordon, by his words and writings, produced
a material effect on the minds of Bogle and his followers, and did much to
produce that state of excitement and discontent in different parts of the
island, which rendered the spread of the rebellion exceedingly probable,
yet we cannot see, in the evidence which has been adduced, any sufficient
proof either of his complicity in the outbreak at Morant Bay, or of his
having been a party to a general conspiracy against the Government.

(2) “On the assumption that, if there was in fact a widespread conspiracy,
Mr. G. W. Gordon must have been a party to it, the conclusion at which
we have arrived in his case is decisive, as to the non-existence of such a
conspiracy. The only evidence, beyond that of vague rumours, in any
degree tending to show an intended rising at some future time, was given
by one witness, who deposed to a statement made by an insurgent engaged
in attacking a property in the neighbourhood of Bath, that “it was not
their time ; that Christmas was their time, and they were preparing for it,
but as it had come on so soon they must go on and smash down everything,
and kill all the white and brown.” The Commissioners, however, must
have been speaking of a settled design for a rising at some specific time,
which would be very immaterial, if there was a general disposition to rise
at any time, as to which the evidence was overwhelming. “ We think, how-
ever, that various meetings had been held in the course of the summer, at
which speeches were made, tending to cause excitement, and discontent.
The effect of these speeches was the greater from being addressed to an ill-
educated and impulsive people. Upon this point also the evidence of Mr.
Fyfe, a stipendiary magistrate long resident in the island, is deserving ot
attention. He speaks of an opinion which he formed and communicated
at the time to the Government. He says: “There was a general excite-
( 435 )

negativing the fact of a general conspiracy or actual organi-
zation throughout the island, of which alone they acquitted
Gordon, declared that there had been meetings, to which he
had notoriously been party, by which, in fact, the negroes
had been incited to rise in insurrection ; and this of itself
amply sustained the conviction.

In the summary (a) given by the Commissioners of the
military punishments inflicted,—although, as already men-
tioned, all of them would have been illegal, unless under
martial law, they did not in the least indicate that any of
them were illegal, and the censures they pronounced in

ment that led me to think there would be a disturbance, and I wrote to Mr.
Hosack to that effect, after the meeting in Vere, to say that I thought the
law officers of the Crown ought to interfere ; that things were going too
far—that is, the meetings held byMr. Gordon; that we had no police, and
that a conspiracy might be hatched next door to our police station without
our knowing anything about it.”

(a) “ The total number of deaths caused by those engaged in the sup-
pression amounted to 439, and the total number of dwellings burned to
1000. With respect to the number of persons who were flogged, it is
impossible to state.it with any degree of accuracy. Sixty appear to have
been flogged by order of courts-martial ; one woman was sentenced to be
flogged at Morant Bay, but Colonel Nelson refused to confirm the sentence.
The number flogged without a court-martial was much larger. Seventy-
three were thus flogged at Port Antonio, forty-four at Up Park Camp, &c.,
and considerably above one hundred at Morant Bay. A still larger number
were flogged at Bath. Nearly fifty were flogged on one day, of whom
twenty were women. This did not, however, continue long, as Colonel
Fyfe, who arrived very few days after the floggings commenced, gave
positive orders for the discontinuance of the practice. The whole number
subjected to this degrading punishment during the continuance of martial
law, we think could -not have been less than six hundred. The mode of
inflicting the punishment at Bath calls for special notice. It was ordered
by a local magistrate, after a very slight investigation, and frequently at
the instance of book-keepers and others, smarting under the sense of recent
injury.’ The twisting of wire with the ropes was then mentioned with repro-
bation, and it was of these floggings (which, it will be observed, were
unauthorized by the officers), the Commissioners reported that, they were
“‘barbarous.” As regards the numbers flogged, however, they omitted all
estimate of the numbers of those actually engaged in the rebellion, and
which could hardly have been less than 4000 or 5000 (wide ante, p. 286)

FF 2
( 436 )

particular instances or classes of cases, implied the general
legality of the measures thus taken under martial law.

Although the Commissioners concluded (a) such a
general statement of their opinion, that the punishments
inflicted were too numerous, they gave no ground or reason
for that opinion, nor laid down any rules or principles upon
which they had arrived at the conclusion, nor by a regard
to which, officers on any future occasion, might avoid any
similar excess, nor did they refer to any evidence, to sup-
port their general opinion.

The Secretary of State (b), in his despatch to the Lieu-

(a) “Lastly, that the punishments inflicted were excessive, and that the
punishment of death was unnecessarily frequent. 2. That the floggings
were excessive. 3. That the burning of 1000 houses was wanton and
cruel.” They gave no instances in illustration of these heads of excess,
except alluding to a few floggings of women, and some cases of floggings
with wire-ropes, and an instance of ten men shot by a black soldier. With
these exceptions, they reférred to no evidence in support of any of these
statements, nor gave the grounds or reasons for any one of them, nor any
rule or principle on which they had arrived at the conclusion, that the
number of deaths or of floggings had been excessive (et vide ante, p. 413).

(6) Despatch of Mr. Secretary Cardwell, June 18:—‘ In the conclusions
at which you have arrived her Majesty’s Government generally concur.
Though the original design for the overthrow of constituted authority was
confined to a small portion of the parish of St. Thomas-in-the-East, yet
there can now be no doubt that the disturbances there had their origin in
a planned resistance to that authority. It is further evident, looking to
the singular rapidity with which disorder spread over an extensive tract of
country, and to the state of excitement prevailing in other parts of the
island, that the ultimate defeat of the insurgents would have been attended
with a still more fearful loss of life and property had they been permitted
to obtain a more than momentary success. Under these circumstances,
Governor Eyre fully deserves all the commendation which you have he-
stowed upon the skill, promptitude, and vigour which he manifested during
the early stages of the insurrection, to the exercise of which qualities on his
part you justly attribute in a great degree its speedy termination. As re-
gards the proclamation of martial law under the Island Act of 1844, her
Majesty’s Government agree with you that the Council of War had good
reason for the advice which they gave, and the Governor was well justified
in acting upon that advice. Her Majesty’s Government agree in your con-
clusion that the military and naval operations were prompt and judicious 5
and considering the large share personally taken by Governor Eyre in the
direction of those operations, they attribute to him a large share also of the
( 437 )

tenant-Governor, the Chief Commissioner, declared his en-
tire concurrence in these conclusions, and in the first place
distinctly declared his concurrence in the conclusion, that
there had been a rebellion, which fully justified the declara-
tion of martial law, and the acting upon it for some
period ; that is, as necessarily implied (a), in the sense in
which it has been expounded in these pages ; in which alone
with insignificant exceptions, the measures taken could
possibly have been legal.

And while, on the other hand (6), adverting to some
matters in which he had come, with the Commissioners,
to a conclusion contrary to the judgment which the Gover-
nor had formed, he was careful likewise to express his
concurrence in their just and candid observation, that it is
comparatively easy to decide such questions after the event,
and that the very success of the measures taken would
remove the evidence of this necessity, which might other-
wise have existed. And he was likewise careful to con-
vey (c) his concurrence with the judgment of the Commis-

credit which is due for their success. The addresses of the Legislative
Council, of the House of Assembly, of the various parishes of the island,
and of others, testify the sense generally entertained by the white and
coloured inhabitants of their obligation to Governor Eyre for the prompti-
tude and vigour of those measures.

(a) Vide ante, p. 305.

(b) “On the other hand, however, it must be borne in mind that martial
law, and the execution of capital sentences under martial law, continued
for the full period of a month authorised by the statute, although after
the few first days of the insurrection no serious outrages were com-
mitted by the insurgents, nor was any resistance offered to the troops. As
early as the 27th October, Governor Eyre wrote to me that on the 20th he
had left Morant Bay, satisfied that the rebellion was got under; and on
the 30th, a fortnight before the actual expiration of martial law, it was
formally stated in the proclamation of amnesty that the wicked rebellion
lately existing in certain parts of the county of Surry had been subdued ;
that the chief instigators thereof, and actors therein, had been visited with
the punishment due to their heinous offences ; and that the Governor was
certified that the inhabitants of the district lately in rebellion were desir-

ous to return to their allegiance.” a. .
(c) “You have justly observed how much easier it is to decide such ques-
( 438 )

sioners, in precisely the same guarded and limited terms
in which they had conveyed it; terms plainly implying
entire legality, because limited to considerations of pro-
priety ; and pointing only to the propriety of limiting the
operation of martial law, during the latter part of the
period of its continuance.

And the Secretary of State was careful to recapitulate (a)
the grounds upon which the Governor had vindicated

tions after than before the event, and that sometimes the success of the
measures adopted for the prevention of an evil deprives the authors of those
measures of the evidence they would otherwise have had of their necessity.
Yet, upon a full review of all the circumstances of the case, her Majesty’s
Government cannot but agree with the conclusion of your report, “ that by
the continuance of martial law in its full force to the extreme limit of its
statutory operation, the people were deprived for longer than the necessary
‘period of the great constitutional privileges by which the security of life
and property is provided for.” They also agree with you that, if not from
the date of the apprehension and execution of Bogle, at least from the time
at which the reinforcements from Nassau and Barbadoes had arrived, and
the amnesty was proclaimed, “there could have been no necessity for that
promptitude in the execution of the law which almost precluded w calm
inquiry into each man’s guilt or innocence ;” and that “ directions might
and ought to have been given, that courts-martial should discontinue their
sittings. The prisoners in custody might well have been banded over for
trial by the ordinary tribunals.”

(a) “ Despatch of Mr. Secretary Cardwell, 18th June, 1860, Parl. Pap. :—
That I may do full justice to the reasons which induced him to consider
desirable the continuance of martial law, I will transcribe them in his
own words. In answer to your question, No. 46,634, he says:—‘I now
give the reasons which induced me to think that martial law should be
continued. They are very short:—1. In order to deal summarily with
the cases excepted from the operation of the amnesty, many of the parties
being as guilty as those tried by courts-martial previous to the amnesty,
and there being no valid reason why they should not be dealt with in the
same manner. 2. To’ preserve peace and good order in the districts
where the rebellion had existed, and to afford time to reorganise the civil
institutions. The custos, the magistrates, the clergy, and other principal
inhabitants had been killed, wounded, or driven away. The inspector of
police had been killed, and the force become disorganised and demoralised.
The court-house itself was burnt to the ground. It was impossible to re-
establish civil institutions and relations at such a juncture, or with a sufficient
time being allowed for reconstruction and for the return of magistrates,
clergy, and other inhabitants who were compelled to fly during the rebellion.
I think that is one very important reasun why it was impossible to have
( 439 )

the continuance of martial law, and which it is desirable to
bear in mind, because involving obviously, as the Secre-
tary of State acknowledged, matters of judgment, on which
different minds might take different views.

And in expressing his concurrence in the opinion of the
Commissioners, that martial law had been carried out too
long, and too severely, the Secretary of State (a) with

suspended martial law.’ And in answer to your next question, 46,635,—
‘What, in your opinion, would have been the evils that would have arisen
from taking that particular course on the 30th of October?’ he proceeds :—
‘Srdly. It was important that for some short time longer at least the
Government should continue martial law, to operate as an example and a
warning in terrorem over the disaffected of other districts, without the
necessity of imposing it in those districts. 4thly. The indication which
the continuance of martial law in the county of Surry for some days after
the amnesty gave of the determination of the Government to deal promptly
and decisively with persons guilty of rebellion, or the concomitant crimes
of murder and arson, was the most efficacious step it could take to over-
awe the evil-disposed in other parts of the colony, and thereby prevent any
rising amongst the negro population of the districts where disaffection and
seditious tendencies were known to exist.’ Those were the four principal
reasons which operated with the Government at the time.”

(a) “It remains, at present, to consider the conclusions at which
have arrived with respect to the continuance of martial law in its full force,
to the extreme limit of its statutory operation, and to the excessive nature
of the punishments inflicted. In reviewing this painful portion of the case,
the greatest consideration is due to a Governor placed in the circumstances
in which Governor Eyre was placed. The suddenness of the insurrection;
the uncertainty of its possible extent ; its avowed character as a contest of
colour; the atrocities committed at its first outbreak ; the great disparity
in numbers between the white and the black populations; the real dangers
and the vague alarms by which he was on every side surrounded ; the in-
adequacy of the force at his command to secure superiority in every dis-
trict; the exaggerated statements which reached him continually from
distant parts of the island ; the vicinity of Hayti, and the fact that a civil
war was at the time going on in that country ;—all these circumstances
tended to impress his mind with a conviction that the worst consequences
were to be apprehended from the slightest appearance of indecision. Nor
must it be forgotten that he resisted the proposal urgently made to him by
the custos and the magistrates to proclaim Kingston, that he refused to
accede to the suggestion of Colonel Whitfield to proclaim the parishes of
Trelawney, St. James’, Hanover, and Westmoreland; ortothat of Major
General O’Connor, who thought that from the first the whole island ought
to have been placed under martial law; and that in respect both to the
( 440 )

great sense and candour, made large allowances for the
dangerous nature of the rebellion ; its avowed character, as
one of race and colour, the disparity of the two classes of
the population, the deficiency of military force, and the
other circumstances on which the Governor had grounded
the necessity for martial law.

And in the passage (a) in which the Secretary of State
conveyed his concurrence in the judgment of the Com-
manders on this head, he was careful to recognize the value
of terror, as one of the elements of martial law, and of
deterrent measures, such as court-martial and infliction of
summary punishment, asa means of keeping up that terror,
while at the same time he pointed out that punishment
was not the object but the means, and that these measures
were only to be resorted to so long as such deterrent

assistance offered by the Governor of Cuba and to the summoning of British
troops from Halifax, Nova Scotia, he showed himself superior to feelings of
alarm expressed and entertained by those around him.”

(a) “It may, indeed, be admitted that, as you have said, the Government
would have incurred a serious responsibility, if, with the information be-
fore them, they had thrown away the advantage of the terror which the
very name of martial law was calculated to inspire; but it appears from
the summary of the sentences by courts-martial appended to your report,
that the numbers executed must have included many who were neither
ringleaders of the insurrection nor participators in actual murder or out-
rage of the like atrocity ; while for the wholesale flogging and burning of
houses, the circumstances of the case do not appear to furnish any justifica-
tion. Future good government is not the object of martial law. Example
and punishments are not its objects: its severities can only be justified when
and so far as they are absolutely necessary for the immediate re-establish-
ment of the public safety. Her Majesty’s Government have learnt rather
with regret than with surprise, as the result of your careful examination of
the proceedings, that while in the great majority of the cases the evidence
seems to have been unobjectionable in character, and quite sufficient to
justify the finding of the court, and the account given by the more trust-
worthy witnesses as to the manner and deportment of the members of the
courts was decidedly favourable, yet you have been compelled also to call
attention to some cases in which either the finding or the sentence was not
justified by any evidence appearing on the face of the proceedings ; and to
other cases, of which the evidence allowed to be given was of a most objec-
tionable description ; and again to others, in which the sentences seem to
have been wholly disproportioned to the offences charged.”
( 441)

measures were really necessary to remove danger, and
re-establish safety.

With reference to the excesses, the Secretary of State
concurred in the view of the Commissioners, that too
much had been left to the discretion of the officers (a), and
that clear and precise instructions ought to have been
issued to them, though of what particular nature he did
not indicate; and he confined himself cautiously to the
opinion of the Commissioners with regard to the responsi-
bility of the Governor for the measures taken under mar-
tial law.

The Secretary of State (b) admitted that, as laid down
in the previous portions of this work, strictly speak-
ing, the primary responsibility for the measures taken
under martial law would rest with the military autho-
tities, and that their nature would only come generally
under the notice of the Governor (c). But he expressed it

(a) “Her Majesty’s Government have arrived at this conviction with the
deepest concern. They are desirous of recognising every consideration
which can extenuate the condemnation it necessarily involves. But their
principal anxiety must be to prevent the recurrence in any future case of
proceedings like those which they now deplore. It appears to them to be
evident that, even in the first excitement of the disturbances, and still
more at some later period, if martial law was allowed to continue, instruc-
tions ought to have been issued to the officers to whom the actual conduct
of the operations was entrusted which would page rendered such an abuse
of power impossible. They ais She the words which you have

ing the words already cited).
are Secs ae to Mr. Eyre that I should accompany this observa-
tion by the statement that, in the instructions to Colonial Governors,
no reference is ‘made to the possible occurrence of such an emergency .
that in which he was placed. How far it may be possible ise ae
instruction which might assist the Governorin the case of future disturb-

ances arising in any colony, is a subject which will receive careful consider-

i f her Majesty’s Government.” ;

ae z 8 fst Mr. ie was only very eae ai ae oi
ually taken. In his first despatches in reply to my enq ‘

ae eeaeitist’ Il the general arrangements for the suppression an

A Ee belion vere made under his immediate direction, the

parkas i Ps is ata management of the districts under

eet colitis the appointment of courts-martial, the trial of

marti 9
( 442 )

as his opinion, that it was the duty of a Governor, on such
an occasion, to keep himself as well informed as possible of
the measures taken, in order that he might be ready to
exert the supreme authority of Government for the repres-
sion of any excesses.

With regard to the case of Gordon (q), tried and exe-

prisoners, the approval of sentences, and the carrying out of such sentences,
rested entirely with the military anthorities, were reported to the General
in command, and only partially came under his own notice in a general
manner ; and in his despatch of April 5, he further says: “ Having been
personally present in the eastern district up to 20th October, and considering
that one of the chief grounds stated for the appointment of a commission
of enquiry was an allegation of excessive and unlawful severity, I think it
right to mention that no such cases came under my own observation, nor
were any brought to my notice, or any complaints made to me against the
officers in command during the whole period of martial law;” and he then
proceeds to relate instances in which abuse had subsequently come to his
knowledge, and in which he had taken measures for punishment or for
enquiry. With respect to the measures of severity to which I have above
referred, you have not imputed, and Her Majesty’s Government do not
impute, to Mr. Eyre any personal cognizance, at the time, of those mea-
sures ; but they feel strongly that, when a Governor has been compelled to
proclaim martial law, it is his bounden duty to restrain within the narrowest
possible limits the severities incident to that law, and, for that purpose, to
keep himself constantly informed of what is taking place under it. In the
first alarm of such a disturbance, it cannot be expected that it will be
possible for him to restrain all persons, acting under martial law, within
the bounds which his own discretion would prescribe ; but if it were deemed
necessary to continue martial Jaw, it was the duty of the Governor to
inform himself of the character of the proceedings taken, and to put an
end to all proceedings which were not absolutely necessary, and, therefore
justifiable on the ground of necessity. Her Majesty’s Government cannot,
therefore, hold the Governor of the colony irresponsible, either for the
continuance or for the excessive severity of those measures.”

(a) ‘In his first despatch Governor Eyre directed the especial attention
of Her Majesty’s Government to the case of Mr. Gordon, who had been
arrested at Kingston, where martial law did not prevail, had been carried
to Morant Bay, tried by court-martial at that place, condemned, and
executed. To all the circumstances of this case you have given great
attention, and have reported your opinion that ‘the evidence, oral and
documentary, appears to be wholly insufficient to establish the charge upon
which the prisoner took his trial.’ In this conclusion Her Majesty's
Government concur. They have not forgotten that, while Governor Eyre
at first exempted Kingston, on grounds of public policy, from the pro-
( 443°)

cuted as the real head and author of the rebellion, the
Secretary of State, in terms exceedingly guarded and
cautious, expressed his concurrence, in the very ambiguous
conclusions of the Commissioners, abstaining, as carefully as
they had done, from saying anything against the legality of
the trial.

And, although the Secretary of State went on to de-
clare (a) that the Government could not but deplore and

clamation of martial law, he had it in his power, and would have exercised
that power, to issue a new proclamation, if he had thought it necessary to
do so, before arresting Mr. Gordon. They have duly weighed the reasons
which he has assigned for the course which he pursued, namely, ‘ that, con-
sidering it right in the abstract, and desirable as a matter of policy, that
whilst the poor black men who had been misled were undergoing condign
punishment, the chief instigator of all the evils should not go unpunished,
he at once took upon himself the responsibility of the capture; and that,
having seen the proceedings of the court, he concurred both in the justice
of the sentence, and in the policy of carrying it into effect, regarding it as
absolutely necessary for the future security of Jamaica, that condign
punishment should be inflicted upon those through whose seditious acts
and language the rebellion had originated. But it is evident that such
considerations ought to be admitted with great hesitation. If lightly
accepted, they would be liable to great abuse, and cases like the present,
instead of being regarded as warnings, might become precedents for future
action.”

(a) “In the present case, not only has the necessity of the course adopted
not been proved, but it appears from the evidence of Mr. Westmorland, one
of the executive committee, that he suggested at the time that Mr. Gordon,
who had been placed on board the Wolverine, should be reserved for tria.
by a regular tribunal, with all the means of defence which are secured by
the ordinary process of law to every subject of the Queen. This, in the
judgment of Her Majesty’s Government, would have been the proper
course. Considerations of public safety justified the arrest of Mr. Gordon.
His removal on board the Wolverine would have been judicious ; but his
trial by court-martial, and his execution by virtue of the sentence of that
court, are events which Her Majesty’s Government cannot but deplore and
condemn.” No reason is stated here for this opinion, except a hasty, ill-
considered suggestion by one member of the Council, which he himself did
not adhere to, and which was negatived by the Executive Committee, when
they approved of Gordon’s execution. Moreover, the Commissioners in their
Report (p. 37), distinctly stated that the Commander-in-Chief of the colony, as
well as the Gencral in command, and the Executive Committee, approved of
the execution ; aud it was proved befure the Commissioners, that to have put
Gordon upon his trial before a jury would have been pertectly idle (wide
( 444+)

condemn the execution, this, it was obvious, was only upon
what were deemed moral grounds; and mainly upon the
supposed possibility of procuring a trial sufficiently prompt,
fair, effectual, and deterrent, under ordinary law ; assuming
which, no doubt, there would be no necessity for a trial
under martial law.

With reference to the immunity conveyed by the pro-
clamation of martial law (a), as to all acts done in the pro-

Evidence of Walcott and Williams, vide ante, p. 393), And the Commis-
sioners did not venture to say that the man was not legally convicted, nor
that he was not properly convicted of a capital offence under martial law
(vide ante, p. 485); and, they disclosed facts proving conclusively that the
Governor and Council were right in believing him to have been the head
of the rebellion, and to have been privy to the massacre. It is manifest
that the view of the Secretary of State proceeded upon the assumption
that a trial under ordinary Jaw would have been sufficiently deterrent.
But that, as already pointed out, involved the assumption that no trial at
all was necessary at the time, and it was overlooked that acts of outrage,
and even of armed encounter, continued up to the very day of the trial.
Whether, however, the Secretary of State was right or wrong in his opinion,
that was the ground of it. Moreover, the opinion of the Secretary of
State, that the prisoner ought not to have been tried by court-martial at
all, is not supported by that of the Commissioners, who reported that, in
their view, the trials by court-martial ought not to have been continued
beyond the 30th Oct., whereas, Gordon was tried on the 21st, at which
time, the active ringleaders were still at large, and acts of outrage and of
armed rebellion still continued (vide ante). And their opinion that the
evidence was insufficient to sustain the charge, besides being equivocal, and,
in one sense, plainly opposed to the facts, would not show the trial to have
been improper, As to which, vide ante, p. 197—283.

(a) “ Her Majesty’s Government have been advised, by the law officers
of the Crown, that the effect of the Indemnity Act will not be to cover acts
done, either by the Governor or by subordinate officers, unless they are
such as (in the case of the Governor) he may have reasonably, and in good
faith, considered to be proper for the purpose of putting an end to the
insurrection, or such as (in the case of subordinates) have been done under,
and in conformity with, the orders of superior authority, or (if done without
such orders) have been done in good faith, and under a belief, reasonably
entertained, that they were proper for the suppression of the insurrection,
and for the preservation of the public peace of the island. As regards all
acts done by or under military authority, Her Majesty's Government are
advised that the proclamation of martial law, under the Island Statute of
1844, operated within the proclaimed district to give as complete an
indemnity as the Indemnity Act itself. But—1. For any acts done beyond
( 445)

claimed district, under military order and authority ; and,
with regard to the operation of, or necessity for, an act of
indemnity, the Secretary of State, on the advice of the law
officers of the Crown, distinctly declared a view of the law,
entirely in accordance with the view which has been indi-
cated in this work. He at the same time intimated (a)
that the Report would be submitted, so far as regarded the
conduct of the officers, to the military authorities ; and fur-
ther, that proceedings of a criminal character might be
taken, and that, therefore, certificates under the Indemnity
Act ought to be given carefully.

the proclaimed district, the authority of the Act of 1844, and of the pro-
clamation, is inapplicable. 2. Civilians who may have acted bona fide for
the suppression of the rebellion, although without military authority, would
have a protection secured to them by the Indemnity Act, which they might
not obtain from the mere operation of martial law. 3. Under the Indem-
nity Act, the certificate of the Governor is conclusive for the protection of
subordinates. I have already directed you, aud your own judgment doubt-
less would have led you to the same conclusion, how careful you must be in
giving these certificates; and, with this precaution taken, Her Majesty’s
Government have determined that the Act of Indemnity ought to be left
to its operation.”

(a) “TI have communicated copies of your Report, with the Appendix, to
the Secretary of State for War, and to the Lords Commissioners of the
Admiralty, who are the proper judges of the conduct of the military and
naval officers engaged in these transactions. On my own part, I have to
request that you will cause careful investigation to be made, in those cases
of civilians which appear to require it, with a view to such further pro-
ceedings as may be requisite and just. It will not be desirable to keep
alive in the colony the heartburnings connected with these lamentable
occurrences, by any very minute endeavour to punish every act which may
now be the subject of regret. But great offences ought to be punished. I
rely on your Government to accomplish this necessary object, and shall
expect to receive a full report of the measures which have been taken with
that view. You will, of course, be very careful not to give certificates
under the Indemnity Act, in any cases in which there is reasonable ground
to question the propriety of giving them.” The former part of this
passage fully recognizes one of the conclusions pointed to in ‘the previous
portions of this work, viz, that mere misconduct of military men in the
execution of martial law, ze., in carrying out orders, is a matter of military
cognizance, and the subsequent part equally recognizes another conclusion,
also pointed to in this work, that acts not in execution of orders, nor
honestly in suppression of a rebellion, but voluntarily, wantonly, and
wickedly, being criminal, are (if they are not punished summarily, as they
may be under martial law itself), for the cognizance of the criminal courts.
INDEX.

Abuse of legal authority, 76, 363.
military power, 79.
or excess, 355.
Acts under martial law, 84.
Acts under orders, 89.
Acts of State, 48, 49, 73.
Actual conspiracy or organization, 8.
absence of, not material, 288.
Actual riot or rebellion, 6.
measures for suppression of, 7, 23.
Actual malice, 82.
Advocate-General Judge,
opinions of, as to martial law, 107, 110.
Amnesty, policy of, 161, 163.
Arming and drilling, 39, 57, 225.
preparation for rebellion, 223, 225.
Arms, found in, 91, 139, 347, 354.
absence of, not material, 169, 329.
men in, attacked, 341.
Armed rebellion, 13, 119, 281.
Arrest, power of, 35.
how limited at common law, 33.
allowed under martial law, 64.
by order of Governor, 175, 392.
Articles of War, 60.
Attack, measures of, 328.
on bodies of men, 250, 330, 336, 346.
when allowed at common law, ibid., 144, 327
under martial law, 321, 331, 342, 356, 352.
Authority supreme under martial law, 128, 318.

Belligerents,
rebels, treated as, 140.
( 448 )

Bodies of men,
presumed to be in hostility, 322.
attacks upon, 6, 347.
risk at common law, 7, 23.
allowed under martial law, 30, 356.
Burnings of houses, 371, 374.
orders as to, 159, 374.
by rebels, 286.

Capture of rebels,
measures for, 140, 143.
Censure by the Crown, 230, 314.
Command, General in, authority of, 318.
appointment of, 138.
reports by, see authorities, ante.
reports to, ibid.
orders of, tbid.
Commander in-Chief,
appoints General in command, 138.
orders of, 138.
reports of, 144,
reports to, 148.
measures sanctioned by, 145.
Commission of enquiry, 261
; report of, 420—430.
Common law, scope of, 1, 20.
powers of, as to rebellion, 20, 30.
allows of action of military, 25.
defects of as to rebellion, 30, 71.
Common purpose or design, 40.
liability of those engaged in, 41
Conduct of officers,
enquiry as to, 265.
Conspiracy, common law as to, 11—42.
to levy war, 18.
to excite sedition, 34, 39.
under marial law, 236.
Continuance of martial law, 208, 293.
evidence as to, 293.
Courts-martial, 45. 66, 84. 90, 148, 158, 378.
under martial law, 90, 378.
as under military authority, 172, 176, 368, 370.

trials by, 377.
evidence as to, 385.
( 449 )

Declaration of martial law,
effect of, 56, 58.
is a call by the Crown for aid, 100.
Deterrent measures, necessity for, 30.
of the very essence of martial law, 64.
are repressive and protective, 133.
object of to excite terror, 133.
include summary executions, 67, 133.
or trials by courts-martial, 378, 438.
Disaffection, existence of, cause of rebellion, 112, 126.
Discretionary military power, 79.
Drilling, act as to, 39.
danger of, 208, 225.
Drumming for rebels, 357.
Drumhead courts-martial, 82, 147, 159 192.

Enquiry, necessity of on summary punishment, 80.
Enquiry by commission, 257.
difficulties of, 269.
scope of, 264.
into origin and nature of disturbances, 230.
as to conduct of officers, 308.
moral and legal, 315.
as to measures taken, 321.
as to particular cases, 369.
Evidence, principles of, 66.
rules of, not obligatory on courts-martial, 67.
express or inferential, 402.
Excess, meaning of, 304, 345.
Excessive severity, 305, 435.
Executions, under martial law, 356, 367.
on summary enquiry, 80, 81, 370.
Extent of rebellion, 286, 420, 412.

Firing of houses. See Burning.
Flogging, infliction of, on men, 341, 391, 435.
on women disapproved of, 375.
action for, 80.
murder by, 81.

General suspicion,
arrest on, 64.
GG
( 450 )

General in command,
‘supreme authority, under martial law, 71,
measures taken by, 129, 345, 341.
Gordon, case of 101, 392.
Governor, power of, 106, 135, 71.
liability of, 50.
trial of, 52.
measures of, 129.
directions of, as to prisoners, 384.
conduct of, 293, 430.

Habeas Corpus Act, 31, 32.
suspension of, 64.
Hayti, allusions to, an incentive to rebellion, 62, 115, 274, 423, 430.
Hostility to Crown constitutes rebellion, evidence of, 21, 127, 332
326—346.

Indemnity, Act of, 228.
Trish Rebellion Act, 42.
case under, 80.
Crown and Government Act, 44.

Jamaica, case of, 54.
statute as to martial law in, 46.
rebellion in, 110.
enquiry into, 229,

Judges, immunity of, 49, 97.

Martial law,
necessity for, 2—27, 51—69, 209—225.
what it is, 41, 55, 77, 79, 100, 107, 129, 187, 209, 309.
offences under, 61, 64.
continuance of, 366.
Military, power of,
when acting in aid of the civil power, 25, 254, 308.
when acting under martial law, 90.

authority supreme under martial law, 90, 129, 130, 174.
Mutiny, what is, 80, 81, 96.

Mutiny Act, 45, 93, 187.

Neutrality in rebellion,
not allowed, 140,

presumption arising from, 140
Numbers of rebels, 162, 171, 286, 329.

who snffered, 413.
( 451)

Opinions of eminent lawyers,
as to power of military when acting in
aid of the civil power, 26, 27, 81,
254, 308.
Opinions of persons in authority,
as to necessity for martial law, 289.
Orders to officers, 151, 325.
necessity for, 72, 88, 128.
by officers, 319, 340, 338.
acting under, 81.

Petition of right, 10, 91.
Prerogative of the crown,
as to the army, &c., 379.
Presumptions of hostility, 141, 321.
acted upon by officers, 322, 355.
Provost marshal, 136.
orders to, 137.
authority of, 205.
acts of, 360, 372, 575.
Prisoners taken under martial law, 146, 150, 156, 344.
how dealt with, 342, 347.
embarrassment occasioned by, 349

Rebellion is war, 1, 30, 163, 165.
may be formidable, without arms or organization, 1, 20, 21.
official reports as to, 284.
extent of, 286.
ringleaders in, 201, 163,
Redhanded, prisoners taken, 147.
Reports of officers, 154, 167, 170, 241.
sent to commander, 343.
Riot, law as to, 1, 5, 24, 30.

Secretary of State,

acts of ; acts of State, 49.

power of as to arrest, 64.

duty of to enquire into the execution of martial
law, 231, 251.

despatches, of, 224, 244.

authority of to issue commission of enquiry, 256,
300.

power of to enquire, 310, 320.
( 452

Sedition, law as to, 65.
Seditious words, 96.

under martial law, 105, 128, 187.
Soldiers, incitements to, 187.

Transportation, sentences of, under martial law,
Treason, law as to, 14, 191.
Trial by courts-martial, 66, 84, 90, 378.

locality of, 103, 178.

enquiry as to fairness of, 390.
Troops, deficiency of, 214, 225.

Usage, military,
scope of in martial law, 339.

War, what is, in rebellion, 1, 30.
usages of, under martial law, 339.
measures of, 89, 132, 320, 332, 335.
Wellington, order of,
opinion of, as to martial law, 131.

,

Women,
atrocities of, 378.
flogging of, 374,
Words, see sedition.
 

 

WORKS PUBLISHED BY STEVENS AND SONS.

Arnould’s Law of Marine Insurance.—Third Edition.
By D. MACLACHLAN, Esq. 2 vols, royal 8vo, 1866. Price £2 12s. 6d. cloth.

Russell on Crimes and Misdemeanours,—Fourth Edition.
By C.S GREAVES, Esq., QC., 3 vols. royal 8vo. Price 5/. 15s. 6d. cloth.

Smith’s Mercantile Law.—Seventh Edition. By G. M.
DOWDESWELL, Esq. Roya cloth, Price 1/. 16s.

 

“172.9 . * .

Phillips’s Law of Copyright.—The Law of Copyright in
Works of Literature and Art, and in the application of Designs. With the
Statutes relating thereto. By CHARLES PALMER PHILLIPS, of Lincoln’s
Inn, Esq., Barrister-at-Law. In 8vo. Price 12s. cloth.

“Mr. Phillips has shown, not only great diligence in collecting cases bearing upon the
various topics which he has treated, but considerable judgment in the mamner in which he has
dealt with them. He has spared no pains to make his work reliable as a legal text-book, and at
the same time equally useful to publishers, authors, artists, and other persons who are interested
in works of literature, art, or design. Ina word, such a book has long been wanted, and Mr.
Phillips has given abundant proof of his ability to meet the desideratum.”—Solicitor’s Journal,
Nov. 14, 1863.

Braithwaite’s Oaths in Chancery.—A Manual for the use
of “‘Commissioners to administer Oaths in Chancery ;” being a collection of officially
recognized Forms of Jurats and Oaths, with Explanatory Notes and Observations.
Second Edition. By THOMAS W. BRAITHWAITE, of the Record and Writ
Clerks’ Office. Feap. 8vo. 1864. Price 3s. 6d. cloth, lettered.

 

The Law relating to Mines, Minerals, and Quarries in
Great Britain and Ireland; with a Summary of the Laws of Foreign States, and
practical directions for obtaining Government Grants to work Foreign Mines. By
ARUNDEL ROGERS, Esq., of the Inner Temple, Barrister-at-Law. In 8vo. 1864.
Price 30s. cloth.

Levi’s Commercial Law.—International Commercial Law.

Being the Principles of Mercantile Law of the following and other Countries, viz.:—
England, Scotland, Ireland, British India, British Colonies,

Austria, Denmark, Hans Towns, Portugal, Sweden,
Belgium, France, Italy, Prussia, Switzerland,
Brazil, Germany, Netherlands, Russia, United States,
Buenos Ayres, Greece, Norwgy, Spain, Wurtemburg.

By LEONE LEVI, Esq., F.S.A., F.S.S., of Lincoln’s-Inn, Barrister-at-Law, Pro-
fessor of the Principles and Practice of Commerce at King’s College, London, &c.
In 2 vols. royal 8vo. Price 35s. cloth, lettered.

Pritchard’s Admiralty Digest—Second Edition. By
R. A. PRITCHARD, D.C.L., and W. T. PRITCHARD. With Notes of
A fom French Maritime Law, by ALGERNON JONES, in 2 vols. cloth.

rice 31.

Greenhow’s Shipping Law Manual, 1863.—A Concise

Treatise on the Law governing the Interests of Shipowners, Merchants, Masters,
Seamen, and other Persons connected with British Ships; together with the Acts
of Parliament, Forms, and Precedents relative to the subject, being specially in-
tended for popular Use in Seaport Towns. By WILLIAM THOMAS GREEN-
HOW, of the Middle Temple, Esq., Barrister-at-Law. 1 vol. 8vo. Price 20s. cloth.

Shelford’s Law of Highways, 1862.—The Law of High-

ways; including the General Highway Acts for England and Wales, and other
Statutes, with copious Notes of the Decisions thereon ; with Forms. The Third
Edition, corrected and enlarged. By LEONARD SHELFORD, Esq., of the Middle
Temple, Barrister-at-Law. With Supplement to 1864, by C. MANLEY SMITH.
lvol. 12mo. Price 15s. cloth.

*," The Supplement may be had separately, price 3s. sewed.

 

 

i)
a

 

 

 

WORKS PUBLISHED BY STEVENS AND SONS.

 

Smith’s Action at Law.—An Elementary View of the

Proceedings in an Action at Law. Ninth Edition. Adapted to the present
practice, by S. PRENTICE, Esq., Barrister-at-Law. 12mo. cloth. Price 12s.

Pulling’s Law of Attorneys, Notaries, &c.—Third Edi-

tion. A Summary of the Law and Practice relating to Attorneys, GENERAL and
SPeciaL, Attorneys-at-Law, Solicitors, Notaries, Proctors, Conveyancers, Scri-
yeners, Land Agents, House Agents, &c., and the Offices and Appointments usually
held by them. Their several qualifications and legitimate Province, Rights, Duties,
Privileges, Exemptions, Disabilities, and Liabilities in the general Practice of the
Law, in Legal Proceedings, in Legal Negotiations, and Legal Formalities. And the
Law of Costs as between Party and Party and Attorney and Client. By ALEX-

ANP file a F- MLI Waition, In
Svr

Thrin the
ii 1862 ;
th yurt of
Ci | 1862.
Re LING,
M s. 6d.
ol

Selw: 1s.—
~ Bank-
ru led by
th cloth.
B,

Thrin > an
Ty ul Dis-
ci 33, the
Ci 1 Law
of ons of
+h of the
M

illa 10n.

e A ct, 17
& LAR,
E

; tles

Gone ace of,

qa 3 and

4 ag the

et (Index.

i cloth.

Z : ec hheoe patra calaasr iat a

Ros ions.
60.
Scot ybate
cer’s

$s on

‘ders

Act,

oyal

: was

ton

Par] by

1ons
864,

 

@

 

a
aes
ahaa

Le

nega
a